US will block any investigation of US soldiers by the International Criminal Court (ICC)

(March 6) US Secretary of State Mike Pompeo claimed that the International Criminal Court (ICC) investigation of possible war crimes by the US, Taliban, and others in Afghanistan undermines the peace deal signed February 29 with the Taliban.

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Pompeo criticizes the ICC

The US does not recognize the court and had always opposed its formation. Pompeo said that the court was an unaccountable political institution masquerading as a legal body. Pompeo claimed it was reckless to even suggest an investigation after a peace deal was reached, and he said that the US would take all necessary measures to shield US personnel from the investigation,

US policy has often been to undermine the ICC

The US has taken a number of measures against the ICC but different US governments have had differing and complex relations with the court as a Wikipedia article points out. Under US law the court cannot even investigate any US personnel accused of war crimes. The US State Dept. is restricting visas of ICC officials to make sure that they do not come to the US to investigate any Americans.

In September 2018, President Donald Trump criticized the ICC before the United Nations. In April of 2019 the US revoked the visa of Fatou Bensouda the Prosecutor of the International Criminal Court in anticipation of a later investigation into US war crimes in Afghanistan. The investigation was eventually authorized in March of 2020.

American Service-Members' Protection Act (ASPA)

The ASPA was enacted August 2 in 2002. The aim of the federal law is "to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party."

The act authorizes the US president to use all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by on behalf of or at the request of the ICC. This provision has led to ASPA being nicknamed the Hague Invasion Act. ASPA prohibits US federal, state, and local governments including courts and law enforcement agencies from assisting the ICC. For example no person can be extradited from the US to the ICC. The act also bans US military aid to countries that are party to the court. However, there are numerous exceptions and waivers.

Bilateral Immunity Agreements (BIAs)

A Wikipedia article explains the background of the BIA: "Article 98 of the Rome Statute prohibits the ICC from requesting assistance or the surrender of a person to the ICC if to do so would require the state to "act inconsistently" with its obligations under international law or international agreements unless the state or the third-party state waives the immunity or grants cooperation.[62] The U.S. has interpreted this article to mean that its citizens cannot be transferred to the ICC by any state that has signed a bilateral agreement with the U.S. prohibiting such a transfer, even if the state is a member of the Rome Statute. The U.S. actively pressured states to conclude such so-called Article 98 agreements, otherwise known as bilateral immunity agreements (BIAs)."

By 2006 over one hundred BIA's were in place. Several countries lost aid both military and other aid because they refused to sign such agreements. However, by 2009 with Obama in office the aid restrictions on those not signing BIAs were dropped. Restrictions under ASPA had also been repealed under Bush

Previously published in the Digital Journal

Gadaffi's son Saif said to have been released from jail

Saif Gadaffi, son of former Libyan leader Muammar Gadaffi was reported to have been released from jail even though he was sentenced to death by a Libyan court in absentia in 2015 for crimes committed during the uprising against his father.

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Lawyer Karim Khan said Saif was given his liberty back on April 12. Khan claimed that Saif was released under an amnesty and "in accordance with Libyan law." Presumably this is a law emanating from the House of Representatives (HoR). Khan did not say whether he had spoken to Saif but said that he was well and safe within Libya.

Saif was thought to have been a likely successor to Gadaffi had he not been overthrown. He was held since 2011 by a militia in Zintan in an area not within the control of the UN-backed Government of National Accord (GNA) nor of the former Salvation government and thus his death sentence July 28, 2015 was never carried out. The court was of the former Salvation government based in Tripoli, now basically superseded by the UN-brokered Government of National Accord (GNA). The trial was condemned by Human Rights Watch, who claimed it was filled with legal flaws and amid what the group called widespread lawlessness that undermined the credibility of the judiciary.

Saif is also wanted by the International Criminal Court (ICC) in The Hague. The court issued an arrest warrant in 2011 on preliminary charges that Saif had committed crimes against humanity, and murder as part of his father's inner circle. Khan said he will file an application to make the ICC case inadmissible on the grounds that Saif had already been tried in Libya. He claimed to try him again would be "double jeopardy" or trying a person twice for the same offence.

There are several tweets on the issue. The first one says: 1/2 Just spoke to Saif al-Islam Gaddafi attny Karim Khan who confirms his client was freed under #Libya amnesty since April 12th. The second one: ‏@FrancoisF24 2/2 Attny won't disclose #SaifAlIslam's location, says he will argue for #ICC to drop its case, argues against trying twice' .

Said has a PH.D. from the London School of Economics, Charges have been made that his thesis was plagiarized but a review panel in November of 2011 ruled that it should not be revoked.

Palestine applies for membership in International Criminal Court

The Palestinian Authority on Friday took further steps towards joining the International Criminal Court and has asked the court to investigate crimes Israel has committed on Palestinian territories since June 13, 2014, according to ICC sources.

A US senior State Department official told Reuters that the move could have implications for US aid to Palestine saying: “It should come as no surprise that there will be implications for this step, but we continue to review. U.S. assistance to the Palestinian Authority has played a valuable role in promoting stability and prosperity not just for the Palestinians, but also for Israel as well." If there is an investigation launched it could be focused on the long war on Gaza that began on July 8 of last year. However, the Palestinians also seek an investigation into the continuous building and expansion of Israeli settlements in Palestinian territory. These settlements are considered illegal under international law. Any probe could begin once Palestine becomes a full member of the ICC and signs the Rome Statute.

 Relevant documents, the instruments of ratification were delivered to UN Assistant Secretary-General for Legal Affairs, Stephen Mathias, by Riyad Mansour the Palestinian Ambassador to the UN. The ICC has recognized the UN General Assembly's recognition of Palestine as an observer state. It will take at least 60 days for Palestine to become a member of the court. Benjamin Netanyahu, the Israeli Prime MInister, urged the ICC to reject that Palestinian request to join since they are not yet ranked as a state: AFP reported Netanyahu as saying: “We expect the ICC to reject the hypocritical request by the Palestinian Authority, which is not a state but an entity linked to a terrorist organization." Netanyahu was referring to the fact that the Palestinian Authority now rules in a unity government with Hamas, which is classified by the US, Israel and some other countries as a terrorist organization.

The Palestinian status at the UN was upgraded from observer entity to observer state in 2012 opening up the possibility of joining the ICC as well as numerous other international organizations. US State Department spokesperson, Edgar Vasquez, claimed the Palestinian move would be counter-productive and do nothing to help Palestinians achieve a sovereign and independent state: “It will badly damage the atmosphere with the very people with whom they ultimately need to make peace."

 Palestine had threatened to make this move if a resolution presented to the UN security council to establish a timetable for an Israeli pullout from occupied territories among other items, failed to pass. The motion was defeated by one vote but would have been vetoed by the US in any event.

Juan Cole claims that if an investigation does go ahead by the ICC the court could very well find that specific Israeli officials were guilty of violations of the Rome Statute of 2002: Article 7 forbids “Crimes against Humanity,” which are systematically repeated war crimes. Among these offenses is murder, forcible deportation or transfer of members of a group, torture, persecution of Palestinians (an “identifiable group”) and “the crime of Apartheid.” Cole claims that the Israeli government murdered Palestinian political leaders and routinely expelled Palestinians from parts of the West Bank. Building squatter settlements on Palestinian land and excluding Palestinians he cites as an example of an Apartheid policy. Cole says that convicting Israelis under Article 7 would be "child's play for the prosecutor". The ICC can only work through member states but it could authorize states to capture and imprison convicted authorities. Israel could also be subject to legal reparations that might threaten Israeli business interests and operations in Europe, as well as making travel to some countries for convicted officials hazardous. Sudanese president Omar Bashir is already in the position of not being able to visit Europe without risking arrest after his conviction by the ICC.

Libya: Rights groups claims NATO committed human rights violations in attacks

  Three Middle Eastern human rights groups have published a report claiming that all three groups in the Libyan conflict NATO, rebels, and Gadaffi loyalist committed human rights violations. The Independent Civil Society Mission to Libya interviewed eye-witness and victims of attacks in areas targeted by NATO air attacks.
   The report  notes that some civilian sites were classified as military targets. The group noted attacks on Sirte in particular. Sirte was one of the last strongholds of Gadaffi loyalists. According to reports 47 civilians were killed in NATO attacks.
  The International Criminal Court said last November it would investigate the actions of NATO forces. Anders Fogh Rasmussen said:"We have carried out this operation very carefully, without confirmed civilian casualties." This type of statement mirrors that of  U.S. authorities about drone strikes.
    UN Secretary General Ban Ki-moon joined in the chorus of praise: "Security Council resolution 1973, I believe, was strictly enforced within the limit, within the mandate," What was abundantly clear is that the attacks were designed to help the rebels not protect civilians. When rebels attacked a city there were no attempts to destroy weapons being used to attack. Politicians openly talked of regime change being the aim and obviously arms flowed in from other countries to the rebels and there were even special forces from NATO nations on the ground. For more see this article.