Sometimes powerful threats are the only way to protect the interests of democratic countries against abuses of international law and human rights. In 2001, under a controversial Belgian universal jurisdiction law, survivors of the 1982 Sabra and Shatila massacres in Beirut, Lebanon, in which Christian militias killed hundreds of Palestinians, filed a criminal complaint against then-Israeli Prime Minister Ariel Sharon. They accused him of responsibility for the massacre as he had served as Defense Minister at the time. The complaint made it through several rounds of court hearings, and during that period Sharon could not visit Belgium for fear of being arrested.
In 2003, a Belgian lawmaker used the same law to file a criminal complaint against Gen. Tommy Franks, commander of the United States forces in Iraq, claiming that he was responsible for numerous civilian casualties. Following this example, various groups threatened to indict then-U.S. President George Bush, Vice President Dick Cheney and Secretary of State Colin Powell.
The American response was swift and tough. U.S. Secretary of Defense Donald Rumsfeld threatened Belgium: NATO headquarters would be moved from Brussels if it did not rescind the law and stop the criminal complaints. The Belgian government surrendered, changed the law, and dropped the proceedings against both the American officials and Ariel Sharon. In that instance, American might stopped the abuse of international law by Belgium and by enemies of the United States and Israel, and in the process saved Belgium from itself.
A similar story erupted around the International Criminal Court. The court was established in 2002 to prosecute individuals for international crimes of genocide, war crimes and crimes against humanity. The United States and Israel did not ratify the Rome Treaty that established the court out of concern about politicized and biased judgments. Those concerns turn out to have been justified.
In November 2017, ICC chief prosecutor Fatou Bensouda asked the court for authorization to open an investigation into war crimes allegedly committed against detainees by the United States military and the CIA in Afghanistan. The United States strongly protested and warned the court of possible stiff retaliatory measures.
The Palestinian Authority has repeatedly demanded that the ICC investigate Israel’s “war crimes” in the West Bank and Gaza. In July 2018, in an unusual move for the court, three ICC judges ordered the court’s registry, a neutral organ of the court, to provide administrative support “to establish, as soon as practicable, a system of public information and outreach activities for the benefit of the victims and affected communities in the situation in Palestine.” Moreover, the judges instructed the registry to open an “informative page on the Court’s website” geared exclusively to Palestinians and to report on progress every three months. This proactive procedure has never been adopted against any other state or person.
These appeals to the ICC angered National Security Advisor and former U.S. ambassador to the United Nations John Bolton. In September 2018, he called the court “unaccountable” and “outright dangerous” to the United States, Israel and other allies. “For all intents and purposes, the ICC is already dead to us,” he told the conservative Federalist Society in Washington. “If the court comes after us, Israel, or other U.S. allies, we will not sit quietly.” Bolton threatened the ICC with sanctions as follows: “We will ban its judges and prosecutors from entering the U.S. We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system.” The ICC’s officials arrogantly rebuffed Bolton’s threats.
In March 2019, U.S. Secretary of State Mike Pompeo said the United States would revoke the visas of ICC officials who attacked America’s rule of law by investigating allegations against American forces in Afghanistan or allegations against Israel. “We are determined to protect American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation,” he said. Pompeo referred to the argument that democratic countries like the United States and Israel have the capability to investigate war crimes and often attempt to punish those who break the law, while authoritarian countries like Russia, Syria, and Iran, which don’t respect the rule of law, are never investigated for war crimes. See, for example, Russia in Chechnya and the Ukraine, and Iran in Syria.
On April 5, 2019, the United States revoked ICC prosecutor Fatou Bensouda’s visa. A few days later, court judges rejected her request to open an investigation against the United States by arguing that it was likely to fail due to budgetary constraints and lack of cooperation from the parties involved. It is almost certain that if the prosecutor had asked for authorization to investigate alleged Israeli war crimes, the judges would have had no problem approving the request. It appears, then, that when the United States is involved, there is another critical consideration: The judges were more concerned with losing their American entry visas, and with financial sanctions, than with the case itself.
U.S. President Donald Trump called the decision “a major international victory” and denounced the international court for its “broad, unaccountable prosecutorial powers,” as well as for what he considers to be the threat it represents to American sovereignty.
“Any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response,” Trump said.
The specific mention of Israel is important because the Palestinians have been using “lawfare,” the abuse of international law for political purposes, as a critical instrument of their delegitimization and dehumanization campaign against Israel. The American strategy could undermine the Palestinian effort because the court will now be subjected to similar punitive actions if it decides to proceed with investigations of Israel.
The revoking of the prosecutor’s US visa has other important implications. A few days ago, the United States cancelled the visa of Omar Barghouti, co-founder of the Boycott, Divestment and Sanctions (BDS) movement and prohibited his entry to the country. Barghouti created an anti-Semitic movement that isn’t interested in Palestinian-Israeli peace or in Palestinian human rights. He has denied Israel’s right to exist as a Jewish state, called for the establishment of a Palestinian state from the river (Jordan) to the sea (Mediterranean), and demanded the return of millions of Palestinian refugees to Israel. The United States justly revoked his visa because he is also avidly anti-American and encourages provocative and violent activity against Jewish students and pro-Israeli speakers in American universities.
Recently, Israel attempted to bar entry of BDS activists who describe themselves as defenders of human rights, but in practice participate in and sometimes inspire provocative and even violent activities against Israel. The activists and their few supporters in Israel claim that this action violates freedom of speech, but this is an empty and baseless argument. A state has a legitimate right to prevent the entry of those who call for its destruction and take action, such as BDS activists do, to achieve that goal.
“Might makes right” isn’t a good rule for international relations, because it implies discrimination and double standards. However, when international courts and United Nations agencies are themselves guilty of applying double standards and discrimination, perhaps might is the only remedy.
Professor Eytan Gilboa is director of the Center for International Communication and a senior research associate at the BESA Center for Strategic Studies at Bar-Ilan University. Currently, he is Israel Institute Visiting Professor at the University of Pennsylvania.