Equivocation, Aufhebung and Pesah

Aristotle, like most philosophers, was a lover of univocals, that is, the use of a term with a clear and distinct meaning. In his rebuke and refutation of the sophists, he accused them of using equivocation, as well as a dozen other forms of fallacious argument, such as identifying a false cause or begging the question. Unlike some of the latter fallacies, equivocation is a linguistic rather than a logical fallacy. It arises when a word or a phrase is used in one proposition with one meaning while in another proposition or the conclusion it has a very different meaning.

A common example is the following:

My wife drives me mad (makes me angry).

People who are mad (crazy) should be institutionalized.

I should be institutionalized.

There are other forms of linguistic or verbal fallacies, such as amphiboly where the ambiguity belongs to a whole expression. An example could be asking the question whether there is an elephant in the room. In that case, you do not mean a huge two-or three-ton animal with a long trunk, long ears and tusks that is physically present,

However, when you (as I did) discuss the Meghan and Harry interview with Oprah Winfrey and claim that: ”racism was the elephant in the room,” you are not referring to a huge animal being present, but an enormous issue that haunts the royal family – and Britain more generally – that is, prejudice based on the colour of one’s skin. Hence, the query to Harry from a member of the royal family about how he felt about his child’s skin tone.

Thus, the fallacy is the confusion over the same term or expression when it has a regular or ordinary use and when it has a metaphorical use where the grammatical construction suggests an identical meaning or, alternatively, the grammatical construction is confusing. The fallacy emerges in the use of single words, as in equivocation, or an expression, as in amphiboly, as if they have only one meaning. However, Aristotle offers a very different example of equivocation where the different meanings are related. You can use the term “healthy” in three different ways.

  1. Are you healthy? Healthy here refers to your physical and/or mental state.
  2. You look healthy. Healthy in this case refers to your appearance and may imply that how you look gives no real indication of your state.
  3. Eating an apple a day is healthy. This means that the apple contributes to your maintaining your body in a good state; “healthy” is used in a causal sense rather than as either a sign or to characterize the substance of what your body is like.

In this type of equivocation, the confusion does not arise between one meaning of the term and another, for in one sense they all have a similar meaning. Rather, the term is being used in three different ways. For Aristotle, this type of equivocation is the most deceptive and leads to most logical errors of this type.

However, a very different brand of philosophers argues that such equivocation and ambiguity need not lead to logical confusion but to insights in the way the world and language actually works and history unfolds. Equivocation is not to be dismissed but mastered. Thus, when I once was reprimanded by a Canadian ambassador when he was running peace talks between Palestinians and Jewish Israelis, he rebuked me for being a philosopher who had been taught that equivocation led to fallacious thinking. It was precisely such a conviction that made philosophers bad diplomats. For mediation and negotiations depend very much on the art of equivocation, that is, the use of one term that meant one thing to one party but another thing to the other party. In that way, the two disputants could come to an agreement and walk away believing each had the truth about what the agreement meant.

However, the philosophers to which I now refer do not use equivocation in a sophistic or trick way. The use of the combination of meanings is deliberate. In the modern period, the master of equivocation was arguably Georg Wilhem Friedrich Hegel, a German world historical thinker of the first half of the nineteenth century. He used terms equivocally, not to draw syllogistic conclusions that were logically false, but rather dialectically to allow one to progress to a higher and higher truth through a process captured by the verb, aufheben

Aufheben is a term that adherents of cancel culture would be well to learn. For it connotes not only the act of cancellation or putting away, but to preserve as well. In doing both, the word conveys a third meaning, to advance or raise something up. Hegelian dialectic works by, at one and the same time, canceling one meaning, preserving another and, thereby, raising the term to convey a higher and more comprehensive meaning that emerges out of the process of differentiation, negation and assertion.  We both abolish one meaning, preserve or protect another and, thereby, sublate and transcend the old order.

[Readers who become confused over or are bothered by dialectical reasoning are advised to skip the next three paragraphs and pass over them to get right into the discussion of Pesah Your mental salvation may depend on such a move.]

One example will have to suffice, for this blog is not intended to be about dialectical logic but about Pesah. In the A.F. Miller translation of that great classic, Hegel’s Phenomenology of Spirit, in Part B dealing with self-consciousness (Hegel had just completed how consciousness worked, that is, how the mind worked in relationship to objects in the world), he turned his attention to the examination of self-reflection. That is, he switched his focus from a concern with the truth of something other than oneself, the nature of an object in the world, to how that very same truth vanishes when we actually experience it and do not just look on. With consciousness, we are concerned with objective truth, that is, the certainty of what we experience. With self-consciousness, we are concerned with the truth of that experience of certainty. The “I” is both the object being examined and the agent that undertakes the examination. Truth, that soon unravels, is the conviction that both must be the same. We actually discover in the process that the two are absolutely other than one another.

Thus, there is the distinction of objects and subjects. But there is also the unity of the subject with the object as parts of the same world of experience; consciousness becomes at one with itself. It is akin to the difference between sensing the world around us and tripping out on drugs so that all of experience becomes a matter of acute sensibility and there is no longer a difference between the subject that looks on and the experience itself. It is the search for this unity that permeates all of mysticism from Hindu efforts in the search for wonderment to Kabbalistic exercises. This quest to be one with the world is referred to as Desire in which antithesis is set aside; self-identity becomes the unity.

But then there is Life or survival. In that experience, one is not unified and lost in sensibility but finds oneself in existing in and for oneself, that is, through the consumption of the objective world to make it part of oneself. It is on the basis of this dialectic of Desire and Life that self-consciousness, as distinct from consciousness, moves on and develops, that is, in the tension between aspiration for dissolution of the self to become one with the world and the survival self-centred instinct to make the world simply a part of or extension of oneself.

The contention is that Pesah captures precisely this dialectic. First, there is the meaning of the term. Dr. Barry Dov Walfish, who holds a PhD in Medieval Jewish intellectual history, was the Judaica biographer at the University of Toronto Libraries. He wrote a drash for this shabat entitled, “Why ‘Passover’? on the True Meaning of Pesah – פסח” (https://www.thetorah.com/article/why-passover-on-the-true-meaning-of-pesah) In that article, he unraveled the mis-translation of  Pesah – פסח translated as a univocal meaning “to pass over.”

You shall say, It is a Passover-offering to the Lord, because He passed over the houses of the children of Israel in Egypt when He struck the Egyptians with a plague, and He saved our houses. And the people bowed and prostrated themselves” (Exod 12:27).

First, the translation in English as “Passover” is standard, but it is an outlier compared to the translations in other Western languages. Walfish traces that English (mis-)interpretation to William Tyndale, the Magdalen College Oxford scholar and leading figure in the Protestant Reformation (1494-1536). It was his version that was adopted in the King James version of the bible. The idea came from another Hebraist who translated פסח as skipping over the opening of the door when the blood of the פסח lamb was put on the door jamb.

However, that consistency in translation is shattered when, in the context of translating פסח in Isaiah 31:5, instead of “pass over” in the King James version, the New Revised Standard Version translates the term as “spare” rather than “pass over”, and the New Jewish Publication Society translates it as “protect” and “rescue.” Walfish argues that the correct meaning of pesah-פסח is “protect” or “spare”. Now the two meanings may be related, but they are not the same. For sparing someone from COVID-19 through quarantining is not the same as providing protection by means of a vaccine. And neither is the same as “passing over”. As Walfish sums it up: “The picture that emerges is one of a God who has unleashed a destructive angel—the biblical equivalent of the rabbinic Angel of Death—in Egypt and God must take an active role in protecting the Israelites from this destructive force.” “Passing over” does not make sense in that context.

Referring to the Septuagint version, the relevant passages are translated as:

  • Exod 12:13 – And the blood shall be for you as a sign on the houses, there where you are, and I will see the blood and I will protect you and there shall not be a plague among you to destroy, whenever I strike in the Land, Egypt.”
  • Exod 12:23 – And the Lord will pass by to strike the Egyptians and he will see the blood upon the lintel and both doorposts and the Lord will pass by the door and he will not let the destroyer to enter your houses to strike.
  • Exod 12:27 – Then you shall say to them: “this pascha is a sacrifice to the Lord who protected the houses of the sons of Israel in Egypt when he struck the Egyptians, but our houses he preserved.”

God here protects the firstborn of the Israelites by not allowing the destroying angel to enter their homes. Walfish traces the error to an insistence on univocal meanings, as in Rashi, whereas he discerns multiple meanings – celebrate and skip as well as protect and then, in context, suggesting that the correct meaning is “to protect.”

The Three Meanings of the Verb פ-ס-ח

At least two meanings for pasaḥ are attested in the Bible, with another in later literature:

  1. פ-ס-ח in Exod 12 and Isa 31:5, means “to protect,” “have mercy on,” or “save.” The noun Pesah refers to the sacrifice or the holiday of “protection,” when God protected the people from the Destroying Angel.
  2. פ-ס-ח in 1 Kings 18:21, and 18:26 (in the pi‘el) which means “to hop,” “skip,” or possibly “limp” (in a cultic setting).
  3. The later meaning which is “to celebrate Pesaḥ”, as in the הָא לַחְמָא עַנְיָא of the Haggadah: כָּל דִּצְרִיךְ יֵיתֵי וְיִפְסַח, “let anyone who is in need come and celebrate the Pesaḥ”

I suggest another possible answer. Pesah-פסח means all three. It is the equivalent to aufheben that in this context means:

  1. To skip or set aside or pass over and put away – put into quarantine;
  2. To protect and preserve – ensure survival and life = actively offer a vaccine;
  3. To celebrate or raise up so that through the Passover feast we are not simply kept safe nor just given positive protection, but are lifted up to understand more fully the true blessing of freedom.

The 2014 Gaza War: Weapons and Targets

There are many reasons commentators have argued against any outside inquiries into Israel’s behaviour in the occupied territories, Gaza and East Jerusalem. One is the charge that such investigations are motivated by antisemitism. They may be. But they also may not be. An a priori condemnation of such inquiries on the basis of such a charge is not only a singularly false premise for launching or not launching an investigation, but the effects are also terrible with respect to launching any investigation into an act that is allegedly antisemitic. Further, the weaponization of antisemitism in this way contributes to bringing the new international definition into disrepute. Any attempts to silence criticism of Israel by tarring such criticism with the label of antisemitism is, most times, a false flag. Instead, criticisms or defence of such investigations must be made on the merits and demerits of the case.

However, there is a larger context that does have to be taken into account beyond the merits of the alleged criminality of a type of action. The situation must be viewed not only in terms of concerns with justice but also whether it is intended to undermine efforts at advancing the prospects for peace. The new initiatives in this regard coincidentally correspond with the effective end of the Oslo era of Palestinian-Israeli peacemaking and substituting lawfare in place of diplomacy just as diplomacy had once largely replaced violence.

The problem with the resort to lawfare, to engaging in the Israeli-Palestinian conflict neither on the battlefield nor in the corridors of power, but in legal courts is that, in a point I made in my last blog, nowhere has the court of law advanced the peace process even when it advances the cause of justice. Justice must be done and must be seen to be done. But the use of criminal law to fight political battles is a misuse of such law and, in the long run, an ineffective one.

International law is critical to ending conflict, but the law envisioned concerns mutually binding commitments of peace treaties and not criminal law. Commitments made by both sides under existing agreements are critical. One such commitment is an agreement to settle the conflict through negotiations. However, that does not mean that serving justice is ignored. It just means that the use and abuse of the ICC should not be made as a substitute for negotiations, that is, to make an end run around such negotiations.

Though the shift from diplomacy to lawfare is understandable in a conflict situation that is now very asymmetrical. unilateral initiatives in The Hague are used to offset unilateral actions and achievements of the other side – the decline in American financial support for the Palestinians, the recognition of Jerusalem as the capital of Israel, the move of the American embassy to Jerusalem, the abandonment of conditioning other peace agreements between Israel and Arab states on advances in Israeli-Palestinian negotiations and, most important of all, the creeping annexation by Israel. Disregard for the sovereignty and independence of the Palestinians should not substitute for the need for diplomacy. For not only is peace not served, but a distortion of justice usually emerges in the wake of the shift.

I have written a series of blogs before on the 2014 50-day Gaza War in relationship to just war theory and military strategy. They can be found on Google and on WordPress under Howard Adelman. As I wrote then, “War is a matter of both prudential and strategic considerations and ethics. The latter allow international society to be governed by a system of norms, while the former recognizes that war is part of international society and one way by which states, or state-entities, try to settle their differences.” For a discussion of the norms themselves, please review those blogs.

I did not then and I will not here consider whether the rain of rockets aimed at civilian targets by Hamas forces prior to the war constituted a war crime. Though I believe an easy assessment would lead to such a conclusion given the civilian nature of almost all the targets, my purpose here is to focus on alleged Israeli war crimes. A major part of the defence relies on the policy and practice of Hamas in using civilian shields to safeguard rocket installations, planning and logistics centres. This does not mean that the strategy worked. It just meant that when the civilians were ignored and became collateral damage to any attack, Israel lost out in terms of the war for public opinion and possibly of a trial in the International Criminal Court.

On 6 November 2014, U.S. General Martin Dempsey, Chairman of the Joint Chiefs of Staff, stated that Israel went to “extraordinary lengths” to limit civilian casualties and collateral damage during its Operation Protective Edge in July-August 2014.  However, argument by authority is of little help when it comes to such disputes, if only because the U.S. is such an important ally of Israel. This was even true during this period when Barack Obama was president, and he was clearly not a cheerleader for Israeli policy under Prime Minister Netanyahu.

One issue was how force was deployed. Was it used discriminately or indiscriminately as was the case with Hamas rockets? On this issue there seems to be little controversy. The Israeli force from the air and on the ground targeted two main military resources belonging to Hamas: 1) the network of tunnels within Gaza as well as those that crossed into Israel, and 2) the places where missile batteries were camouflaged. The initial air war targeted the latter. The subsequent ground war focused on the former.

The issue was then not the strategy, but the care taken in such operations in dense urban settings to minimize collateral damage against civilians. Carpet bombing as practiced by the allies in WWII was avoided. The focus on military targets in the air attacks is supported not only by the IDF correlation maps of military targets in relationship to air strikes, but also by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in its publication, Gaza Crisis Atlas which documents the concentration of the 12,000 strikes (with some exceptions) that impacted, damaged, severely damaged or destroyed identified military targets and avoided civilian populations more generally.

In fact, almost 80% of those targets were within three kilometers from the Israeli border, primarily the northern and north-eastern border, located there to maximize the effectiveness of Hamas rockets that lacked guidance systems. The remainder were mostly along the eastern border. The map is prima facie evidence that Israel did not indiscriminately target civilians, though, given the density of Gaza, significant damage to the civilian population could not have been avoided.

However, it is insufficient to simply aim your bombs at military targets. Was the intelligence operational in identifying the target, the location and the civilians likely to be impacted? Was the assessment of the weapons to be used compared to the weapons and munitions available to the enemy adequate? That is, did the weapons have the appropriate level of precision to minimize the effects on civilians? What was the assessment of the impact on civilians? Was there an independent determination of the legality of the operation?

Preparations have to be in place to minimize errors and, afterwards, to investigate whether, when errors in targeting occurred, negligence or even malevolent intent was involved. Was the preparation to mitigate civilian damage adequate? Were the investigations following the attack both thorough and scrupulous given the general principle that anticipated and actual “collateral damage” (civilian casualties) could not be excessive “in relation to the anticipated military benefit of the attack.”? (Lt. Colonel (res.) David Benjamin, IDF, “Israel, Gaza and Humanitarian Law: Efforts to Limit Civilian Casualties,” in The Gaza War 2014, eds Hirsh Goodman and Dore Gold)

Israel claims it has a “highly developed state apparatus for legal supervision and enforcement” to ensure compliance with this principle. Did the ICC investigate that claim when it initiated the preliminary investigation in 2015 into the Israeli conduct of the war? I have found no evidence that it did when the ICC investigated the death of 2251 civilians. Quite the reverse. The 2016 published preliminary investigation focused on “the extent of the devastation and human suffering.” Quite aside from the criteria to determine “extent,” extent is incidental to a war crimes investigation. The issue was whether the military means to eliminate the missile capabilities were proportionate to that effort and whether systems were in place to minimize civilian casualties.

Chief Prosecutor Bensouda of the ICC, based on the preliminary investigation, concluded that the information available showed that the IDF “intentionally launched disproportionate attacks.” Yet the IDF professes to follow the principle of “Purity of Arms,” namely that “includes the duty to use force only when and to the extent necessary to maintain one’s humanity during combat, to refrain from harming persons uninvolved in combat and prisoners, and to do everything in one’s power to prevent harm to their persons, dignity, and property.”

Though the 207-page initial investigative report is marked, “Top Secret,” (in other words I have been unable to read it), in fact we do know that the ICC preliminary investigation did not even wait for the completion of Israel’s own investigation to review its adequacy before it initiated what was supposed to be “a last resort” effort if the IDF investigation proved inadequate. Further, the report documented not only a policy of using human shields, but that three UN facilities were used by the Palestinians in Gaza both for storing and shooting missiles, both mortars and rockets. In one of those attacks by Israel, 44 Palestinian civilians were killed and 227 were wounded as they sought shelter in the UN facility.

Ban Ki-moon, the UN Secretary-General, stated that, “The fact that they [UN facilities] were used by those involved in the fighting to store their weaponry and, in two cases, probably to fire from, is unacceptable. It serves to undermine the confidence that all concerned should have that United Nations premises are civilian objects and therefore may not be made the object of attack.” The IDF insisted that, Israel makes every effort to avoid harm to sensitive sites.

There is no indication that the ICC investigated the Israeli claim that its Military Advocate General’s Corps (MAG) was independent of the normal chain of command and did, as claimed, provide appropriate legal advice and training to military officers and whether the instructions in international law prepared by the IDF’s School of Military Law were adequate and comprehensive. When investigations proved that charges were warranted, did the IDF conduct independent military trials? These questions were not answered because they did not seem to be asked.

Yet an earlier inquiry, the Turkel Commission (2012), which included a former Judge Advocate General of Canada who is directly responsible for supervising the Canadian military adherence to international law and the administration of military justice, concluded that, although some improvements could be made, overall, the Israeli investigative system was consistent with the requirements of international humanitarian law. “The examination and investigation mechanisms in Israel for complaints and claims of violations of the laws of armed conflict generally comply with Israel’s obligations under international law.” The recommendation that Israel initiate a fact-finding mechanism was, in fact, adopted in time for the 2014 Gaza War – the Fact Finding Assessment Mechanism (FFAM).

In spite of the failure of the ICC to evaluate Israel’s own investigation and legal system and its workings, Israel, unlike Hamas, [that time] cooperated fully with the 2015 preliminary investigation. Further, of thirteen criminal investigations launched from the 100 or so alleged cases referred to it (nine of which were immediately dismissed as frivolous), the IDF specifically probed alleged breaches in humanitarian law when it investigated, for example, the mortar attack on an UNRWA school in Bet Hanoun on 24 July resulting in the deaths of 15 civilians.

There were other IDF investigations:

  • 16 July alleged attack leading to the deaths of four children on the beach in Gaza
  • The 19 July alleged shooting in Dahaniya of a woman
  • The 25 July deaths of two ambulance drivers – one in Khan Younis, the other in Beit Hanoun
  • The 27 July IDF strikes leading to the deaths of 27 civilians in an attack on the Abu Jama family house
  • The 29 July alleged shooting death of an individual carrying a white flag in Khirbeit Haza’a
  • The Alleged mistreatment of a 17-year-old youth in Khirbeit Haza’a;

In support of IDF efforts, probably the best known are IDF efforts to warn civilians even in claimed cases of assault. Dropping leaflets from the air, engaging in “roof-knocking” (nearby harmless explosions), broadcasts, text messaging and phoning are all used so that, when there is a failure, it is more spectacular. There is no better indicator of a country’s commitment to protecting civil than when its armed forces, even in a planned assault, issues warnings and loses the element of surprise.

The ICC and Israel: An Introduction to Substantive Issues

On the eve of the Israeli elections, the lawfare war with the Palestinians has heated up. On Monday, I wrote, “the Palestinians had invited the probe, including an inquiry into the conduct of Palestinians, and pledged full cooperation with the court. Minister of Foreign Affairs and Expatriates of Palestine, Riyad al-Maliki, met with the Chief Prosecutor to establish how the two bodies would collaborate ‘to protect the interests of the victims and prevent impunity’.”

The Israeli response was quickly forthcoming. Al-Maliki’s entourage was questioned by Israel’s Shin Bet upon their return as they crossed the Allenby bridge from Jordan. Al-Maliki himself was stripped of his special travel permit, his VIP travel pass made available to senior Palestinian officials. The travel permit was not just for travel abroad; with the pass, Palestinian Authority officials and staff can pass through Israeli checkpoints with ease. In this case, the entourage was delayed half an hour. The PA spokesperson claimed that, “Israel is unable to solve cases through the law, but instead resorts to a policy of intimidation, sanctions and threats.”

The Palestine’s Permanent Representative to the ICC, Rawan Sulaiman, insisted that legal efforts to seek justice for Palestinians will continue despite Israeli intimidation. “We will not be subject to intimidation as we seek justice for victims of atrocity crimes committed in Palestine…Israel, the occupying power, has consistently been obstructing access to justice and doing all within its power to avoid any form of accountability for the crimes that continue to be committed in the Occupied Palestinian Territory,”

However, an article in the recent Foreign Affairs (Hussein Agha and Ahmad Samih Khalidi, “A Palestinian Reckoning: Time for a new beginning,” March/April 2021) argued that, “The PLO’s default position is to appeal to international law, hoping that the international community can or will act on its behalf. That appeal has been one of the more enduring delusions of the Palestinian leadership, ever since the struggle for international recognition replaced the presumption of revolutionary legitimacy and diplomacy took the place of armed struggle.”

The article continued. “In reality, international law has not been a dependable friend to the Palestinians (from the Balfour Declaration in 1917 to the UN Partition Plan in 1947 to UN Security Council Resolution 242 in 1967, the cornerstone of the peace process). While it has lent the Palestinians a hand by recognizing their claim to territories occupied by Israel after the 1967 war and their right to statehood, and by serving as an increasingly fragile dam against Israeli settlement and annexation policies, international law has made a difference only when the outside forces that purport to uphold it—especially the permanent members of the UN Security Council—are prepared to in fact do so. There is not much evidence that this is the case today.”

The article argued that events are not moving in favour of the Palestinians, notwithstanding all the noise and rhetoric about international law. “The value of international law is ultimately beholden to the prevailing political environment and the stances of its major sponsors.” When it comes to international criminal law, this is totally lacking. “The Palestinians’ conflict with Israel is not a legal dispute. International law has not helped solve conflicts in Crimea, Cyprus, Kashmir, Kosovo, or Nagorno-Karabakh. It was not international law that compelled Israel to withdraw from the Sinai Peninsula, southern Lebanon, or Gaza; it was a combination of power politics and diplomacy. Yet many Palestinians cling to an uninformed misapprehension of international law’s potency.

Nevertheless, Israel engages with the Palestinians on the issues of international criminal law, though not necessarily in court. The IDF’s Chief of Southern Command responsible for security against the Gaza Strip, Israel Defense Forces Chief of Staff Aviv Kohavi, condemned the ICC’s investigation into Israel over alleged war crimes. He defended the IDF. “The Hague is living in the old world. In the Middle East, there is a new area of terrorism.” Assuming even that in the twenty-first century we are living in a new era of terrorism, does not the rule of law with respect to international conflict persist? After all, Israel still professes to be a rule-of-law state. And the rule of law prohibits war crimes, crimes against humanity, genocide and aggression. Israel conducts its own probes and has yet to decide whether it will cooperate with the ICC investigation on jurisdictional grounds.

Israel’s Prime Minister Netanyahu has vowed to fight “ICC’s perversion of Justice” and called its decision to investigate Israeli war crimes as “outrageous.” In terms of diplomatic support for ICC’s lack of jurisdiction, Israel seems to have a wide spectrum of diplomatic support.  For example, US Secretary of State Antony Blinken opposed the ICC decision to open a full war crimes probe against Israel on the following grounds:

  • The ICC has no jurisdiction over this matter
  • Israel is not a party to the ICC
  • Israel has not consented to the Court’s jurisdiction
  • The Palestinians do not qualify as a sovereign state and, therefore, cannot participate in the ICC.

That position was echoed by Vice-President Kamala Harris in the first call she made to Netanyahu. However, in the expansionist view of international law and the jurisdiction of the ICC, Marcella David wrote, “We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality.” The fight over expanded ICC jurisdiction has both critics and defenders. In the end, the court of public opinion will make its own determination based on the substantive issues much more than the formal debates over jurisdiction.

What about the substance of the charges leveled against Israel?

The main one is a probe into Israeli conduct in the war begun on 13 June 2014 in Gaza. Given that lack of just cause is a war crime, it is certainly peculiar that the ICC probe starts on 13 June 2014 and not on 12 June when three Israeli youths – Eyal Yifrach, Gilad Shaer and Naftali Frenkel – were kidnapped in Israel and murdered in the West Bank. Did Israel have a justifiable casus belli? It is hard to see how the cause can be investigated if the probe starts the day after the alleged immediate instigation for the war, let alone the provocative violent acts that preceded that event. As the families of the victims wrote, “Had Prosecutor Fatou Bensouda truly wanted to investigate war crimes and crimes against humanity, she would have instructedd [the court] to open a probe on the great crime that took place just the day before, on June 12, when our three children were kidnapped — three Jewish boys who only wanted to come home safely,” The UN Charter does not impair the inherent right of an individual or collective self-defence if an armed attack occurs against a Member of the United Nations. (UN Charter Article 51) The kidnappings were simply the last straw in a series of provocative violent actions launched from Gaza.

It is no surprise, therefore, that overwhelmingly the accusations against Israel of war crimes in the 2014 Operation Protective Edge are concerned with the conduct of the war and, more particularly, the protection of civilians by the IDF in the conduct of the war, and not the cause of the war itself.  After all, as is generally accepted, the tension between military necessity and humanitarian concerns is “the great dilemma” in international humanitarian law. The laws applicable to international war crimes require that there not only be acceptable justifications for the resort to armed force (jus ad bello), concerns with respect to the conditions that make the use of war permissible (this is primarily a political responsibility), but that jus in bello concerns, the rules governing how a war should be conducted, has to be a major focus. This is largely a military responsibility. Benny Gantz, now a prominent Israeli politician who served as IDF chief between 2011 and 2015 would be a target of such a probe.

In that respect, both the ‘Hague’ law, primarily concerned with the means, methods and weaponry of warfare, in this case took second place to the overtly ‘humanitarian’ concerns of ‘Geneva’ law focused on the protection of civilians, though unlike the 2018 border protests, objections to the weapons used were also an issue. Certain weapons, because of their devastating physical effect, uncontrolled scope or environmental impact are forbidden – such as the use by the Syrians of chemical weapons against their own civilian population in violation of both the Hague and the Geneva rules.

Let me offer three different types of cases possibly applicable to the 2014 Gaza War:

  • the 1907 Hague Convention prohibiting “[t]he attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended” Convention (IV)
  • the convention requiring combatants to take “all necessary steps..,to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments [and] hospitalsnot then being used for military purposes. (Article 27)
  • a commanding officer is required to “do all in his power” to alert the relevant authorities before commencing a bombardment that is not an assault. (Article 26)

Note that all three are qualified. Bombardment is restricted if buildings are undefended. Certain buildings are off limits as long as they are not being used for military purposes. Where an attack is not an assault, prior notice is required. When examining many of the accusations of war crimes, these qualifications are very often omitted. In dense urban warfare, as in the Gaza Strip, it is difficult to identify a building that was not defended. Hospitals were used to house military planners and personnel. And there is no question that Israel dropped warning leaflets urging civilians to get out of the way even when there were planned assaults.

So why the probe?

One reason is that countries conducting their own probes into the conduct of their troops, and even the non-military justice system itself, has often proven to be driven by political rather than legal considerations. For example, in the case of Demjanjuk, a former and very aged Ukrainian accused of war crimes in WWII and returned to Israel for trial (Demjanjuk v. Petrovsky), Israeli courts eventually determined that government lawyers pressing for extradition of Demjanjuk had perpetrated a fraud upon the court by withholding evidence highlighting the flaws of the identification witnesses relied upon. Counsel concluded that the Israeli justice system was purposefully subverted in an effort to make a political and moral statement.

On the other hand, specialized criminal courts were set up prior to the creation of the ICC. The U.N. Security Council established the International Criminal Tribunal for the Former Yugoslavia (“Yugoslavia Tribunal”) with jurisdiction to investigate possible war crimes committed by Bosnian Serb, Muslim, and Croatian forces in the former Yugoslavia, and the International Criminal Tribunal for Rwanda (“Rwanda Tribunal”) to investigate the crime of genocide. These courts were deemed insufficient because of their reliance on ad hoc arrangements. The creation of the ICC was intended to cure that problem, only to encounter others – the claim of overstretch and the charge of politicization and making decisions based on political rather than legal considerations.

On the other hand, testimonials from a number of soldiers who fought in Gaza at the time suggest that the actions of some soldiers and perhaps even their orders did not live up to Bibi’s description of the IDF as “the most human army in the world”. Some 2200 Palestinians, including many women and children, were killed in that war versus 66 Israeli soldiers and 7 civilians. However, comparing numbers killed and injured to determine proportionality is not the criminal law, but only whether the military means were proportionate to the military objective.  Thus, there are biases in applying the law and possible biases in defending soldiers against such charges.

However, the substantive issue should not be trust or distrust in either direction, but clarification of the applicable law and whether the evidence available warrants a criminal prosecution. As I have written before, and which made need repetition and clarification again, the authority for an investigation can come from the UN Security Council, at the request of a member when the event in question took place on territory claimed by the member, and from the Office of the Chief Prosecutor for the Court when endorsed by a requisite tribunal. This is the issue of jurisdiction that I discussed in a previous blog. There is also the other dimension of the jurisdictional debate that I also already raised over whether the state itself has both the will and the competence to conduct such an investigation and whether the ICC must conduct a pre-investigation to make such a determination.

Those jurisdictional disputes inevitably re-emerge when exploring the substantive charges.

The International Criminal Court (ICC) and Israel: The Prescriptive Context

It is one thing to depict generally what the ICC does and the conflicts over its behaviour. It is another to look at those deeds from the perspective of what it should do or what it is expected to do. The core issue of jurisdiction is over “national jurisdiction,” that is, when a country being investigated claims it has both the competence and record of examining any charges of war crimes, crimes against humanity and genocide, though accusations of aggression belong in a separate category for consideration.

Whatever the shortcomings of the ICC, its failure to adjudicate or indict serious human rights offenders on a scale incomparably worse than Israel allegedly does is a false flag. Not because the ICC always investigates such offenders. Rather, the jurisdictional issue – as in the case of China – leads the ICC to different conclusions than in the case of Israel, Russia or the US. The reasoning may be faulty. It may be challenged. But the ICC does have a rationale for exempting China, even though China has a horrendous human rights record in its treatment of Uighurs.

Further, just because neither Israel, nor Russia nor the US ratified the Rome Statute, does not mean that the ICC does not have jurisdiction. If the offence took place on territory over which a state member has a legitimate claim, the ICC could have jurisdiction if the offence took place after 1 July 2002. The Rome Statute was agreed to on 17 July 1998 and ratified sufficiently by 1 July 2002 to come into force; over 120 states have ratified the treaty.

In addition to the issue of jurisdiction, the statute deals with its structure and function. With respect to the latter, there is no disagreement in insisting that the ICC is restricted to investigating and trying only four specific crimes – war crimes, genocide, crimes against humanity and aggression – and only those crimes which took place after 1 July 2002.

Nor is there any dispute to restricting such investigations only to the behaviour of individuals who are members of states that lack either the capacity or the will to launch such investigations themselves. But who decides on whether a state has the capacity, the competence or the motivation? When the court determines a lack of competence, will that be the result of an ICC investigation into competence or will, or can one be launched that is complementary to a national one? But if the abuse of human rights occurred only on the territory of the state and the state in not a signatory to the Rome Statute and the Security Council does not override that opting out clause for jurisdiction, then the ICC lacks jurisdiction.

Thus, the claim for jurisdiction is that the alleged abuse took place on the territory or claimed territory of a signatory state. Alleged abuses in Gaza and even in the West Bank and East Jerusalem as well as those in Afghanistan by the US or in Crimea and Donbass by Russia can be claimed as falling within ICC jurisdiction. In other words, non-ratification of the Rome Statute is insufficient to exempt a state an exemption from an investigation. The ICC has jurisdiction if the alleged crimes took place on the territory or claimed territory of a State Party. The ICC also has jurisdiction if the crimes were referred to the Prosecutor by the UN Security Council, but that seems moot in the cases of Israel, Russia and the US.

Although the ICC may begin an investigation before issuing a warrant if the UN Security Council refers the alleged charges to it (or if a State Party requests an investigation), generally, to conduct an investigation on its own initiative, the Prosecutor must obtain authorization to conduct a probe from a Pre-Trial Chamber of three judges.  The ICC did obtain the proper authorization in the case of Israel, though by a vote of 2:1. In that 2:1 decision to authorize the investigation, Peter Kovacs offered a 154-page dissent and insisted that the decision had “no legal basis in the Rome Statute and even less so in public international law.”

Kovacs has a record of dissenting, such as on a dispute over Greek and Cambodian vessels and in the indictment of Ahmad Al Faqi Al Mahdi of war crimes in the Republic of Mali. As in the Israeli case, he shared “a misapprehension of the role of the Pre-Trial Chamber.”  He has a conservative and non-expansive view of the functioning of the ICC.

This, however, does not deal with the restriction to the court being only a court of “last resort” or the basis on which it can determine the lack of competence or will of the state to which the members accused of a crime belong. Further, unless the ICC conducts an investigation into competence and will first, any assumption of incompetence or lack of will can be claimed to be bogus. “The core mandate of the ICC is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so.” But if the court fails to conduct an investigation into competence and will and therefore fails to make a separatee finding on this issue, any action dependent on such investigations and findings can be claimed to be invalid. Commentators like Lawrence A. Franklin (4 March 2021) will use such an argument to claim that the court’s investigations are illegitimate and irrelevant.

However, it is simply not the case, as many commentators declare, that just because a state is not a signatory to the Rome Statute, this does not exempt the individual members of such a state from being investigated. Nor is the accusation that a non-state actor brought the charges before the court since Palestine is recognized as a state by the court. Hamas is the de facto political authority in Gaza and the Palestinian Authority is in the West Bank, at the very least in Areas A and B. Neither party need have equal status to the government of Israel in bringing a charge.

The parties must have some recognized governing jurisdiction over the territory on which the crimes allegedly took place. The real question is whether the ICC was “constitutionally competent” to decide whether or not Palestine is a state as defined by the Rome Statute. For even the UN General Assembly 2012 decision to grant Palestine observer status as a “non-member state” does not count, since even the UN General Assembly is only an advisory body without legal jurisdiction to make such a decision.

Is the charge of the court’s hypocrisy justified? The fact that no charges have been laid against the Syrian government for its use of chemical weapons against its own citizens or China’s mistreatment of the Uighurs simply means that the Security Council did not authorize such a charge. The ICC in these types of cases, where there is no signatory state to bring the charge because it can claim territorial jurisdiction, or when the UN Security Council does not authorize it to investigate, cannot even initiate an investigation.

As the ICC begins to flex its legal muscles, more and more states will be upset. More and more states will withdraw. But as long as they were members when the alleged crimes took place, such actions will not exempt them from an investigation. More seriously, however, if enough member states get “pissed off” and withdraw their legal and/or financial support for the ICC, the ICC will be in practical trouble. The most serious source of such disaffection is emerging in Africa in terms of numbers and in Europe in terms of financial and moral support.

However, in terms of influence and power, the US is the most important dissenter. In 2016, after Chief Prosecutor Bensouda launched the investigation into alleged war crimes by US forces in Afghanistan, Donald Trump, then president, imposed sanctions on Bensouda and her top aide, freezing any American bank accounts and revoking US visas.

In the case of the investigation of Israel, the US, Canada, the Czech Republic, Austria, Germany, Hungary, Australia, Brazil and Uganda have each made claims that the investigation of Israel is not justified. These countries have filed petitions claiming that the ICC lacks jurisdiction This case has been made succinctly by the “Friends of Israel Initiative” who on 19 February wrote an open letter to the new ISS Chief Prosecutor, Kanim Khan, who will take up his role on 15 June 2021.

Dear Mr. Khan,

Congratulations on your election as Chief Prosecutor of the ICC. We are the Board members of the Friends of Israel Initiative, an independent body of former heads of government, cabinet ministers and others. We came together out of concern for the unprecedented campaign of delegitimization against Israel waged by the enemies of the Jewish State and supported by numerous international institutions.

We are writing to urge you to re-evaluate the decision taken by your predecessor, Ms. Fatou Bensouda, to investigate Israel over “alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.” As you are aware, the ICC’s Pre-Trial Chamber recently adjudged that the Court has jurisdiction over these allegations.

The Friends of Israel Initiative has opposed this investigation since a preliminary examination was initiated at the request of the Palestinian Authority in 2015. In addition to the substance of the allegations against Israel, which we firmly believe to be spurious, we have several other serious concerns.

Israel is not a party to the Rome Statute and has not consented to the Court’s jurisdiction. The request for an investigation was made by an entity which is not a sovereign state within the terms of the Rome Statute, under which only sovereign states may delegate jurisdiction to the Court over their territory. This view is strongly supported by the government of the United States of America, as well as the governments of Rome Statute state-parties Germany, Austria, the Czech Republic, Hungary, Australia, Canada, Uganda and Brazil, as well as by leading international law scholars.

In assigning itself jurisdiction, the ICC disregards and undermines the Oslo Accords, an internationally binding set of agreements that remain in force and continue to be recognized by both Israel and the Palestinian Authority. Under the Oslo Accords, the Palestinian Authority has no criminal jurisdiction [my italics] over Israelis anywhere in the West Bank, the Gaza Strip or East Jerusalem. That jurisdiction, by agreement of both Israel and the Palestinian Authority, remains with Israel alone. Therefore, even if it were a state-party, the Palestinian Authority could not delegate any such authority to the ICC.

As you know, the ICC is mandated to investigate and try the gravest crimes of concern to the international community, as a court of last resort, when national jurisdictions are unable or unwilling to do so. This does not apply to Israel, which has a long-established and internationally respected legal system with a track record of investigating such crimes and prosecuting individuals when appropriate.

In addition to these concerns over jurisdiction, we believe that, by commencing this investigation, the ICC would actively undermine the prospects for peace between Israel and the Palestinians. Recent months have seen unprecedented progress in the Middle East peace process, with peace agreements signed between Israel and the UAE, Bahrain, Morocco, and Sudan. Building on these developments, the new U.S. administration may now have an opportunity to further negotiations between Israel and the Palestinians. For an international body with the prestige of the ICC to support the abrogation of the Oslo Accords and unilaterally endorse one side’s claims in a bilateral dispute would cripple the likelihood of future negotiations.

Finally, we have profound concerns over the effects of such an investigation on the ICC’s judicial integrity and, therefore, on its mandate of achieving international criminal justice, which is of the utmost importance in an increasingly turbulent world. It is essential that the Court continue to observe the tenets of international law scrupulously, to operate within the mandate proscribed for it by the Rome Statute, and to avoid acting through political motivation or through the appearance of such. We believe that pursuit of this fundamentally flawed investigation jeopardizes all of these objectives. We agree with the words of the ICC Pre-Trial Chamber’s presiding judge, Peter Kovacs, who wrote: “I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law.”

We wish you every success in your new role as ICC Chief Prosecutor. We are also willing to provide advice or assistance should you wish.

Hon. Stephen Harper, Chairman, Former Prime Minister of Canada

Hon. José Maria Aznar, Honorary Chairman, Former President of Spain

Hon. John Howard, Former Prime Minister of Australia

Hon. Luis Alberto Lacalle, Former President of Uruguay

Mr. John Baird, Former Minister of Foreign Affairs of Canada

Mr. Karl-Theodor zu Guttenberg, former Defense Minister of Germany

Ambassador Giulio Terzi, Former Minister of Foreign Affairs of Italy

Ambassador Zoran Jolevski, Former Minister of Defense and Ambassador of Macedonia

Mr. Uri Rosenthal, Former Minister of Foreign Affairs of the Netherlands

Mr. Carlos Bustelo former Minister of Industry and Energy of Spain

Mr. Elliot Abrams, Former United States Special Representative for Iran and Venezuela

Col. Richard Kemp, Former British Army Commander

Professor Andrew Roberts, British historian, visiting professor at King’s College London

Mrs. Fiamma Nirenstein, Italian journalist, author and politician

Mr. George Weigel, Distinguished Senior Fellow of the Ethics and Public Policy Center

Mr. Rafael Bardají, Executive Director Friends of Israel Initiative

The most novel part of this objection to ICC jurisdiction is the claim that an ICC investigation would abrogate the terms of a recognized international treaty between the Israelis and the Palestinians, the Oslo Accords, and also undermine the prospects of future progress towards a peace agreement.

However, although the jurisdictional issue is crucial to any scholar, most people are concerned with the substance of the claims. Did Israel possibly commit war crimes and crimes against humanity and even aggression in the instances cited? I will take that issue up in the next blog.

The International Criminal Court (ICC) and Israel: The Global Context

The International Criminal Court (ICC) and Israel: The Global Context


Howard Adelman

By a vote of 2:1, the International Criminal Court (ICC) Pre-trial Chamber on 5 February 2021 endorsed the recommendation of International Criminal Court ICC Prosecutor Fatou Bensouda to open a full war crimes probe into IDF conduct and settlements. (In the next blog, I will analyze the dissent.) The (ICC) sent a one-and-a-half page notice informing Israel that the ICC intended to launch a probe into possible war crimes committed by Israel. There will also be a probe into war crimes committed by Palestinian terrorists.

The letter to Israel detailed the scope of the inquiry. The three main areas the probe will cover include:

  • the 2014 war between Israel and Hamas (Operation Protective Edge)
  • Israeli settlement policy
  • the 2018 Great March of Return protests along Gaza’s border with Israel.

The probe formally began on 3 March 2021. However, the initiative began several years ago. An Outreach Decision (ICC-01/18-2) for the victims began on 13 July 2018. Palestine PTCI Decision ICC-01/18-1, assigning the situation in the State of Palestine to Pre-Trial Chamber I, began a month earlier on 24 May 2018.

Israel, primarily through its Foreign Ministry, launched a broad campaign against the ICC and its probe. While discussing the possibility of a renewed Iran deal and the Iranian presence in Syria, Israeli Foreign Minister Gabi Ashkenazi met with Russian Foreign Minister Sergey Lavrov to present the Israeli case against the ICC probe. Referencing Israeli and other experts on just war theory and applicable legal norms, Israel’s Strategic Affairs Ministry (the Ministry of Strategic Affairs and Public Diplomacy (originally set up in 2006 to combat the BDS campaign) launched a new website presenting Israel’s position against the ICC in reference to jurisdiction over both IDF conduct and settlements.

The core of the argument on jurisdiction cites:

  1. the original intent of the ICC when it was founded in 2002;
  2. the objective of ending impunity;
  3. ICC being restricted to functioning as a court of last resort if a state lacks the competence to pursue such inquiries or is unwilling to do so;
  4. the failure of the ICC to determine a lack of national competence by the Israeli state, a prerequisite for launching a criminal investigation into the conduct of its citizens;
  5. the even stronger claim that the ICC only has jurisdiction when a sovereign state delegates such jurisdiction – which then would arguably exempt the Palestine probe as well since Palestine, though recognized as a state by over one hundred and twenty countries, is not a sovereign state [The ICC Assembly of State Parties has recognized Palestine as a state.];
  6. Israel, in contrast, is a sovereign state with a legal claim over the territory upon which the Palestinians invited a probe over settlements;
  7. The probe is a product of a politicized process;
  8. The probe is in contravention to well-established legal principles of international law;
  9. The probe is based on a misreading of the Statute of Rome.

The Rome Statute was adopted in 1998 as a way to pursue some of the world’s worst atrocities: genocide, war crimes and crimes against humanity. At its peak, 124 countries belonged.  Israel was not one of them. Nor was the United States. Nor India or China for that matter. Other countries have alleged they were improperly targeted and withdrew.

Israel has not formally responded to the original ICC letter which gave Israel 30 days to reply. The question remains open whether Israel will engage with or shun the ICC formally whatever it does informally. In addition to the website launched by Israel as a response, President Reuven Rivlin of Israel issued a broadside insisting that, “Any attempt to pressure Israel through international bodies and the cynical political exploitation of international law is doomed to fail and will contribute nothing to improving relations between us and the Palestinians. We will never apologize for the right and the duty to protect our citizens from all threats to their security. We have seen the damage that politicization has done to UN human rights bodies, and see the damage being done to the International Criminal Court right now through political pressure.”

These words were modest compared to those of President Emmanuel Macron of France who called the decision of the ICC to launch the probe “morally and legally bankrupt.” Sixty-nine senators signed a preemptive letter in May 2020. Fifty-seven US senators signed an open letter drafted by Sens. Rob Portman (R-OH) and Ben Cardin (D-MD) criticizing the ICC’s decision to launch a formal investigation of Israel. The final version of the letter sent recently on 11 March praised Secretary of State Tony Blinken “for denouncing the decision and expressed concern over the ICC’s actions.”

In contrast, the Palestinians had invited the probe, including an inquiry into the conduct of Palestinians, and pledged full cooperation with the court. Minister of Foreign Affairs and Expatriates of Palestine, Riyad al-Maliki, met with the Chief Prosecutor to establish how the two bodies would collaborate “to protect the interests of the victims and prevent impunity.”

A major claim has been made that the ICC targets Israel which already has a robust legal system based on just war doctrine while the court ignores the crimes committed by the citizens of other states. However, there is plenty of evidence to indicate that the Court has been exercising its legal muscles in the last year or so. The ICC has simply become more robust recently in its pursuit of criminal prosecutions for war crimes as Chief Prosecutor is in her last hurrah and will be replaced in June by British lawmaker Karim Khan in June. Look at the following investigations:

  • American conduct in Afghanistan and in Guantanamo
  • Russian behaviour in Crimea and Eastern Ukraine
  • Nigeria in its fight against Boko Haram.

One can also look at the ICC’s examination of:

  • Myanmar’s ethnic cleaning of the Rohingya
  • Turkey’s aggression and persecution of Kurds
  • Turkey (and Azerbaijan) aggression against Armenia
  • Syria’s use of illegal chemical weapons in 2013 during its civil war
  • Iraq, Afghanistan, Colombia, Georgia and Bangladesh.
  • Democratic Republic of the Congo, Uganda, Sudan, Central African Republic, Kenya, Libya, Ivory Coast, Mali, Burundi, Gabon, and Niger.

In March 2020, the ICC Judge Piotr Hofmański authorized the prosecutor to launch an investigation into allegations of war crimes by United States military and intelligence personnel, Afghan forces and the Taliban in Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003. Secretary of State Mike Pompeo decried the court’s decision and dubbed it a “truly breathtaking action by an unaccountable political institution, masquerading as a legal body,” especially galling when this took place just days after the United States signed a historic peace deal on Afghanistan.

There was a very different coincidence. The Senate had just tabled its report on the Central Intelligence Agency’s harsh treatment of detainees, amounting to torture. The ICC had just announced a preliminary investigation of alleged detainee abuse by US forces in Afghanistan (not Guantanamo) since Afghanistan had joined the court in 2003. Will the Senate investigation and report pre-empt the ICC one? Or will it instigate an even broader inquiry? The rules of jurisdiction will be key.  

Later that same year on 11 December, the ICC Prosecutor concluded her preliminary examination in Ukraine and announced that she would seek a full investigation into war crimes and crimes against humanity committed in Ukraine, including murder and torture during the ‘EuroMaidan’ protests in 2013 - 2014, and war crimes and crimes against humanity committed by all sides to the conflict in eastern Ukraine since 2014, and in Crimea after the peninsula’s Russian occupation and illegal annexation in 2014. Bensouda’s office has been conducting an examination into possible atrocities in the conflict in eastern Ukraine at the invitation of Kyiv since 2014 when Russia invaded and annexed Crimea. Bensouda concluded that she had “reasonable basis to believe that a broad range of conduct constituting war crimes and crimes against humanity have been committed.”

The ICC investigation was initially based on the report entitled “Russian War Crimes in Ukraine in 2014″ in turn based on 60 interviews conducted by Polish and Ukrainian volunteers with prisoners who alleged physical and mental torture as well as murders of captives. The report, submitted in 2016 by Deputy Speaker of the Polish Sejm, Małgorzata Gosiewska, observed that, “there is a reasonable likelihood that war crimes and crimes against humanity were committed in the territory of Ukraine during the period covered by the report,” divided into three categories: committed during armed hostilities, committed during detentions and arrests, as well as committed in Crimea. The preliminary inquiry completed by prosecutor Fatou Bensouda in December concurred with that conclusion: “the context of the situation in Ukraine constituted war crimes and crimes against humanity within the jurisdiction of the International Criminal Court.” However, she left the final decision on whether to prosecute to her successor after her departure on 15 June 2021.

As far as the charge of Russian aggression against Ukraine, the court concluded, “The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict [my italics] between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation [my italics].  A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.” The report also concluded that the situation in Donbas was an international conflict between Russia and Ukraine and not a civil war.

On release of the report on 14 November 2020 before the December ICC announcement, President Vladimir Putin issued a decree announcing his country’s intentions to “no longer be a party” to the ICC’s founding treaty, the Rome Statute.” In fact, although Russia signed the Rome Statute, it never ratified the treaty. Russia announced that it would withdraw from the ICC because the latter “failed to meet the expectations to become a truly independent, authoritative international tribunal.”

Three African nations — South Africa, Burundi and Gambia — followed suit and have made official decisions to leave, citing the Court’s persecution of African states. Gambia’s Sheriff Bojang declared, “This action is warranted by the fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.”

On the same day, 11 December 2020, that the ICC announced its intention to launch a full-scale probe into Russian possible war crimes, the ICC prosecutor urged that an inquiry be launched into both Boko Haram and Nigeria. Unlike Russia, Nigeria actually ratified the Rome Statute on 27 September 2001. Though the vast majority of crimes were by “non-state actors”, the Nigerian Security Forces also needed investigating claimed the ICC. Boko Haram was accused of murder, rape, sexual slavery, torture, persecution, hostage taking and enlisting children under the age of 15 into armed groups. In the ICC preliminary examination, it found a “reasonable basis to believe” that Boko Haram and its splinter groups had committed war crimes and crimes against humanity in Nigeria, through “murder, rape, sexual slavery and torture.” Boko Haram had already claimed responsibility for the massacre of farmworkers in an area outside Borno state’s capital Maiduguri in which dozens of labourers were mowed down by gunmen on motorbikes. Agricultural workers were also tied up and had their throats slit.

Members of the Nigerian Security Forces (NSF) were also suspected of having committed crimes. The Socio-Economic Rights and Accountability Project (SERAP) called for an end to impunity and sent a petition to ICC prosecutor Fatou Bensouda urging her to “promptly investigate reports that Nigerian authorities, military, and some politicians have used/ and are using thugs, soldiers and security agents to intimidate, harass, attack and kill peaceful protesters in several parts of Nigeria, including Abuja, Lagos, Edo, Osun, Plateau, and Kano states.”

The outlier to this pattern is China and its treatment of the Uighurs. In the same period as the Russian and Nigerian decisions, the ICC prosecutors rejected calls by exiled Uighurs to investigate China for alleged genocide and crimes against humanity. The Uighurs had prepared for the ICC a huge dossier of evidence in July that accused China of detaining more than one million Uighurs and other mostly Muslim minorities in re-education camps. Women were allegedly forcibly sterilised.

The ICC office of prosecutor Fatou Bensouda claimed in its report that it was unable to act because the alleged acts happened on the territory of China, which is not a signatory to The Hague-based ICC. ICC approved probe into Myanmar’s alleged crimes against Rohingya although Myanmar is not a member of the ICC. But the Security Council, on which China has a veto, could authorize such an investigation, including one into the behaviour of the military since the coup as security forces have used increasingly violent methods to suppress the daily protests, Over two hundred have been killed thus far, thousands have been detained and Independent United Nations human rights investigator Thomas Andrews told the U.N. Human Rights Council in Geneva that the Myanmar military had committed killings, torture and persecution that may constitute crimes against humanity.

The key jurisdictional issue is whether the alleged crime took place on the territory of a state that at the time was a member of the ICC. Thus, Russia’s withdrawal was of no help in stopping a probe. Nor were America’s or Israel’s since, though neither became members, the alleged crimes took place on territories of ICC members. With respect to China, “This precondition for the exercise of the court’s territorial jurisdiction did not appear to be met with respect to the majority of the crimes alleged.” The ICC also concluded that there was also “no basis to proceed at this time” on separate claims of forced deportations of Uighurs back to China from Tajikistan and Cambodia.

What about the Syrian situation? Syria had never ratified the Rome Statute or applied to join the ICC. If the Syrian situation of using illegal chemical weapons against its own citizens was referred to the ICC, can the Court prosecute Syrian authorities for use of chemical weapons in Syria as Syria is not a party to the Statute of the International Criminal Court. The ICC could have jurisdiction if there was a Security Council referral (Arts 12 & 13, ICC Statute); attacks involving the use of chemical weapons might be prosecuted as part of a charge of crimes against humanity.

Within this global context, the assessment of ICC jurisdictional authority over Israeli actions must be assessed.

On Political Allegiances: Parashat VaYikra – Leviticus 1.1 to 6.7

I do not Know when I personally gave up on the Aristotelian political category system for clarifying different political regimes. We had been taught to identify democracies versus tyrannies, democracies versus aristocracies, democracies versus dictatorships, democracies versus monarchies, democracies versus oligarchies. It was only when I was in university after I read Hannah Arendt that I learned to divide dictatorships into authoritarian versus totalitarian systems, the former controlling just your external political behaviour while the latter permeated your very being and occupied your heart and soul, your brain and your gut. For the issue was not only the number of rulers at the top and the status they were given but the way they exercised power.

I do not think it could have been in high school. For there we had been indoctrinated into believing that there were only three ways of categorizing political entities – colonies that were ruled from elsewhere, nation-states that ruled themselves and empires that embraced both colonies and nation-states of which the largest by far in the world at the time was the British Empire. Every classroom – or so I may have misremembered it – had a big map in which a major part of the world was painted red. States and colonies, we were all parts of one single and supreme glorious empire. But other than singing God Save the King and later transitioning to God Save the Queen when poor King George the Sixth died and a very young princess took the throne, the empire seemed to have little impact on my life and seemed to have failed in seizing control of my affections.

We were taught to be proud of our membership in the British Empire. We sang, “Britannia Rule the Waves” with gusto in the classroom, but given the subversives that we were, in the schoolyard, and when in high school, in the basement lunchroom, we sang a version of the national anthem at the time that made fun of the king – even when George was no longer alive. Or we sang Pete Seeger folk songs for our representative in parliament was J.B. Salsberg, a communist. Or some of our classmates were ardent Zionists – Ricky Rapoport (Friesem) stood out – and we learned how the British Empire had first promised Jews a homeland and then had stood in the way of the self-determination of the Jewish people in Palestine.

Our allegiances were all over the map literally. In my row in high school, there was a card-carrying member of the Communist Party, a Bundist, a Socialist, two students who belonged to families who were members of the Conservative and Liberal Parties respectively. The whole political spectrum lay before us as we argued over loyalties, or, in my case, looked cynically on all the various ideological debates and insisted they were a distraction from the main objective which was to earn money and escape poverty.

Why was I not caught up more by the pleas for charitable donations to the new struggling Jewish nation in former Palestine? It was de rigueur for all of us – whatever our political or non-political associations, to be given Blue Boxes at the various heders or Jewish schools we attended after public school and Sundays. We carried them around door to door to ask for pennies to be dropped in to support the United Jewish Appeal and, in particular, a struggling Israel. We did our duties. But for the vast majority of us at the time, Israel did not command our hearts even as we solicited voluntary donations to help the nascent state. We did not recognize that this fund-raising that had been introduced in Exodus to support the building of the Tabernacle was a very early stage of a method of indoctrination and developing loyalties.

Sometimes, to enhance our pride, we would be shown films of pioneers working on the soil and growing oranges. At other times, we were subjected to superego trips as the films depicted the struggling emaciated Jews released from concentration camps living in tents in the desert. Such films evoked both shame and pity rather than pride and I do not believe helped in shaping our loyalties in the long run, except to the Jewish people in general rather than the Zionist pioneers.

But that was their function – to capture our imaginations and imprison our loyalties for a lifetime of service and dedication. Of course, we had been prepared for this education in loyalty in a way that had a much deeper appeal than the anthems and songs we had been taught in public school about the British empire. But both efforts worked on manipulating our feelings. And turned us into unconscious political schizophrenics. Why else would we name our basketball club in the Jewish Y “Albion.” We were both envious aristocrats and Jewish plebs.

I was ten-years old when Israel became an independent state. I had not yet started playing hooky from Jewish school to sell Daily Star newspapers on the corner as my own form of a Blue Box campaign to help my mother raise myself and my two brothers. Why did I, unlike my brother who was fifteen months older, refuse to have a Bar Mitzvah, even though I had worn tsistit over my undershirt? Admittedly, I tucked the strings underneath my pants rather than showing them off hanging over a belt? I had started rebelling at eleven and became a full-blooded apostate by the time I was twelve. I had stopped attending heder after school Monday to Thursday and on Sunday mornings. My mother had to know it and looked the other way, for I was earning money.

Greed and need had displaced aany political emotions. My loyalty to a larger group than my immediate family was put into a shell, or, if it had existed then, a deep freeze. My mind was dedicated to reading Black Diamond fiction – the designators of the nineteenth century tales of daring-do and adventure that provided the main reading material for my imagination and my brain. And I do not know what happened to my heart at the time, but it was kept bottled-up and out of harm’s way lest any system of higher loyalty distract me from my main purpose in life – achieving high marks at school to leave the lumpenproletariat.

What had happened to the pride and compassion of the Zionist appeals? I admired them at a distance – Ricky Rapoport was a heroine for me – but I vowed that I would never marry such a self-sacrificing cause and serve a larger political goal. And what about the Orthodox Jewish religion that had been instilled in me since I was very young? It used rulers cracked over my head and ritualistic education – even in reading and chanting – so that it remained on the surface, something which remained empty as far as any appeal to my heart but also even in the ritualistic practices that no longer had any meaning. Though it took until I was fifteen or sixteen to eat my first piece of sweet and sour pork spare ribs at a Chinese restaurant, by twelve I had already cast aside those rituals. Instead of inspiring fear in me, they stirred up my rage and my rebellion.

By thirteen, I was a politically emotional orphan. Then, whence came my norms? From the training of my intellect in high school. From the directing of my greed to satisfy my deep needs after school through the various economic enterprises in which I engaged, my pride did not emerge in singing Hatikva, the Israeli national anthem, and certainly not in singing God Save the Queen or even The Maple Leaf Forever. I was most proud of the house we bought my mother by the time I was sixteen.  It is hard to believe it today, but we had accumulated enough savings – especially since we rarely spent any money – to put a down payment on a house.

I had pride – but not in a polity. I did very well at school and was a top student. I earned lots of money on the side from various enterprises, from selling newspapers to scalping tickets, from running a syndicate selling ribbons at football games to winning contests for new subscribers to The Toronto Star. I was a hustler like Mordechai Richler’s Duddy Kravitz. If my religious loyalties had become much more impoverished than our family circumstances, if my political loyalties had been displaced by cynicism and opportunism so that I lacked any emotional attachments to a polity, I still had feelings and passions. But they were directed elsewhere.

In university, that changed. Louis Menand in a very recent New Yorker article (“Change Your Life: How student radicals shaped the sixties,” 22 March 2021) described the history of the new left in the United States as the emergence of a different form of shared community neither tied to a state nor involved in the advancement of self-centred goals. I had abandoned medical school. I had helped organize and develop student co-op housing and became president of the University of Toronto chapter of the Combined Universities Campaign for Nuclear Disarmament which I and a friend had started.

I had found a political non-state centered home, or what I thought had been a political home. But as Menand showed in the United States, the sense of belonging was transitory. Instead of being rooted in ideology and a workable political program based on an analysis of the distribution of power in society, it was really a series of memberships in different organizations adept at superego practices. I sacrificed my ego-focused identification of serving personal need or greed for romantic utopian visions that kept me outside the embrace of any polity. I, like members of the Free Speech Movement, the anti-racist movement and the anti-war movement in the United States, had found a series of transit places to hang my proverbial hat or rest my head, but never to command any deep loyalties. My distrust went too deep.

I had read C. Wright Mills’ The Power Elite. I had learned that, “Ordinary men often seem driven by forces they can neither understand nor govern,” I would escape both being governed and the responsibilities of governing by being the conscience of my generation, haunting the polity with alternate idealistic scenarios that were akin to serial romantic affairs. That is how I personally would escape the strictures of a mass society and the ordinariness, duplicative and duplicitous life of the organization man.  Democracy did not live within a polity but on the streets.

However, not on the streets alongside union workers on strike for higher wages. For they had been coopted by a corrupt system. Institutional loyalties were dangerous. Institutional loyalties were anathema. Yet we would create our own university, an anti-university university run by the students and dedicated to learning for its own sake, not realizing at the time that the vision of Rochdale College was simply a throwback to the amateur university of the eighteenth century that acculturated the political elite of society. We would educate the anti-elite at a time just when our university, the University of Toronto, was transiting from a school inculcating professionalism as a Sanctuary of Method to a school married to society and its goals of social service and self-reformation.

In the meanwhile, my fellow travelers from high school had in large part taken a different route. Their feelings had not been liberated from an organized polity and the institutions of civil society, nor from their Jewish affiliations. While community activists, in contrast to our band of rebellious new leftist activists, were busy calling for support for the development of Israel or eventually for the freedom of their co-religionists in the USSR, my compassion increasingly became universal and was directed at the whole of the Third World, but without any institutional underpinning. The mechanisms for sustainability were never there. The attachments were real but fleeting.

And they were steeped in the politics of resentment, resentment of the economic elites who took the route of watered-down (as I then saw it) Judaism to remain both part of the Jewish establishment while joining the political establishment. They had simply sold out. They embraced humanitarianism married to progressive ideals, but within strong institutional attachments that I avoided and evaded as forms of imprisonment for an authentic existential self. However, every few years, I had to re-invent myself. For I had no institutional loyalties to sustain me. But I turned a weakness into a virtue.

During my lifetime, I became a refugee from anti-institutionalism. I came to recognize the importance of institutions for sustaining and reinforcing emotional loyalties and acting as an emotional reservoir in times of drought to help individuals overcome hurdles.tt took me decades, but gradually, very gradually, I embraced Zionism. And then Judaism, the reverse order of most Jews of my generation.

It took until 1967 for my fear for the demise of the fledging state of Israel to manifest itself, and then that took six years to mature and marry pride in its accomplishments which I then tried – late in the game – to inculcate in my children.

So what of Leviticus and the glory given to ritual and sacrifice and purification? I have always held, and still believe, that ritual is a method of capturing and taming rebellion – in two very opposite senses. Through ritual, those who used to hold power are displaced. At the same time, the displaced are given formal roles where they are impotent in initiating action but revered for the role they once played. That is what has been done with the British monarchy in the nineteenth and twentieth century. The ancient Israelites tamed the throbbing new Hebrew nation-state by submitting the members to a theocracy rather than either tribal passions or military zeal. The power of the sword would be tamed by belief and ritualistic practice.

Just as collecting pennies for Blue Boxes where most of the funds went to Israel, and collecting voluntary donations of gold, silver and copper helped inculcate loyalty to the emerging ritualistic practices, the latter had to be consolidated to stomp out the history and future prospects of periodic rebellions against authority. The issue was not simply purifying ourselves of sin – of envy, of resentment, of disdain, of cynicism – but the more basic sin of any action that detracted from institutionalized power. The worst of these is inaction.

Judaism is about giving witness. Judaism is about offering testimony to what one believes. Rabbi Yotz Geenberg offers the case of the witness who observes a sin – such as a murder – and refuses to come forward.

I want to call special attention to one of the cases that requires a hattat. A person witnesses a crime and hears a public exhortation asking witnesses to step forward and report what happened. The person saw the crime, but, despite the exhortation, still decides not to step forward as a witness. That person is guilty, and required to bring a hattat offering to clear himself of his guilt. We are not dealing here with any sinful act. We are dealing with a non-act, a decision to be a bystander and not get involved, even though the person knows the culprit. The guilt stems from not having acted to balance this crime with justice (or prevent future crimes) by witnessing, but choosing not to act. Still, this person is not impure and committed no act of sin. What, then, is this person being purified from? “The Pollution of Non-Acts”)

This was precisely the type of case of bystanders who could and should have acted to prevent or mitigate the Rwandan genocide that I and Astri Suhrke had focused on in our studies of the Rwandan genocide. These acts of impurity are not acts of commission but of omission. They are sins of non-acts. It is not enough to get members to act in certain ways, to emotionally enwrap them in a community. The community can only be sustained if people continue to commit themselves to it beyond the practice of a voluntary donation. Otherwise, rebellion will once again rear its threatening head.

Yitz Greenberg cites Jacob Milgrom:

Milgrom shows that if one looks at the sins that require a hattat,5 as well as on which altar the sacrifice was brought and where the blood of the sacrifice is spilled, the following pattern emerges. When an individual involuntarily, e.g. unintentionally, commits a sin, s/he generates a moral pollution in the culture of the community. The symbolic language of the sacrifices says that the toxic effect ‘attacks’ the outer court of the mishkan and its altar. If the whole community or its leadership commit an unintentional sin, then the act is a more weighty creator of pollution. As it were, the toxicity penetrates further and ‘attacks’ the altar of incense in the inner sanctuary. Finally, if intentional and unrepented sins are committed, the toxic fallout spreads farther and deeper. The spiritual pollution ‘attacks’ the ark in the Holy of Holies, in the very innermost sanctum of the tabernacle.

Greenberg credits Milgrom with opening his eyes “to the central themes of the book of Leviticus—that there is a struggle between life and death in the world and humans are asked to throw the weight of their actions on to the side of life. This in turn influenced me deeply as I developed my forthcoming book on Judaism as the religion of life in which God invites humans to partner in the work of filling the world with life and repairing it to sustain life at the highest level.”

Sustaining and expanding on life and resisting decay and self-destruction is, of necessity, a collective enterprise, nowhere more apparent than when a pandemic strikes humanity. That means everyone – and I mean everyone – must be enlisted in the enterprise of serving life and resisting death and the anarchism of the New Left that shifted to the New Right in the late nineties with the worship of libertarianism. Those political positions have to be countered by enlisting our emotions in a larger purpose, and to do so in an institutional format that is sustaining. Leviticus provides a protype for channelling and controlling “frenzy”.      .

Toxicity. Communitarian emotional pollution. The normalization of destructive dissonance. These are collective impurities that no polity can tolerate when they take on the dimensions of a plague. A society can crack down. A society can create new forms of emotional institutional marriages that force need and greed to serve the purposes of the heart (compassion) and the mind (manipulation). Israel in Leviticus had to, as Greenberg recognized, turn itself into a culture of sin and death to resist and overcome both.

That is why theocracies emerge that were not in the list of polities to which I had been exposed as a young student. When the life of the community as a whole is threatened, when there is collective contamination at a level that leaves herd immunity behind in favour of the generalized corruption of a Sodom and Gomorrah, the strict reduction of collective sacrifice for the purpose of the survival of the community becomes an irresistible option.

In the end, it will mean that the theocrats of power will have their day and the rule of ritual and purification will displace the rule of law. Priests displace both jurists and politicians as our emotions are put through a sieve of purification. This is seen as the only option to ensure individuals opt into the collective enterprise of a polity rather than opting out as the New Left did in the sixties and the New Right did in the late nineties and in the twenty-first century.

As Greenberg summarizes the alternative prospect, “life needs to be constantly affirmed and renewed. Failure in either the ethical (such as by-standing in the face of sin) or ritual realms (such as acceptance of death impurity’s presence without reasserting life) generates an atmosphere where the ability to resist sin or death is debilitated. Without repentance and serious action to stop this process of sin/death entrenching itself, the moral and spiritual oxygen will be sucked out of the community. The final result is that the Divine Presence will depart from such a society.”

But then what is the difference between this effort to overcome anomie than the doctrines of fascists and, in the Jewish context, the beliefs of the neo-Kahanists? For, in the end, what is at stake is solidarity, once upon a time the solidarity of the Communist movement (“Solidarity Forever”) but now the very loose solidarity of the true believers in fictions and lies, but beliefs that bring the emotion of community into otherwise sterile lives.

That analysis of the fascist alternative is a tale for another day.

With the help of Alex Zisman

The International Criminal Court (ICC) and Israel

Part IV: Background and the Context of Exceptionalism

The chief prosecutor of the International Criminal Court (ICC) in The Hague, Fatiou Bensouda, determined that the ICC has jurisdiction and can investigate both Israeli and Palestinian behaviour, even though Israel is not a member of the court, even though the US, which is also not a member, firmly opposed any probe that targets Israel “unfairly,” and even though Prime Minister Netanyahu of Israel called not only “Foul!” but accused the ICC war crimes probe as representing the essence of antisemitism.

An ICC investigation is a very serious matter that could seriously affect Israeli officers and soldiers and subject them to arrest warrants if they travel outside of Israel. Although the probe promises to investigate Palestinian behaviour as well, both the Palestinian Authority and Hamas welcomed the investigation – in stark contrast to the reaction of Israelis and the Israeli government. Before going into the question of whether the investigation is likely and what pushed it ahead at this time as well as the implications for Israeli citizens, it will be helpful to understand the historical background and current political context in which the court operates.

Without going into the full history of the ICC, a sketch may be helpful. Of course, history becomes concrete when you visit a building or set of buildings that embody that history, such as understanding democracy somewhat better by visiting The Capitol in Washington, D.C. A visit to the Peace Palace in the Hague in The Netherlands plays such a role in understanding international criminal justice. Visit The Hague. Walk into the library and its collection of books on international jurisprudence. Pull off the shelf The Rights on War and Peace: Including the Law of Nature and of Nations by Hugo Grotius, a seventeenth century Dutch philosopher. Hugo Grotius (1583-1645) is justifiably known as the father of international law.

The primary function of international law is to enhance the prospect of peace in this world. The building in The Hague housing the ICC is not known as The Peace Palace for nothing. The pursuit of international peace has been a two-pronged effort through creating international political institutions, like the League of Nations and the United Nations, and legal institutions culminating in the International Criminal Court (ICC). In the library of The Peace Palace, can be found a very large painting of Dutch gentlemen wearing robes and legal collars. The painting is a large portrait at the centre of which and standing alone with a scroll in his hand is Hugo Grotius.

A central focus of concern for Hugo Grotius was the reconciliation of national interests and the avoidance of war as a means of settling disputes. But for Hugo Grotius, in order for there to be international law, there first had to be nations and national interests. That is why Grotius should be as renowned for his re-conceptions of the modern nation-state as much as for his work in providing a foundation for international law. Grotius was a theologian as well as a philosopher. He read Hebrew and was deeply immersed in and knowledgeable about the Torah and Jewish Talmudic commentaries. Grotius envisioned extending the rule of law rooted in revived nation-states, such as The Netherlands, and by way of treaties among those states to make international law a reality.

The nation-state was the primary political creation emerging out of tribal culture recorded in the biblical narrative. As Hugo Grotius insisted, “A state is the perfect body of free men united together to enjoy common rights and advantages.” Each nation has a distinct culture and various interests, but the basic foundation of the nation-state is the rule of law to mediate disputes among and between individuals and various tribal cultures that the nation-state is intended to supersede. International law is simply the extension of the rule of law to the international sphere and the governance of conflicts among competing nations to enable conflicts to be resolved through the rule of law rather than through violent conflict. Scholars may publish in the academic journal, Grotiana to sort out the many conflicts in interpretations of Grotius, but the overall outline is reasonably clear, For a useful introductions, one can consult Renée Jeffery (2006), Hugo Grotius in International Thought.

To bring Hugo Grotius centre stage to the conflicts over the creation and development of the ICC, reading a 1999 article like that of Marcell David in the Michigan Journal of International Law (28:2, 337-412) “Grotius Repudiated: The American Objections to the International Criminal Court and the Commitment to International Law” won’t bring a reader up to full speed, but he or she would then have an initial driving lesson in wading through the thicket of disputes over the ICC. That very long essay begins with this summary:

“We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality.”‘ In July 1998, in recognition of this incontrovertible proposition, 120 states took the first steps towards the creation of an international court with jurisdiction over the most serious of international crime-aggression, genocide, crimes against humanity, and war crimes-by adopting the Rome Statute for the International Criminal Court (the ‘Statute’ or the ‘Rome Statute’)”.

Israel and the United States initially supported and were involved in the preparations for the creation of the ICC, but neither country signed the Rome Statute. Further, the US became the most vociferous objector and encouraged other countries not to join the court. Americans objected to the court on the following grounds:

  • As constituted, the results would be absurd.
  • Instead of increasing participation in peacekeeping missions by member states, participation would be inhibited.
  • There would be a potential to trivialize international justice by initiating legal actions against any alleged perpetrator of war crimes, crimes against humanity, genocide and aggression,
  • It would encourage politically motivated charges, specifically against United States citizens because of their country’s role in ensuring international security, and against Israel because of its precarious security position and existential need to defend its national security.

In this series of blogs, of necessity I will spend very little time expanding upon:  

  • The definitions and clarification of the crimes covered by the ICC
  • The role of the Prosecutor
  • The relationship between the ICC and the UN Security Council,

and instead concentrate on the Court’s jurisdiction over states not party to the Statute.

In my prefatory blogs using movies as an introduction, my last one was on the abuse of human rights of alleged enemy combatants in the name of both national and international security. The movie review prior to that was about unequivocal war crimes committed by the Nazis against enemy combatants, Americans (and British) became victims.of international aggression and war crimes as well as perpetrators. The Rome Statute recognizes those opposite possibilities and, in the first instance, relies on state statutes and courts to adjudicate such charges and only serve as a “last resort” in the case of failed states or the case of failures of states to properly apply the statute.

In other words, state responsibility is the foundation of establishing interstate responsibility, but in a context in which the courts are a long way off from establishing a substantive body of case law to adjudicate all the conflicts over interpretation. The instances of alleged abuse of international law arise mainly when states exercise rights of national defence against other countries when there is no UN Security Council resolution authorizing such defensive actions, in the case of the United States, this happens because of its doctrine of exceptionalism and its self-adopted responsibility as the leading state guaranteeing international security. In the case of Israel, exemption is claimed because of the alleged bias of the United Nations in dealing empathetically with Israel’s national security needs.

Let me begin, not with Israel, the main country that is the subject of this series of blogs, but with the United States, specifically the American doctrine of exceptionalism. And I am not talking about the jingoist rhetoric of Donald Trump and his nation firster followers, or his internationally imperial aggressive predecessors, Dick Cheney and Donald Rumsfeld that propelled America illegally into the war against Saddam Hussein on the fraudulent claims that Iraq had weapons of mass destruction and was also a backer of al Qaeda. I am talking about liberal exceptionalism as espoused most vocally currently by President Joseph Biden.

The Republican Party brought the American doctrine of its exceptionalism into disrepute following the invasion of Iraq and seemed to seal the coffin on America as the city on the hill and the supreme icon of democratic values when its own citadel of democracy was attacked by an insurrectionist mob incited by the country’s own president. The 6th of January riot, the violent assault on the heart of American democracy, announced to the world the“end of the road for American exceptionalism.” America as an icon had long suffered not only from its excesses in the international arena, but from its gross failures domestically:

  • The richest country in the world, but one in which, as an exception to all developed economies, half the population was served by a health system characteristic of the Third World.
  • The impotency of the political system in passing legislation given the obstructionism of the Republican Party to fundamental principles of governance and its gerrymandering and efforts at voter suppression to retain minority political control.
  • The failures not only of the health system epitomized by the largest death toll from Covid-19 per population of any developed country, the fractured political system, but an economic system in which the well-being of both the working and middle classes has been stagnant for decades while the wealth of the 1% increases exponentially.

The United States as an upholder of the ideals of international law has to be understood within this larger context. Instead of a global exemplar, the US had become an object of both derision and pity. But, led by Joe Biden, American liberals are fighting back once again to occupy their place in the sun. The Republicans and Democrats are united in cheering on American innovation and peerless can-do spirit.

Biden and his cohorts believe in America as the exemplar of democratic virtues. the righteousness of American values and its liberal ideals. For in the words of Peter Bainart, American exceptionalism is an article of religious faith, a theological principle rather than a description of historical fact. Further, given the realities that belie the ideal, it has become not a promise but a form pf “magical thinking” when it comes to Afghanistan, Iran, Iraq and the multitude of wars around the world.  Further, the paucity of any claims to exceptionalism is exemplified by the domestic politics and condition of American society in the contemporary world.

Israel has its own claims to exceptionalism in its mistreatment by the United Nations, the disproportionate enmity directed its way, the double standards by which its behaviour is assessed. It is an exceptionalism of victimhood certainly justifiably rooted in a long history of antisemitism culminating in the murder of six million Jews by the Nazi regime. Except this tale of exceptionalism is now tied to a number of contemporary paradoxes. Israel is the strongest military power in the Middle East and the twelfth strongest in the world. Israel is the start-up nation par excellance. Israel has immunized a far greater portion of its population against Covid-19 than nay other nation. In the context of these exceptionalist claims, the American and Israeli dissent from accepting the international criminal court’s actions against Israel must be examined.

I am, of course, assuming that the fundamental principles of international law exist rather than simply a set of moral and normative guidelines. That means that individuals can be held accountable if they do not behave in accord with those legal principles. Further, in addition to holding individuals accountable, there must be a system to both clarify and interpret those norms as well as enforce them. Powerful nations which insist on an exemption or pariah states which claim their exile from the community of nations because of a failure in the international system rather than its won decisions, fundamentally detract from the effort to establish universal jurisdiction for international law. Otherwise, only political interests, not international law, will govern the behaviour of  individuals and nation-states in the international arena.

Passover is almost here. Grotius rooted his “right of resistance” of subjects within a sovereign state or empire, not on the basis any inalienable rights possessed by a people either to land or self-government, but to the absolute necessity to defend oneself and survive as an individual or a nation in the face of powers that turn their swords against innocent subjects – provided such resistance does not result in an even bloodier mess as in the Syrian Civil War. The principle behind this conception is not inalienable rights but “extreme necessity.” The question is the extent to which such necessity can be reconciled with the rule of international law.   

Part III; Film Review A Call to Spy and The Mauritanian

There are literally hundreds of British and American spy movies that have been made over the years, from the 1935 classic, The 39 Steps, the 1940 other classic, Ten Days in Paris starring Rex Harrison about a double agent in France, to the more recent 2021 historical drama, The Courier about Grenville Wynne, the British businessman played by Benedict Cumberthatch sent to deliver messages to an agent in the Soviet Union. The 1944 Hitchcock classic, Hotel Reserve, initiated a spy theme Hitchcock repeated, the innocent man suspected of being a spy. (North by Northwest) There was also the 1950 Highly Dangerous about counter-intelligence operations against germ warfare. In 1951, High Treason dealt with the activities of British counterintelligence agents operating in Britain to capture a saboteur. The 1967 thriller, The Double Man, starred Yul Brynner as a brooding CIA agent operating in the Austrian Alps. Spy films almost always reflect the major concerns of the time when they are made rather than of the time portrayed. Thus, Ring of Spies (1964) portrayed the real-life case of the Portland Spy Ring, the possible origin of the late twentieth spy scares. The Ring’s activities led to “Reds under the bed” scare stories in the early 1960s.  

The 1970 thriller, The Looking Glass War, wasabout another agent sent behind enemy lines by his superiors indifferent to his safety. Betrayal by one’s own superiors became an important new theme in spy movies. The Executioner (1975), starring Dick Bogarde and Ava Gardner, was about a plot to prevent a Communist defector from returning to the Soviet Union. The Eagle Has Landed (1976) starring Michael Caine, Donald Sutherland and Robert Duvall was about a fictional German plot to kidnap Winston Churchill. Night of the Fox (1990) starring George Peppard and Michael York was another film about an officer sent behind enemy lines. The central figure in the 1993 The Innocent was an American engineer sent to Berlin to spy on the Soviet Union. The Ipcress File (1996) starring Michael Caine also focused on counterintelligence and told the story of an espionage agent at war with his own bureaucracy as he investigates the kidnapping and brainwashing of British scientists.

Whether innocents or traitors, whether working in intelligence or counterintelligence, virtually all the agents were male. In contrast, the 2019 movie, Official Secrets,starring Keira Knightly is a morality tale for the 21st century. Official Secrets tells the true story of a real British Intelligence whistle-blower, Katharine Gun, who leaked a top-secret NSA memo exposing a joint US-UK illegal spying operation against members of the UN Security Council in the lead-up to the 2003 Iraq invasion, As usual, Knightly is brilliant in that role.

These spy films all may deal with intrigue, deceit, disguise and discovery, some may be thrillers while others are comedies and still others are comic books like the Bond series, but the most common ones are dramas. The ones I find most interesting are based on real life spies. Commemorating real life female spies and whistleblowers should be no surprise in the twenty-first century even when the stories go back to WWII.

Last evening, we watched a British movie released last year called, A Call to Spy. It is another docudrama, this time about women who were trained as spies and dropped behind enemy lines in France during WWII. There were a number of women British spies, such as Violette Szabo, a Special Operations Executive (SOE) agent during WWII who on her second mission into occupied France, was captured by the Germans army, interrogated, tortured and finally sent to Ravensbrück concentration camp to be executed. A Call to Spy is specifically about three of those women:

  1. Noor Inayat Khan, played by Radhika Apte, eventually like Szabo was awarded the George Cross and the French Croix de Guerre. She was a Sufi Muslim, a very young author of children’s books, and daughter of a very famous Indian musician – her mother was the American poet Pirani Ameena Begum. Noor was the first female radio operator to be sent from the U.K. into Occupied France in the summer of 1943 under the code name “Madeleine”.
  2. Virginia Hall, played by Sarah Megan Thomas, was also one of the film’s screenwriters. She was a one-legged American plutocrat from Baltimore with a prosthetic leg who ran a whole spy network in France during the war and eventually became, I believe, the first female agent in William Donovan’s CIA, then originally the OSS; the American Office of Strategic Services. Her most heroic feat was not fighting the Nazis but her fight against nature’s cruel and cold winter as she trekked across a 7,500-foot pass through the Pyrenees to Spain with a prosthetic leg. (Cf. Sonia Purnell (2019) A Woman of No Importance: The Untold Story of Virginia Hall, WII’s Most Dangerous Spy, about the code named spy, Brigitte Le Contre)  
  3. Vera Hall, née Vera Marie Rosenberg, the Jewish émigré from Romania played by Stana Katic who starts as a secretary to the senior military officer on Baker Street, Captain Harry Walsh, charged with training the spies, setting up the network in France, but for whom Vera emerges as the individual directly responsible for training, deploying and protecting those spies; she was undoubtedly the model for Miss Moneypenny in the James Bond series.

All three women worked for the “Ministry of Ungentlemanly Warfare”, the Special Operations Executive (SOE) under the command of Walsh. The SOE volunteer force was established in June 1940 in London to wage a secret war behind enemy lines and “set Europe ablaze” through espionage, sabotage and building a resistance network in occupied Europe.

The movie could have concentrated on the foreignness of each of these three women, but that fact is given only a glancing reference. Much more is made of the fact that these were women. But other than as interesting givens, these crucial facts play only a small part in understanding the risks these women took with their own lives and the lives of others, thereby underplaying a critical dimension to the drama.

For example, because Vera is a Jew, she is often scapegoated and suspected by her British upper crust peers and is only at the very end, after her boss goes to extraordinary lengths (again, only hinted at) obtains citizenship papers. It is well to remind us and all Britons in the age of Meghan Markle what an important part that foreigners played in Britain’s struggle for survival and how easily they were taken for granted and how much prejudice they had to overcome.

None of these women use their fragility or supposed helplessness to become stereotypes to get around the Nazis, but they were less recognizable as spies for there were many women their age on “the home front”. Evidence also has mounted that male agents were less resourceful and inventive than their female colleagues. That is not the only critical dimension underplayed. The acts of betrayal by Frenchmen are part of the film, but just as incidental facts. The failure to go into any depth of any of these various dimensions that make spy movies so fascinating, are missed opportunities. They are all there – self-doubt, heroism and cynicism, and many more characteristics of the genre – but not one of these themes is given its proper due.

As a sign of the bravery of the three women, it is well to note that after the liberation of France in 1944 and the eventual dissolution of the SOE in January 1946, Atkins searched for the missing 118 SOE personnel only to learn that all but one of them had been killed. Atkins traced all 117 and brought their killers to war crimes trials (more about that in the next blog). However, this blog is about one of America’s worst and most deplorable hours, when captured alleged terrorists were kept in Guantanamo Bay, held without charge and tortured.

One of the scenes in A Call to Spy involves subjecting one of these spies to water torture – that is forcing their heads underwater and holding them there until they almost drown and then releasing them gasping for air. It is a scene that I am sure you have seen in many movies. It is but one of the many illegal and unethical actions during war conducted by one side against its enemies on the other side. In the film, The Mauritanian, it is dealt with not just as a horrific technique in the spy’s and the counter-intelligence officer’s kit of tools, but it becomes a central focus. For the CIA had come a long way from Donovan’s days and the OSS when he initiated what became the Central Intelligence Agency to eventually become a behemoth based in Langley, Virginia where it adopted the use of Nazi horrors against its enemies, though The Mauritanian is more concerned with the use of such measures by military intelligence.

The problem is that films which focus on bravery and self-sacrifice in our cynical age are viewed more as hagiography rather than in-depth explorations of the critical virtue of courage and the important role that this particular trait plays in a country’s finest hour. But what if the film is about a country’s most disrespectful hour when the practice of intelligence and counterintelligence were employed in the twenty-first century on the model of the practices of the Third Reich, when “enemies” were kept in prison without charge and outside the boundaries of the United States presumably to escape the strictures of US domestic law against torture?

The Mauritanian is perhaps more a prison and a legal drama as much as it is a tale about intelligence operations. Based on the account of Sohrab Noshirvani’s experience in Guantanamo based on Mohamedou Ould Salahi’s account in Guantanamo Diary of Sohrab’s experience, the movie stars Jodie Foster, Sohrab’s lawyer, Nancy Hollander (Foster was nominated for a Golden Globe and won the British Academy Motion Picture award as best actress). Tahar Rahim plays Sohrab and Benedict Cumberbatch, who played Grenville Wynne in The Courier,and in this film plays Lt, Colonel Stuart Couch, the intrepid military prosecuting attorney intent of  proving terrorists guilty and sending them to prison, but, as a man of integrity, discovers that this was not his mission or what was expected of him as he uncovers more and more evidence that there was not even a shred of evidence supporting the guilt of the man arrested by the CIA and held in Guantanamo Bay.

Yet Sohrab was held there for fourteen years – yes 14 years, and without a criminal charge ever being levelled against him. Worse yet, evidence was fabricated. Sohrab, as I stated above, was subjected to water torture. Of course, he eventually confessed, but his confession is worthless, does not fit in with actual facts and is simply extracted from the victim who wants to escape the pain. In a time of COVID, it is unlikely that the movie will earn back its costs. However, it will win a place in the tales of international injustice and provide solid fuel for the need for an International Criminal Court (ICC).

However, as I will try to show, this is not a simple morality play in which the ICC stands for objective and true justice while spy agencies are the repositories of evil and injustice. As one might expect, history is far more complicated. However, as a propaedeutic in support of the ICC, one would do well to watch The Mauritanian that has been nominated for many awards, including best supporting actress above, best actor in a leading role (British Academy, Golden Globes)), best adapted screenplay and best cinematography,

Best of all, it is free on Netflix.

With the help of Alex Zisman

Part II: An Ironic Introduction to my Looming Inquiry into the ICC

The Looming Tower: A Review

The Syrian War is now ten years old. There is no ending in sight. The war has spilled over into surrounding countries, but particularly Lebanon. Yesterday I listened to a webinar on the situation in Lebanon. The three Lebanese reported on the terrible state of their country. Blackouts were recurrent. The government was at a standstill. The economy and the country’s currency have collapsed. The unemployment rate has soared. But worst of all have been the assassinations.

Since 2004, a series of bombings and assassinations have plagued Lebanon. The worst year was 2005 when scores were killed. An average of two very prominent officials, activists, intellectuals or journalist have been killed every year since then, not counting many publicly unknown figures. In February of this year, 58-year-old public intellectual and publisher, Lokman Slim, was gunned down as he was getting into his car outside his home. Hezbollah hoodlums were suspected. In 2020, Lebanese photographer Joe Bejjany was shot repeatedly by hooded men on a motorcycle as he prepared to take his children to school. Again, Hezbollah agents were suspected of the murder.

This wave of bombings began with the assassination attempt on Marwan Hmade, and initially peaked with the assassination of former Prime Minister Rafiq Hariri on 14 February 2005. Last year, fifteen years after his murder, Salim Jamil Ayyash was found guilty in the Hague of being part of the “red cell phone network” that planned Hariri’s assassination. The other three defendants, Assad Sabra, Hassan Oneissi and Hassan Habib Merei, were found not guilty. It is very rare that an assassin is caught and held accountable.

The commentators, some like Rafiq prominent members of the Shi’ite community, in the discussion yesterday accused Hezbollah gangsters not only of responsibility for he many assassinations, but contended that Hezbollah was simply waiting for the total collapse of the Lebanese political system which the organization was facilitating. The experts told a tale of corruption, impunity, kidnappings, bombings and assassinations in which Hezbollah provided the cover for those “raping” the state. The courageous Lebanese commentators dubbed Hezbollah a non-state mafia that moves freely while protesters are arrested and tortured.

Hezbollah was also described admiring bin Laden. In the ten-part television series, The Looming Tower, Tahar Rahim plays Ali Soufan, a real-life Arabic-speaking and Lebanese-born FBI agent. He describes Al Qaeda that the FBI was trying to link to the explosion on the Cole that killed 12 American sailors and the bombing of the U.S. embassy in Nairobi in which 12 Americans and over 200 Kenyans were killed and over 4,000 wounded. Al Qaeda was a snake. You may cut its head off, you may kill bin Laden, you may destroy the whole leadership core, they just grow new heads and sire more snakes and adapt new organizational titles. For him, al Qaeda was just the best known multi-headed hydra at the time, but the problem was the recruitment of young men ignorant of the Koran to murder and maim without any creative program on their agenda. In a webinar yesterday, Katrina Mulligan, Christopher Costa and Matthew Levitt called for “rethinking US counterterrorism two decades after 9/11.”  

That is what the series, The leaning Tower, also suggests. To repeat what I wrote at the end of my last blog, thisdocudrama, based on an adaptation of Lawrence Wright’s Pulitzer-winning 2006 book, The Looming Tower: Al Qaeda and the Road to 9/11. That book,in turn, was based on the 2004 9/11 inquiry and report in the United States, The 9/11 Commission Report, formally named the Final Report of the National Commission on Terrorist Attacks Upon the United States. That report offers a stellar example of a high-quality investigation into causes and failures.

It also juxtaposes the operations of two agencies in the United States, the FBI that operates on judicial premises and criminality concerns, and the CIA concerned with the defense of the United States and, where warranted, war against its enemies. Both agencies have very important and parallel investigative functions that clashed in their investigations of the activities of Al Qaeda. The series helps bring forth the differences between the two approaches to the sources and conduct of international affairs.

The 9/11 report offered the official American account of the events leading up to the terrorist attacks against The Twin Towers in New York, the Pentagon and the failed attempt to have a civilian airliner strike The Capitol on 11 September 2011. The docudrama concentrates primarily on the end of Wright’s book, on the failure of the CIA to share information with the FBI rather than on the largest part of the volume covering the emergence of Al Qaeda.

Unlike either the IAEA or the ICC investigations, the final part of the 9/11 report was self-directed rather than an investigation of an “Other.” It was a self-critical study of the gaps in intelligence gathering, in communication between and among agencies and to policy makers, of bureaucratic office politics and personalities undermining the importance of defending the United States, and most of all, whether investigating agencies have a primary responsibility to find out the truth or to serve the biases of their political masters. The ending is quite cynical. For in the final scenes [viewer alert], the branch of the CIA, the agency primarily responsible for the communications failures, is doubled in size. Even more significantly, it is put back into the hands of the expert who also kept the information totally in-house that, if shared with the FBI, would have undoubtedly stopped the attack.

The reason allegedly was because, in the TV series, Martin Schmidt played by Peter Sarsgaard (the thinly disguised Michael Scheuer of the CIA, the National Coordinator for Security, Infrastructure Protection and Counter-terrorism), distrusted the FBI. But the deeper reason is revealed in the opening episode when Schmidt (Scheuer) convinces his political masters to send Tomahawk cruise missiles into an Afghan town with a specialization in tanning leather because Scheuer had evidence that Osama bin Laden was holding a meeting there. (In actual history, one target was a pharmaceutical factory in Sudan and not a tannery; the town shelled from above where bin Laden was believed to be meeting with his terrorist cohorts was a separate target in Afghanistan.)

However, bin Laden had already left. In the docudrama, the town was destroyed; hundreds of innocent women and children were killed. In actual history, on 20 August 1998, the military action against the town was undoubtedly a war crime: 1) because the US lacked actionable intelligence, intelligence that Osama bin Laden was in the town at the time of the attack, and 2) because the attack was so disproportionate to the need to eliminate those allegedly behind the attack on the US embassy in Nairobi on 7 August. (There was also an attack on the Tanzanian US embassy in Dar es Salam, but this was not part of the film series.]

But absolute proof was unnecessary as far as the head of the CIA branch was concerned. Nor was the protection of foreign civilians part of Scheuer’s mandate as he testified before the U.S. Commission of Inquiry. H did not believe that he was bound by international legal norms. The docudrama ended where it began [viewer alert], with the anticipation of another and much larger war crime, the military aggression against Saddam Hussein and Iraq because of the fraudulent accusations that the regime had weapons of mass destruction. As Donald Rumsfeld instructed the CIA, he wanted the agents to find evidence that incriminated Saddam Hussein in the 9/11 attack and that tied him to Al Qaeda, though it was widely known that Saddam Hussein and Al Qaeda were totally at odds.  

In the past, the U.S. had taken a law enforcement stance to terrorist attacks: the FBI attempts to uncover who was responsible and bring them to trial in the US. The attacks on the US embassies, however, were deemed acts of war against the US. The advisory group discussed a military response; it was recommended that the US attack bin Laden’s network and attempt to destroy his base of operations.   The advisors had a list of potential targets that had been developed by the CIA over many months of investigating bin Laden and his terrorist network, The “firm” eventually decided on two sites: 1) the camps in Afghanistan which they believed would be the site of a large meeting of terrorist leaders later that month; and

2) a pharmaceutical factory in the Sudan where they believed bin Laden’s network had been producing chemical weapons.

As early as 13 August – five days after the embassy bombings – foreign policy advisers (National Security Adviser Sandy Berger, Secretary of State Madeleine Albright; Secretary of Defense William Cohen; Director of the CIA George Tenet; Chairman of the Joint Chiefs of Staff General Henry Shelton; and a high-ranking staff member, counter-terrorism czar, Dick Clarke) met with President Bill Clinton to advise that bin Laden and al Qaeda had been behind the embassy bombing. Most of them are portrayed in the film series.

On 20 August 1998, the US attempted to retaliate. That is when the Tomahawk cruise missiles destroyed the Afghan town. The responsibility for war crimes went right to the top. The criminality begun in 1998 came full circle under the Bush administration. When the CIA doubled the size of its counter-terrorism unit targeting bin Laden and put Martin Schmidt back in charge, he was also instructed by Don Rumsfeld to make sure that the evidence he turned up was tied to the Saddam Hussein regime in Iraq, even though it was widely known already that, as bad a guy as Saddam Hussein was, he had nothing to do with Al Qaeda.

The Looming Tower TV series goes beyond depicting what happened but, more compellingly, asks who saw it coming. Both agencies did, but the CIA did not share its information with the FBI because that would have only meant bringing the few perpetrators to justice when Schmidt believed all out war was required, what Bush later dubbed the War on Terror. But it is hard to win a war when your two main intelligence agencies are themselves at war. The interagency discord resulted in unheeded warnings.

There is one point in the series, in the third episode I believe, where Bill Camp as the FBI agent, Robert Chesney, brilliantly interrogates the perpetrator of the US embassy bombing in Nairobi. This provided the tie to al Qaeda that resulted in Operation Infinite Reach and the Americans’ controversial, retaliatory strikes in Khost and Khartoum. But that was a betrayal of Chesney’s work, the intention of which was to bring the perpetrators to justice before a US court. Rahim much later used his own interrogation techniques that were both empathetic but also intrepid (no torture again) to get an al Qaeda suspect to reveal crucial information on the hijacking of the planes and crashing them into symbolic icons of America.

The series is a tale of interagency squabbles and suspicions leading to critical oversights. This gripping counter-terrorism docudrama is made more powerful by ts roots in real historic events and by brilliant acting, not only by those mentioned above, but the main FBI boss, John O’Neill played superbly by Jeff Daniels, and Schmidt’s female hard-nosed sidekick, Diane Marsh, played ironically by Wrenn Schmidt.

The movie series suggests the politicians were even worse than the agents and senior officials in gumming up the works. For example, in the film Condaleesa Rice, Bush’s security adviser, when asked by the Commission of Inquiry why the government failed to anticipate what was happening, especially when Saudis arrived from the Middle East to take flight training but with little interest in learning to land a plane. Rice replied, “no one would have thought that someone would do that.” Of course, that simply stirs a response in the listener’s head, “Why would they think of that if they did not examine the evidence readily available to them?

Tomorrow, I want to review another docudrama, a legal one this time dealing with counter-terrorism, called The Mauritian in which the pursuit of justice is again displaced, this time by torturing an Arabic-speaking a prisoner who was held without charge in Guantanamo Bay for 14 years with not an ounce of solid evidence that he was a terrorist, though the American military finally did torture a confession out of him. Disproportionate bombing based on intelligence that was not actionable was not the only war crime committed by the US. Torture, holding a person without charge outside the jurisdiction of the American legal system, was also practiced. I will review The Mauritian next.

Part I: The International Criminal Court (ICC) and the International Atomic Energy Agency (IAEA)

Given last week’s focus on Iran, it might be insightful to view the problems of establishing war crimes by the International Criminal Court (ICC) in parallel to the attempts of the International Atomic Energy Agency (IAEA) to uncover and examine efforts to get around the nuclear non-proliferation regulations of the agency. After all, comparisons have long been considered one of the best recipes for gaining insights and knowledge. The role of the comparison is not to use one entity to assess the other, but rather to bring forth characteristics that otherwise might go unnoticed.

The IAEA has slipped in news coverage with the downgrading in importance of the Iran nuclear deal by the Biden foreign policy agenda. In headlines, coverage of the JCPOA (Joint Comprehensive Plan of Action) dealing with Iran’s nuclear program were initially replaced by stories on and controversies over the International Criminal Court (ICC). The core issue for the IAEA has been the comprehensiveness and thoroughness of its monitoring and inspections functions specifically of Iran’s behaviour. The ICC is a court of last resort that is intended to complement, not replace, national Courts and is governed by an international treaty, the Rome Statute,

The ICC investigates and, where warranted, tries individuals charged with war crimes, crimes against humanity, genocide and the crime of aggression. The IAEA investigates failures by countries to observe the nuclear non-proliferation treaty. The ICC as the world’s first permanent international criminal court. has a world-wide mandate to focus on investigations to determine what happened and by whom with respect to charges of war crimes, crimes against humanity, genocide and aggression, but, most importantly, has a judicial function as well. The ICC determines individual cases of guilt or innocence, metes out and imposes penalties.  

The IAEA recently took soil at three sites in Iran that had shown traces of man-made uranium, an indication that illicit atomic weapons research had taken place at those sites. In contrast, it is virtually impossible for the ICC to gather forensic evidence from a site to determine whether a crime took place, though it certainly does so when illegal weapons, such as phosphorous gas bombs are used. It does interview witnesses, but it is difficult to consider them unbiased, a difficulty the IAEA faces except when examining expert witnesses. The IAEA often now has video evidence as well as witness testimony, but as every defense attorney and watcher of Law and Order knows, those two sources of evidence are themselves suspect.

At the same time, if the IAEA is faced with a country like Iran which allegedly deliberately razed buildings and removed equipment in an effort to sanitize suspect sites, what kind of cover-ups can the ICC suspect from countries in which its citizens/members are accused of war crimes? Rafael Grossi (IAEA’s director-general): “After 18 months, Iran has not provided the necessary, full and technically credible explanation for the presence of these particles.” Can and does the ICC claim that the country from which persons come who are suspected of war crimes failed to provide “the necessary, full and technically credible explanation” for the action taken? This seems to be an important difference.

Dissembling and white-washing have been patterns of behaviour for Iran. Have they also been for Israel, the Hamas regime in Gaza and the Palestinian Authority (PA)? The IAEA puts international pressure on the US and other world powers to strengthen the inspection regime under the JCPOA. Negative results can culminate, not in criminal prosecution or jail, but in economic sanctions and war. In the case of the IAEA, the complement to inspections are diplomatic negotiations. Will Biden slip away from his determination to stress diplomatic engagement and resurrect Trump’s policy of maximum economic and diplomatic pressure and even introduce military pressure? In comparison, what are the international political implications of the ICC?

If the IAEA has met resistance from Tehran cooperating and even refusing to provide a full accounting of its nuclear materials and equipment, what kind of resistance can the ICC expect from Jerusalem, Ramallah and Gaza, even though the PA and the Gaza regime have promised to fully cooperate with the ICC? Unlike Iran, as a signatory to the nuclear non-proliferation treaty which accepts the jurisdiction of the IAEA, Jerusalem has not signed up to be a member of the ICC and denies the ICC has jurisdiction. Israel, unlike Iran, therefor, has different grounds for refusing cooperation. Tehran is by international law fully accountable to the IAEA. There is a serious question whether Jerusalem is accountable in any similar way to the ICC.

If Iran is found to be in breach of the rules governing the non-proliferation of nuclear weapons or even just its obligations to be accountable, that necessarily creates a full-blown crisis for the UN Security Council. The ICC, in contrast, does not hold countries to be responsible for war crimes or crimes against humanity, but only individuals. The presumption is that individuals, not states, are responsible, and will be charged, not with political deviance, but with actual crimes and be subject to prison terms. Yet it is the state or a political authority that determines cooperation, not individuals. Non-compliance with the ICC creates a political crisis, but less for the international political order and more for the effort to establish the rule of law internationally.

That is an irony, Where state behaviour is not on trial, but should be (as in war crimes), the crisis is legal; individuals, not the state, are prosecuted. Where state behaviour is on trial (in abuses of the nuclear non-proliferation treaty), the crisis becomes political not legal. Yet it is the political that drives the investigations of the ICC much more than the investigations of the IAEA which tend to be matters of technical evidence, suggesting misbehaviour rather than criminal activity. In addition to whether states or individuals are the subjects for examination, the different types of evidence to be gathered and the political implications of each investigation on a global level, there is also a difference between modes of covering-up non-compliance.

Iran tries to scrub the evidence from existence and then acts to put severe limits on the investigators. Tehran informed the IAEA last month that it will limit the ability of its inspectors to visit suspect sites and facilities even more than before. At what risk? The European powers – more specifically France, Germany, Great Britain – threaten to censure Iran. However, in the case of Israel, a country which has its own system of investigating war crimes, crimes against humanity and genocide, the issue then is whether its own investigations are conducted properly and thoroughly and whether the actions revealed are being measured by international laws, rules and standards.

There is another difference between the IAEA and the ICC that is procedural. The IAEA follows the tradition of English-speaking countries of separating the policing and investigative functions from the judicial ones, or, at least, their equivalent in the political arena. In contrast, the ICC is responsible for determining what situations should be investigated, for establishing evidence and for determining whether there is enough evidence to warrant prosecution and then proceeding with a prosecution if it deems one is warranted.  

Clearly in each case, the issue is the degree to which the agency can trust the country being investigated or the government investigating individuals accused of a crime. Of course, if a regime proves to be untrustworthy in the information it puts forth to the IAEA, then there is no doubt that such a country cannot be trusted to have nuclear weapons or to even have the capability of producing such weapons. There is not nearly so much at risk if a government’s system to investigate and try war crimes is inadequate. A program can be launched to improve the justice system in this regard. Clearly, this depends on the degree of seriousness of the crime, the degree the standards being used conform to international standards and whether the country implementing such laws is sincere.

In the IAEA case, the investigators search for and may find evidence to reinforce or undermine distrust. In the ICC case, it is only when the ICC already distrusts the state system of justice that the ICC steps in. Yet there is no investigative process for making such an assessment. Rather, the decision to investigate and conduct trials is usually driven by political factors. Clearly, past behaviour or misbehaviour is a clue to current behaviour. Yet there is no system of undertaking detached and objective historical studies by the ICC. In the case of the IAEA, Iran’s past record of deceit and efforts at nuclear weaponization were studied and, further, had to be resolved as a condition of the JCPOA going into effect. Iran was required to provide the IAEA access to documents, scientists, and military sites related, or possibly related, to any covert weaponization work. In other words, history is at the heart of the IAEA inquiry, but scholarly or scientific historical studies are absent from the ICC one.

However, history itself can be a form of coverup. The IAEA Report in 2015 found no evidence, at least, no credible evidence, supporting any claim that Iran was involved in a program of weaponization of nuclear material after 2015. However, there were reasons it found no evidence. Iran denied the IAEA investigators access to the relevant scientists. Any documents that were suspected of providing evidence for such a program were denounced as forgeries. And even when the evidence was unequivocal, such as the detection of nuclear material at the Parchin site, Iran bold-facedly insisted that it must have come from their conventional military program but without offering a credible account of how that could happen.

However, past sins may create suspicion of present sins. But such a record is not proof. The IAEA has to provide evidence that is current. However, in the case of the ICC, the evidence is not about a continuing program, but about a specific incident in the past. Thus, although past behaviour and history of the country’s behaviour is not the focus, the investigation is all about past behaviour.

What does an investigative agency do when the evidence uncovered is insufficient to conclude without a doubt that Iran is in breach of non-proliferation protocols? Does the agency disregard the evidence it does have? Or accept the reality that Iran is a dissembler? Or double down on future investigations? Or all of the above? The choices are very different in the case of an ICC investigation, for there must be a finding of guilt or innocence, innocence meaning that there is insufficient evidence to establish the guilt of the individual being tried. In other words, the ICC must arrive at a definitive conclusion. The IAEA need not do so. Assessing degrees of responsibility is part of its accountability exercise rather than stark either/or judgments. On the other hand, judicial proceedings are far less dangerous than military reprisals.

I just finished watching the ten-part series, The Looming Tower on Prime Time based on the 9/11 inquiry. In addition to its reference to the gold star of investigations, the docudrama brought together the two themes of this comparison, the comparison of the judicial approach of the ICC and the sanctions and military implications of the reports of the IAEC by examining the roles of the FBI as a criminal investigating agency in comparison to those of the CIA focused on political issues and their implications for reprisals and war..

In the docudrama, the FBI took the juridical approach. The CIA, that seemed to regard the FBI as a greater enemy than bin Laden, took the military route. A more detailed review of the ten-part series is warranted to clarify the two approaches.

Tomorrow: The Looming Tower: a movie review