An immoral Trump tries to shield US, Israel from ICC accountability

These sanctions include freezing the US-based property and assets of individuals, and barring them and their families from entering the US.

In 2017, ICC prosecutor Fatou Bensouda requested from the court authorization to investigate "acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period" committed by US military and CIA personnel.

She simultaneously requested to investigate the actions of the Taliban and Afghan national forces as well.

In March 2020, an appeals chamber of the ICC overruled a 2019 pre-trial chamber decision to reject the request for an investigation, allowing for the investigation to proceed and opening up the possibility of prosecuting US personnel.

And in December 2019, Bensouda announced that "following a thorough, independent and objective assessment of all reliable information," she would open an investigation into the situation in Palestine. She is currently awaiting a pre-trial chamber "ruling on the scope of the territorial jurisdiction" of the ICC in Occupied Palestinian Territory.

Her nearly five-year preliminary investigation focused on allegations of war crimes and crimes against humanity committed by Israel through its colonisation of Occupied Palestinian Territory, and its attacks on Palestinians in the Gaza Strip during Operation Protective Edge in 2014 and in response to the 2018 Great Return March.

Instead of attempting to act multilaterally, the United States roguishly slapped unilateral sanctions on ICC personnel

Similar to the ICC's investigations regarding Afghanistan, Bensouda is also examining the actions of the Palestinian Authority, Hamas, and other Palestinian armed groups.

Trump's sanctions come hard on the heels of congressional letters, written by the American Israel Public Affairs Committee and sent to the Trump administration last month, urging the Department of State to exert maximum leverage to kill the ICC investigations of US and Israeli personnel in Afghanistan and Palestine.

The House of Representatives' version of the letter, spearheaded by the bipartisan team of Reps. Elaine Luria (D-VA) and Mike Gallagher (R-WI) and signed by 262 others, explicitly tied the two cases together. It urged Secretary of State Mike Pompeo "to marshal a diplomatic initiative with like-minded countries who are members of the ICC to call on the ICC to cease its politically motivated investigations into the United States and Israel."

However, instead of attempting to act multilaterally, the United States roguishly slapped unilateral sanctions on ICC personnel. In announcing last week's sanctions, Pompeo dismissed the ICC as a "kangaroo court" and its investigation of war crimes in Afghanistan as a "persecution of Americans". Sanctioning the ICC in an attempt to prevent the prosecution of war crimes by US personnel is "the essence of America First foreign policy," he claimed. 

Read more: Israeli panic over ICC war crimes probe shows Palestinians the way forward

Pompeo also directly responded to the congressional letter, accusing the ICC of "putting Israel in its crosshairs for nakedly political purposes". 

Although Trump's Executive Order does not mention Israel by name, it imposes the same set of sanctions against foreign persons who "have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country's government."

The order defines ally as a "major non-NATO ally," a short list which includes Australia, Egypt, Israel, Japan, the Republic of Korea, and New Zealand.

Since none of these other countries are currently under examination by the ICC, it is evident that the purpose of including non-NATO allies in the Executive Order is to single out Israel for special treatment and to put forward a political and legal doctrine of dual exceptionality, attempting to place the United States and Israel alone above international law and accountability.  

The ICC investigations against both the United States and Israel, and those countries' responses, bear some striking resemblances. First, both are based on actions taken by these countries outside their borders. In the US case, to prosecute its geographically indeterminate, never-ending "war on terror", and, in Israel's case, to entrench its more than half-century military occupation and illegal colonisation of Occupied Palestinian Territory.

These scant judicial proceedings cover up a much larger culture of impunity that enables both countries to commit systemic human rights abuses

Because both investigations focus on actions outside their territorial sovereignty, and because neither party has acceded to the Rome Statute and joined the ICC, both the United States and Israel falsely claim that the ICC has no jurisdiction over their actions. This interpretation conveniently neglects the fact that both Afghanistan and the State of Palestine are members of the ICC and are the geographical venues in which the alleged war crimes occurred, conferring jurisdiction on the ICC.

Finally, both the United States and Israel incorrectly allege that their countries have robust judicial mechanisms to adequately respond to any alleged war crimes committed by its personnel and to hold them accountable domestically, bypassing the need to involve the ICC, which is supposed to be a court of last resort.

However, both countries have a tarnished record of prosecuting only a paltry number of personnel alleged to have commited war crimes, and securing convictions with meaningful sentences for even fewer. Meanwhile, these scant judicial proceedings cover up a much larger culture of impunity that enables both countries to commit systemic human rights abuses.

The United States and Israel are attempting to leverage pressure against the ICC to ensure their continued unaccountability. Hopefully, ICC personnel will be undeterred by these sanctions, see through their investigations into alleged US and Israeli war crimes, and reject the threadbare doctrine of dual exceptionality.