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The US President is authorised to invade The Hague if any Israeli is held by the ICC

May 23, 2024 at 8:13 am

US President Joe Biden delivers remarks at a Cinco de Mayo reception at the White House in Washington D.C., United States on May 6, 2024 [Celal Güneş – Anadolu Agency]

On Monday, 20 May, the Prosecutor of the International Criminal Court (ICC), Karim Khan, announced that his office is seeking arrest warrants for Benjamin Netanyahu and Defence Minister, Yoav Gallant, triggering a fierce competition among the American Republican law makers. Almost all of them went to work in drafting the best, strictest and most bullying bill to intimidate and frighten the ICC and its judges to, hopefully, force them to eject the requests and refrain from issuing the requested warrants. Legally speaking, the warrants are coming and the pre-trial chamber’s consideration of them is only a technicality.

The competition inside the US House has gained increased ferocity by the Democratic Biden Administration when Secretary of State, Antony Blinken told a congressional panel that he is committed to punish the ICC for the “profoundly wrong-headed decision” for even considering the matter of indicting the Israeli officials.

This is America, the land of the free, law and order and the model to the rest of the world when it comes to upholding the law and applying it equally to everyone. It would have been very understandable had such a draconian threat come from some third world country in some forgotten corner of the world. But to come from a superpower is scandalous and pathetic.

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The US President has already expressed his “outrage” at the ICC at the audacious, so far at least, Karim Khan, questioning not only his judgement behind requesting the warrants but also, implicitly, questioning his daringness in comparing Hamas to “democratic” Israel. The Gaza genocide has, repeatedly, shown that there is no such thing as US Middle East policy. Instead, there is Israeli policy and the US officials and lawmakers will only do what pleases Tel Aviv, even if that means damaging the US’s own interests.

But hold on. America has already sanctioned the ICC and its staff. It has already passed a law boycotting the ICC and criminalising any US citizen or institution that might, even by mistake, help the world’s only criminal Court. Yet, its elected officials want more of the same thing.

First and foremost, the US, which is supposed to be a role model to the rest of the world, does not recognise the ICC’s jurisdiction and never ratified its establishing Rome Statute. The US is rubbing shoulders with other ICC rejecters such as Sudan, North Korea, Syria and Russia, to name few—usually described by Washington as rogue states.

However, the US is the only country in the world to pass a law giving its president the power to use any means available, including invasion, air bombardment, blackmail and even kidnapping, if necessary, to stop the ICC from prosecuting any American soldier in the custody of the ICC accused of some crimes—and there are plenty of them who fit this category of criminals.

In July 2002, the US Congress passed what became known and The Hague Invasion Act. In July 2002 the Rome Statute, establishing the ICC, came into effect and the Court was created. At the same time, the US had invaded Afghanistan the previous October, where its soldiers committed hundreds of war crimes and crimes against humanity. In the background, Washington was already planning to invade Iraq, where its political and military personnel would commit even more criminal acts than they had already done in Afghanistan. Add to that the fact that WikiLeaks, an independent publisher, was causing big injuries to Washington’s reputation by hanging its dirty laundry for the world to see.

All these factors prompted US policy makers to react to limit any potential damage, particularly from the newly created ICC—the most threatening legal instrument reserved for individuals suspected of war crimes and crimes against humanity, where US military personnel are among the top potential suspects, given the range of wars their country sends them to fight around the globe.

Just a few weeks after the creation of the ICC, the US Congress passed what is officially known as American Service-Members’ Protection Act. While aiming to protect serving military and political appointees, the Act gives the president wide ranges of powers to achieve that goal. It authorises him to use any means available to “release” any detained or imprisoned person “by, on behalf of, or at the request” of the ICC.

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Clause b. of section 2008 of the Act defines what is called “covered persons” to include all US citizens acting for the US government and any individuals acting for any allied government, like NATO member states, for example.  However, section 2013 of the Act widens that definition to include what the Act calls a “major non-NATO ally” naming, as examples, Australia, Egypt, Israel, Japan, Jordan, Argentina, the Republic of Korea and New Zealand. All military personnel and government officials from these countries are eligible for US help against the ICC, upon request. They lose such assistance once their own countries join the Court.

Back in 2002, as a higher education student in The Netherlands, passing that Act into law created a huge debate across the country and the wider public, which immediately started referring to it as The Hague Invasion Act. Fearing that their country could be raided and their lovely city, The Hague, might be invaded because it is home to the ICC, the Dutch people could not comprehend how the US, a NATO ally, could actually even consider such an act, let alone making it a law.

On 3 August, 2002, then US President George W. Bush signed the Act into law, prompting Human Rights Watch, to call it Hague Invasion Act in its statement, criticising the laws and the President for signing it. Ever since, the phrase became synonymous for the notorious law and is being used to reference it even today.

The Act, in part, explains why many other countries still do not accept the jurisdiction of the ICC and refuse to cooperate with it. Such countries, particularly Israel, simply count on the protection of their bully ally, the US, if the Court ever dared to open investigation involving their political or military personnel. By giving itself the power to act to protect suspected war criminals of allied countries, the US is actually corrupting any world-wide potential for accountability that the world might even consider.

Israel, which never respected or observed any international jurisdiction, anyway, is not only empowered by this Act but also encouraged to threaten, smear and attempt to destroy the ICC and the UN itself which created it in the first place.

As long as The Hague Invasion Act is still in effect and the support of the US is widely available, Israel does not have any incentive to respect international law or institution it judges to be against its wider policy: Palestinian genocide.

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The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.