Trump’s Executive Order Shielding Israel Wins Bipartisan Support

With election season heating up, almost any foreign policy issue emanating from the White House is bound to trigger partisan fighting. That’s what makes sweeping bipartisan support for President Trump’s executive order authorizing sanctions against the International Criminal Court [ICC] so striking.

The Netherlands-based ICC, whose membership includes the entire bloc of European Union states, has for years been laying the groundwork for a war crimes investigation targeting American troops who fought in the U.S. war in Afghanistan. The process would expose U.S. citizens to arrest and prosecution by the controversial tribunal.

The ICC is also pursuing a case against Israel for so-called “war crimes” committed in the 2014 Gaza War.

“This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body,” Secretary of State Mike Pompeo said last week regarding the ICC’s investigation of American “war crimes.” The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade court.”

“This is yet another reminder of what happens when multilateral bodies lack oversight and responsible leadership, and become instead a vehicle for political vendettas,” the secretary of state added.

The president’s executive order announced last week by Pompeo, Secretary of Defense Mark Esper, and Attorney General William Barr allows the government to impose financial sanctions and visa/travel bans on ICC officials who attempt to prosecute Americans or citizens of countries that are U.S. allies. Any individual or group lending assistance in any way to the ICC’s endeavors will be similarly sanctioned.

“We cannot, we will not stand by as our people are threatened by a kangaroo court,” Pompeo said, advising other nations that they, too, might find themselves the focus of illegal prosecution.

“I have a message to many close allies around the world,” Pompeo warned. “Your people could be next, especially those from NATO countries who fought terrorism in Afghanistan right alongside of us.”

If the ICC’s misplaced crusade was not halted, said Pompeo, military personnel who served honorably in Afghanistan “taking down terrorists” could be vacationing in Europe with their families and suddenly be thrown behind bars, “all on the initiative of some prosecutor in the Netherlands.”

The White House’s executive order came after explicit warnings were issued last month that sanctions would be forthcoming if the ICC refused to drop its investigation against American citizens and against Israel. Both countries are not members of the court—depriving the ICC of a necessary pre-condition, according to its own bylaws, to launch an investigation.

Unlike other White House moves that typically provoke fierce partisan brawls, Pompeo’s stinging rebuke to the ICC received broad congressional support.

Israeli Prime Minister Benjamin Netanyahu spoke by phone on Monday with Pompeo, thanking him for the “important actions” the United States has taken against the International Criminal Court, Israeli and American news outlets reported.

ICC Warned Against Attempting to Assert Jurisdiction Over Israel

The president’s executive order climaxed several weeks of deliberations, informed sources say. After a brief visit to Israel last month, Pompeo issued a formal statement reiterating Washington’s “longstanding objection to any illegitimate ICC investigations” into Israel, and warning that any attempt to assert jurisdiction over Israelis would “exact consequences.”

Pompeo’s statement outwardly concerned Israel, but as the United States is itself a target of ICC investigation regarding operations in Afghanistan, the warning also telegraphed a broader message.

“A court that attempts to exercise its power outside its jurisdiction is a political tool that makes a mockery of the law and due process,” the secretary of state said.

An investigation of Israel and the United States could lead to serious legal implications for high-level politicians, officials, and military officers of the two countries. The prosecutor is likely to subpoena many of them for questioning. In the event that they ignore these summons, which they are likely to do, the prosecutor could then issue international orders for their arrest.

Technically, they could then be arrested and extradited to the Court if they were to visit any of the 123 countries that are party to the Rome Statute—which includes most of Europe.

[If the Court ever dared to arrest and imprison an American citizen, senior officials have said, the United States would use force to release that individual.]

Close to 70 senators and over 250 representatives from both parties penned congressional letters urging Pompeo to shield Israel from a potential ICC investigation.

Out of the 100 Senate members, 69 signed the letter; 43 Republicans and 26 Democrats, while the House version was signed by 262 members—93 Democrats and 169 Republicans—roughly 60 percent of the legislators.

The letters came as a response to ICC prosecutor Fatou Bensouda’s announcement that she had acquiesced to the P.A.’s request to open an investigation into alleged war crimes committed by Israel in the 2014 Gaza war (Operation Protective Edge), in addition to alleged crimes in the West Bank’s “occupied territories.”

ICC and the Palestinian Game Plan

The ICC was established by the Rome Statute of 2002, a treaty ratified by 123 countries. Its mission was to investigate crimes against humanity and war crimes, such as genocide, committed by countries that refuse or are unable to investigate their own citizens.

The Israeli case does not meet any of these fundamental conditions. ICC prosecutor Fatou Bensouda has thus violated the ICC’s own rules and procedures for the express purpose of going after Israel.

This appears to be part of the Palestinian game-plan dating back to 2015, when the PA joined the ICC with the explicit aim of trying to take ICC action against Israeli officials for alleged “war crimes” in the 2014 Gaza war.

Bensouda’s script seems to come straight out of the Palestinian playbook. She appears determined to act not only on the allegations of Israeli “war crimes” in Gaza, but also on the question of “whether efforts by Israeli authorities to disperse demonstrations along the Gaza border fence, constitute a disproportionate use of force that rises to the threshold of an international crime.”

A third issue she announced is under investigation is whether Israel “unlawfully facilitated the transfer of a population into an occupied territory”—in this case promoting Israeli settlement in the West Bank.

“The claim by the prosecutor of the ICC that Jews do not have a right to live in the Jewish homeland is pure anti-Semitism,” said Israeli Prime Minister Netanyahu. “So is the claim that Jews have no right to defend themselves against those who seek their annihilation.”

According to Washington D.C.-based international law expert Dr. Eugene Kontorovich, Bensouda’s positions lack all foundation, particularly her focus on “population transfers into an occupied territory.”

“She’s apparently come to the absurd decision that a non-country can sue a non-member of the ICC for a non-crime that nobody has ever been prosecuted for,” he told JNS.

Since the founding of the world court, both Israel and the United States refrained from joining the ICC precisely because they suspected that it would be another profoundly biased UN body.

The United States also objected to its broad prosecutorial powers and lack of accountability. There were concerns arising at the time of the tribunal’s creation that U.S. personnel stationed abroad could face politicized prosecutions.

Many of these apprehensions have clearly been borne out.

The tribunal is supposed to operate under the principle that it activates only when it perceives national authorities as unwilling or unable to conduct a genuine prosecution of its citizens. Its overreaching suggests it has completely lost its way.

A Bid for the Big League

Critics have derided the ICC for excessively slow proceedings, weak internal management, extravagant spending and ineffective prosecutions. With a budget of some $2 billion since its founding 18 years ago, the ICC has accomplished only four convictions, all of them targeting war criminals from the Democratic Republic of Congo.

The court has long faced pressure from African leaders angry with its tendency to pursue cases solely in Africa, and in 2017 the African Union passed a resolution calling for its members to withdraw from the court, noted the National Review. South Africa, Kenya and Gambia were the first countries to withdraw, followed by several others.

That drove the ICC to begin looking into cases with a more diverse geographic base as well as a higher-profile. Its attempt to haul the United States and Israel into the dock and thereby bolster its reputation with some big wins appears to be part of a strategy.

Could it be mere coincidence that the same year the African Union began pulling its members out of the ICC, Bensouda began amassing evidence of alleged U.S. war crimes in Afghanistan? In November 2017, she announced that she had enough evidence to open an investigation. As she was later to do in the Israel case, she asked a pre-trial panel of three judges to authorize the investigation.

The U.S. administration strongly censured her, canceled her visa to the United States, and threatened to prosecute her, her staff and even ICC judges in a U.S. court. Apparently, the severe threats influenced the pre-trial judges, who did not allow Bensouda to continue her investigation.

She appealed the decision, however, and succeeded in getting the pre-trial panel’s decision reversed, whereupon she forged ahead with her investigation.

The pushback has been scathing, with critics slamming the ICC for posturing as an omnipotent super-court with self-proclaimed universal jurisdiction.

“This institution has become in practice a little more than a political tool employed by unaccountable international elites,” Attorney General Barr elaborated at the press conference announcing the executive order.

“The Department of Justice has received credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels in the office of the [ICC] prosecutor,” said Barr. He said the court was being manipulated by Russia and hinted there could be more actions against the ICC.

“The measures announced today,” Barr noted, “are an important first step in holding the ICC accountable for exceeding its mandate and violating the sovereignty of the United States.”

ICC: ‘Palestine is Enough of a State’

Under the Rome Statute, the ICC can proceed with a prosecution only in sovereign countries that delegate jurisdiction to the international court. But which state could delegate jurisdiction to the ICC in the case of the Palestinian territories—the fictional “State of Palestine?

“We do not believe the Palestinians qualify as a sovereign state,” stated Pompeo at a recent press conference announcing the president’s executive order against ICC. Even the United Nations has not formally recognized the Palestinian Authority as a state.

Eight countries from all continents but Asia—Germany, Austria, Hungary, Brazil, Uganda, the Czech Republic, Australia, and Canada—delivered a formal objection to Bensouda’s plan to prosecute Israel, incorporating many of the aforementioned arguments.

Germany’s objection is especially important because it is considered one of the strongest supporters of the ICC. Dozens of non-governmental bodies and experts have also filed objections. Not surprisingly, Bensouda dismissed all this opposition. “Palestine is enough of a state,” she declared, eager to transfer criminal jurisdiction over its territory to The Hague.

She then claimed to have legal grounds to set in motion an investigation into alleged war crimes committed by Israel in the “Occupied Palestinian Territory,” or the West Bank, Gaza Strip and eastern Jerusalem. Her choice of terms seemed specifically designed to demonize Israeli “settlement activity” in Yehuda and Shomron.

Secret Collusion Between ICC and Palestinian Groups

According to Palestinian Media Watch [PMW], there have been contacts at the highest level between the ICC and the Palestinian Authority suggesting collusion in charging Israel with crimes.

News reports recently revealed that Bensouda advised Palestinian officials on how to obtain a decision from the Court to investigate and indict Israel, and that she collaborated with Palestinian organizations while preparing her brief for the pre-trial judges. All of this conduct violates ICC rules.

A recent study published by the Jerusalem Center for Public Affairs and cited by JNS, highlights the ICC’s collaboration with four radical NGOs: Al-Haq, Al-Dameer, Al-Mezan and the Palestinian Center for Human Rights, some of which are affiliated with terror organizations.

The study tracks the efforts of these bodies to promote complaints against the United States and Israel at the ICC.

Citing a more serious charge, PMW director Maurice Hirsch, speaking to Jerusalem Post, accused the ICC of colluding with the P.A. to hide payments to terrorists to avoid breaking rules on donor funding.

The recent surfacing of Bensouda’s unsavory personal history has compounded doubts over her suitability to serve as prosecutor at the ICC. Victims have come forward who claim that when she served as justice minister of Gambia, she was an integral part of a brutal regime guilty of oppression and serious human rights violations.

Bensouda held the post of justice minister under Gambia’s former dictator Yahya Jammeh, and has been accused of turning a blind eye to torture and inhumane treatment of prisoners whom she prosecuted. (Bensouda has denied knowledge of this torture.)

She had been accused of demonstrating “bias and close ties to Palestinian officials, some of whom should be tried for real war crimes themselves,” wrote Hirsch.

He also noted broad evidence of prosecutorial bias, the Jerusalem Post article said, as well as the omission by Bensouda of all mention of Arab terrorism or Gaza rocket attacks against Israelis as context for Israeli defense activities.”

 

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Members of Congress Rally to Israel’s Defense

“We urge you to continue your vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court,” began the Senate letter, to Secretary of State Mike Pompeo, spearheaded by U.S. Senators Rob Portman, R-OH and Ben Cardin.

“ICC actions currently underway could lead to the prosecution of Israeli nationals despite the fact the ICC does not enjoy legitimate jurisdiction in this case,” the letter said.

“By accepting Palestinian territorial claims over the West Bank, East Jerusalem and Gaza, the Prosecutor is making a political judgment that biases any subsequent investigation or trial,” the Senate letter stated, calling the effort “discriminatory against Israel.”

The letter from the House of Representatives, initiated by Congresswoman Elaine Luria, D-VA, and Congressman Mike Gallagher, R-WI, mirrored the same concerns as the Senate version. It urged the secretary of state to call on the ICC to halt its politically motivated investigations into the United States and Israel.

“The ICC is intended as a venue of last resort for the most serious international crimes,” wrote Luria on her congressional website. She noted that politics have infiltrated the ICC,” raising doubts about its ability to fairly adjudicate the Israeli-Palestinian conflict.

“This is yet another example of the international community’s disproportional attacks on Israel,” Luria observed. “I appreciate the resounding bipartisan support of my House colleagues on this matter.”

“It’s hard to get two Members of Congress to agree on anything, let alone more than 260,” said Congressman Gallagher.This overwhelming, bipartisan response is a testament to how the ICC’s politicized actions threaten its intended purpose.”

58-year old Fatou Bensouda, the ICC’s lead prosecutor, began her career in the Gambian capital in 1994, five months before the coup d’etat that enabled dictator Yahya Jammeh to seize power.

By 1995, she was Deputy Director of Prosecutions and promoted to Chief State Counsel the following year. She then became Solicitor General and legal advisor to Yahya Jammeh, reporting directly to him. And in 1998, she was appointed Attorney General and Minister of Justice, a position she would hold for two years.

Thus, during the first six years of the dictatorship, until she left for Rwanda in 2002, Fatou Bensouda enjoyed a meteoric career. She reached the pinnacle of judicial power working for a brutal, repressive regime marked by the systematic practice of torture, fabrication of evidence, illegal detentions, state kidnappings, and deaths in custody.

These horrors came to light in 2019 when Jammeh’s dictatorship was toppled after a 22-year reign of terror, reported an ABC news article. Under the new government’s Truth, Reconciliation and Reparations Commission, Bensouda’s role as chief prosecutor under Jammeh was criticized, with former prisoners accusing her of turning a blind eye to the atrocities committed by the Gambian dictator.

There are those who feel her years serving one of the world’s worst modern-day dictatorships should have disqualified her from presiding over the International Criminal Court, at least until her own past record under Jammeh has been evaluated.

International law expert Dr. Eugene Kontrovich has confirmed that “whether the chief prosecutor has herself been involved in human rights abuses is… of legitimate interest.”

Bensouda may have been “only” passively involved in Jammeh’s human rights abuses, Dr. Kontrovich added, but “those whom she purports to prosecute” (i.e. the United States and Israel) “have a right to know whether she applies the same standards on the facilitation of crimes to her own conduct.”

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Prosecutor With A Tainted Past

58-year old Fatou Bensouda, the ICC’s lead prosecutor, began her career in the Gambian capital in 1994, five months before the coup d’etat that enabled dictator Yahya Jammeh to seize power.

By 1995, she was Deputy Director of Prosecutions and promoted to Chief State Counsel the following year. She then became Solicitor General and legal advisor to Yahya Jammeh, reporting directly to him. And in 1998, she was appointed Attorney General and Minister of Justice, a position she would hold for two years.

Thus, during the first six years of the dictatorship, until she left for Rwanda in 2002, Fatou Bensouda enjoyed a meteoric career. She reached the pinnacle of judicial power working for a brutal, repressive regime marked by the systematic practice of torture, fabrication of evidence, illegal detentions, state kidnappings, and deaths in custody.

These horrors came to light in 2019 when Jammeh’s dictatorship was toppled after a 22-year reign of terror, reported an ABC news article. Under the new government’s Truth, Reconciliation and Reparations Commission, Bensouda’s role as chief prosecutor under Jammeh was criticized, with former prisoners accusing her of turning a blind eye to the atrocities committed by the Gambian dictator.

There are those who feel her years serving one of the world’s worst modern-day dictatorships should have disqualified her from presiding over the International Criminal Court, at least until her own past record under Jammeh has been evaluated.

International law expert Dr. Eugene Kontrovich has confirmed that “whether the chief prosecutor has herself been involved in human rights abuses is… of legitimate interest.”

Bensouda may have been “only” passively involved in Jammeh’s human rights abuses, Dr. Kontrovich added, but “those whom she purports to prosecute” (i.e. the United States and Israel) “have a right to know whether she applies the same standards on the facilitation of crimes to her own conduct.”