MARIÂNGELA BERQUÓ enfoca a Geopolítica: Reality check : The USA vs the ICC

Before today's articles, let us take a look at Pope Francis's visit to Iraq

If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.

Finally, the Trump administration is gone. However, are American vicious attacks on the International Criminal Court (ICC) over?

Before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?

All signs point towards a return to piecemeal engagement, where Washington uses the court when it suits its interests and undermines it when it does not. Biden has said the United States is “back”. But on international justice, there’s a need to be different – and better.

The relationship between the US and the Hague-based court has always been tumultuous.

While the US – as well as its partner in crime, Israel - has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the court and also been affected by it.

President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.

When George W Bush came to power, he immediately embarked on a hostile campaign against the ICC. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised 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 International Criminal Court”. This authorisation, which meant Washington could use military force against the court, led the law to be nicknamed “the Hague invasion act”.

The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.

When the Obama administration took over, it stated its intent to “positively engage” with the court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with it. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.

During the Obama years, American cooperation was invaluable for the court. By sharing evidence and ensuring that the court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.

But the Obama administration’s partial engagement with the court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the court’s reach, while those that lacked US support were readily investigated by ICC.

Then came Donald Trump. The Trump administration was hostile towards the court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one-time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court”.

Trump was hostile to the ICC because he feared that the court may soon start issuing warrants for US officials following its investigation into alleged war crimes in Afghanistan. Moreover, he wanted to thwart any move by the court to open an investigation into alleged Israeli atrocities in Palestine.

To ensure US officials and allies remain beyond the reach of the ICC, the Trump administration not only embarked on a propaganda campaign against the court, but also took action to intimidate its staff. It issued sanctions against the ICC’s Chief Prosecutor Fatou Bensouda and the head of its Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko.

With Joe Biden in the White House, is it certain that Washington will not be as hostile towards the court as it was during the Trump era?

Many are optimistic that the Biden administration will pave the way for closer cooperation between the US and the ICC. But expectations need to be measured. I am not so sure about that.

The ICC and Washington remain on a collision course over the investigation into the alleged atrocities in Afghanistan. Like every administration before it, this one will not tolerate ICC warrants against American citizens involved in alleged war crimes in Afghanistan. Moreover, even under Biden’s leadership, Washington will not support any investigation into the alleged atrocities committed by its accomplice in crime Israel in its project of ethnic cleansing of Palestine.

Biden already demonstrated his stance on these issues, and his ambivalence towards the ICC, in both subtle and obvious ways. Biden has a close relationship with former President Bush, who was in the White House when all of the alleged war crimes in Afghanistan under investigation by the ICC were committed. While several Biden administration officials have said that they will “take action” against those responsible for the post-9/11 torture programme, Biden feted Bush during and after his inauguration, sending a clear message to the international community that he has no intention of holding him or his administration to account for their alleged crimes. Biden is also a staunch supporter of Israel and repeatedly said he is proud of Washington’s special bond with Tel Aviv. While he is not as protective of the current Israeli leadership as Trump, there is no indication that his administration will abandon the longstanding US policy of protecting Israel from being prosecuted for its alleged crimes against the Palestinians at the ICC.

Biden also decided not to issue an executive order to immediately rescind the sanctions his predecessor imposed on ICC staff. Instead, the Biden State Department has placed the sanctions under “review”. This can be read two ways. On the one hand, it may be a sign that the administration is preparing to reverse course. On the other hand, it can be viewed as an effort to appear supportive of global criminal justice without actually doing anything. Indeed, what is there to review? Sanctions are a tool that should be used against dictators and war criminals, not people who are working to hold them to account.

By not immediately rescinding the sanctions against Bensouda and Mochochoko Biden sent a clear message to The Hague: Trump may be gone, but Washington can still use coercive measures to bring the court in line if it dares to proceed with investigations and prosecutions that are not in line with US interests.

Like all his predecessors, Biden is less interested in supporting the ICC than catering to his own base. If a bi-partisan anti-ICC letter issued last year by US senators is any indication, that base is still willing to attack the ICC over prospective trials of American political and military figures.

And Kamala Harris quick support of Israel against the ICC condamnations proves that US position will duel unchanged.

So far, all signs indicate that Biden’s relationship with the ICC will be similar to Obama’s – a partial and conditional cooperation, where the US helps and supports the ICC when it serves its interests, but undermines the court whenever it voices a desire to investigate the alleged crimes of the US and Israel’s.

Since winning the presidential election, Biden has insisted that “America is back”. Indeed, when it comes to Washington’s approach to international justice, the hypocrisy that dominated the Obama years appears to be back in action. That must change if Biden is to build USA’s reputation as a moral and political leader on the world stage. Unles it is too late for that, as Russia and China are stepping up their involvement and pressures for meaningful changes in world leadership in all fields.

PALESTINA

On February 4, representatives from the Palestinian Movement, Hamas, visited Moscow to inform the Russian government of the latest development on the unity talks between the Islamic Movement and its Palestinian counterparts, especially Fatah.

This was not the first time that Hamas’s officials traveled to Moscow on similar missions. In fact, Moscow continues to represent an important political breathing space for Hamas, which has been isolated by Israel’s Western benefactors. Involved in this isolation are also several Arab governments which, undoubtedly, have done very little to break the Israeli siege on Gaza.

The Russia-Hamas closeness is already paying dividends. On February 17, shipments of the Russian COVID-19 vaccine, Sputnik V, have made it to Gaza via Israel, a testament to that growing rapport.

While Russia alone cannot affect a complete paradigm shift in the case of Palestine, Hamas feels that a Russian alternative to the blind and conditional American support for Israel is possible, if not urgent.

It is time to liberate the discussion on the Hamas from the confines of the reductionist Western media’s perception of the Movement as terrorist. Hamas must b e viewed as a political actor, whose armed resistance is only a component in a complex and far-reaching strategy.

As Moscow continues to cement its presence in the region by offering itself as a political partner and, compared with the US, a more balanced mediator between Israel and the Palestinians, Hamas sees the developing Russian role as a rare opportunity to break away from the US-Israel imposed isolation.

Russia was a member of the Quartet that was set up in 2003 but, of course, as a member of the (United Nations) Security Council, it has always had an ability to inform the discourse on Palestine. In light of “the gradual demise of American influence, Russia realized that there was an emerging vacuum in the region, particularly after the (Arab) uprisings.”

With regard to Hamas and Russia the relationship took off after the Palestinian elections in 2006 but it was not Hamas’s initiative, it was Russian President Vladimir Putin who, in a press conference in Madrid after the election, said that he would be willing to host Hamas’s leadership in Moscow. Because Russia is looking for a place in the region.

Hamas’s willingness to engage with the Russians has more than one reason, chief among them is the fact that Moscow, unlike the US, refused to abide by Israel’s portrayal of the Movement. The fundamental difference between Russia and the United States and China … is that the Russians and the Chinese do not recognize Hamas as a ‘terrorist organization’; they have never done so, unlike the Americans, and so it made it easy for them to engage openly with Hamas.

The 1993 Oslo Accords represented a watershed moment, not only for Hamas but also for the entire Palestinian liberation struggle. The shift towards a US-led ‘peace process’ compelled Hamas to maintain a delicate balance “between strategic objectives and tactical flexibility.

Hamas sees foreign relations as an integral and important part of its political ideology and liberation strategy. Soon after the Movement emerged, foreign policies were developed to help its leaders and members navigate this tension between idealism and realism. This pragmatism is evident in the fact that Hamas was able to establish relations with the regimes of Muammar Gaddhafi in Libya and Bashar al-Assad in Syria, both of whom were fiercely opposed to the Muslim Brotherhood.

From the very beginning, Hamas adopted certain principles in respect to its international relations and, later on, in the formation of a foreign policy. Among these, there is a question of maintaining its independence of decision-making; non-alignment in conflicting blocks, avoidance of interference in the affairs of other states.

It is a delicate balance, and a difficult one to maintain because, at this stage, when movements are regarded and regard themselves as liberation movements, they need to have higher moral and ethical standards than, for example, governments. For some reason, we expect that governments have to make difficult choices but, with liberation movements, we don’t, because they are all about idealism and creating an ideal society, etc.

When the liberation movement in South Africa was exiled, they took a similar kind of position. While some of them might have had a particular allegiance to the Soviet Union or to China, some of them also had strong operations in European countries, which they regarded as part of the bigger empire. Nevertheless, they had the freedom to operate there. Some of them operated in other African countries where there were dictatorships and they got protection from those states.

Specialists on the matter list six principles that guide Hamas’s political agenda. One of these guiding principles is the “search for common ground.”

In addressing the question of Palestinian factionalism, everyone agrees that while Fatah has failed at creating a common, nominally democratic platform for Palestinians to interact politically, Hamas cannot be entirely blameless. If that is, indeed, the case, can one then make the assertion that Hamas has succeeded in its search for the elusive common ground?

Although Hamas won convincingly the elections in 2006 and they could have formed a government, they decided to opt for a government of national unity. They offered to Palestinian Authority President Mahmoud Abbas and to (his party) Fatah to come into a government of national unity. They didn’t want to govern by themselves. And that, to me, is emblematic of their vision, their commitment to national unity.

But the question of national unity, however coveted and urgently required, is not just controlled by Palestinians.

The PLO is the one that signed the Oslo Accords and it may be one of Hamas’s weaknesses: as much as it wants national unity and a reform of the PLO, the fact of the matter is Israel and the West will not allow Hamas to enter into the PLO easily, because this would be the end of Oslo.

On January 15, Abbas announced an official decree to hold Palestinian elections, first presidential, then legislative, then elections within the PLO’s Palestine National Council (PNC), which has historically served as a Palestinian parliament in exile. The first phase of these elections is scheduled for May 22.

But will this solve the endemic problem of Palestinian political representation? Moreover, is this the proper historical evolution of national liberation movements – democracy under military occupation, followed by liberation, instead of the other way around?

There is a dichotomy. On the one hand, elections are an opportunity for Palestinians to express their choices. On the other hand, what is the election really? We are not talking about a democratic election for the State, but for a Bantustan authority, at greater restraints than the South African authority.

Moreover, the Israeli occupying power will not make the mistake it did the last time. It will not allow such freedom because of which Hamas had won the elections. I don’t think Israel is going to allow it now.”

Yet there is a silver lining in this unpromising scenario. The only difference this election could make is allowing some kind of reconciliation between Gaza and the West Bank.

Then, there is the urgent question of the anticipated war crime investigation by the International Criminal Court (ICC). Yet, when the ICC agreed to consider allegations of war crimes in Palestine, chances are not only alleged Israeli war criminals are expected to be investigated, but the probe could potentially consider the questioning of Palestinians, as well. Should not this concern Hamas in the least?

In the Israeli wars on Gaza in 2008, 2012 and 2014, Hamas, along with other armed groups had no other option but to “defend the civilian population.” The overriding concept is that the Movement believes in the principle of international law.

If Hamas can restore the rights of the Palestinian people through legal channels, then it will be much easier for the Movement, rather than having to opt for the armed struggle.

Undoubtedly, it is crucial to understand Hamas, not only as part of the Palestine-related academic discourse, but in the everyday political discourse concerning Palestine; in fact, the entire region.

INTERACTIVE: Palestinian Remix