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Deserve’s Got Nothin’ to Do with It — A response to critiques of my views on U.S. sanctions and the ICC

Advanced Vocabulary for English Language Learners: To get an earful Wow did I get an earful after my post on sanctions against the ICC! And in many cases it came from those I hold in the highest esteem. As expected, most of the criticism directed at my post was steeped more in emotion than in cold, fact-based logic or a sober assessment of geopolitical reality. That’s not a criticism in itself — emotion has its place, especially when discussing justice and law. But emotion, however righteous, cannot override structural power dynamics.

I genuinely commend those who, in Churchillian fashion, continue to defend the ICC, international criminal justice, judicial independence, and the integrity of the Prosecutor. I agree with those values. I said so in my previous post — if read without the haze of moral indignation and with a modicum of intellectual generosity. Perhaps I wasn’t explicit enough. Perhaps I was too restrained in my use of adjectives and adverbs. Perhaps I didn’t indulge in enough rhetorical fire to pass the purity test of those whose compass points only to the ideal. Perhaps. But I think not. Continue reading “Deserve’s Got Nothin’ to Do with It — A response to critiques of my views on U.S. sanctions and the ICC”

SANCTIONS AS STIMULATIVE MEASURES: a sovereign prerogative untethered from moral discernment

Little Bill Daggett: I don’t deserve this… to die like this. I was building a house.

Bill Munny: Deserve’s got nothin’ to do with it.

Little Bill Daggett: I’ll see you in hell, William Munny.

Bill Munny: Yeah.

Unforgiven (1992)[/otw_shortcode_quote]

It is what it is. Don’t shoot the messenger.

Bending another state or institution (such as the International Criminal Court (ICC)) to the will of a more powerful sanctioning state may be distasteful, distressing, disadvantageous (depending on the side of the cause for the sanctions one is aligned with) but the harsh reality is that the use of sanctions is a sovereign prerogative. The sooner this reality is accepted and embraced, the sooner the sanctioned state or institution, along with their cast of supporting states, international and regional organizations, civil society, concerned global citizens can accept the need to explore realizable off-ramps or condition themselves to endure the consequences of the sanctions.

Why it is what it is

Reality is harsh. Powerful and well-positioned states resort to sanctions when it suits their interests. Imposing them may leave a might makes right stench in the nostrils, but it is what it is. Getting emotional, crying foul, engaging in hyperbolic condemnations, calling out the hypocritical and inconsistent use of sanctions against foes for conduct and causes that the sanctioning state engages in or tolerates and even supports when friends and allies do likewise, is not a strategy. It is a reaction. Continue reading “SANCTIONS AS STIMULATIVE MEASURES: a sovereign prerogative untethered from moral discernment”

ALLEGATIONS OF SERIAL SEXUAL ASSAULT REVEALED: ICC Prosecutor Khan should step aside while the investigation is pending

He always holds on to me and leads me to the bed. It’s the feeling of being trapped. People have told me to stand up against this man, yet everyone, including elected officials, seem to be very scared of him and says there is nothing we can do [about making him step aside] because he refuses.

Prosecutor Karim A. A. Khan’s accuser, as quoted in the WSJ

In my last post, I warned of the International Criminal Court’s (ICC) self-inflicted quandary: being at a credibility and sustainability crossroads. I referred to two imminent tests. The first test dealt with jurisdiction in the Rodrigo Duterte case. With some Judges/Chambers indulging enthusiastically in creative judicial activism on jurisdictional issues in general, I warned that reversing course will take judicial courage and restraint. Both are in short supply if past is prologue. The second test dealt with the Khan affair.

For months it had been reported that ICC Prosecutor Karim A.A. Khan was accused by his female assistant of sexual harassment, and that with the help of others, he obstructed the investigation by intimidating witnesses or pressuring them to recant. I warned against dragging out the investigation or sweeping the matter under the proverbial rug. When I posted, Khan had yet to be interviewed. Optically, the process seemed as quick as a snail and as transparent as my grandmother’s thick velvety-green pea soup. Then last week it was reported in the conservative but respected US newspaper, The Wall Street Journal (WSJ), that Khan had finally been interviewed. The article is a bombshell. What was initially reported as alleged sexual harassment is much more serious. As reported in the WSJ, the lurid details of what the accuser is claimed to have stated when interviewed as part of the investigative process into her allegations, amount to Khan sexually assaulting her on multiple occasions in multiple locations, including in the residence of Khan’s wife in The Hague, where Khan resides.

Presumption of innocence and due process aside, has the time come for Khan to take a leave of absence from his position at the ICC while this sordid saga runs its procedural course? I think so; probably long overdue. Continue reading “ALLEGATIONS OF SERIAL SEXUAL ASSAULT REVEALED: ICC Prosecutor Khan should step aside while the investigation is pending”

THE ICC’s SELF-INFLICTED QUANDARY: stick to the terms of the treaty, avoid judicial activism and jurisdictional overreach, and reign in hubristic impulses, or wither from abandonment, irrelevancy and disrepute

Wherever law ends, tyranny begins.

John Locke

The last couple of weeks have been particularly disquieting for the International Criminal Court (ICC). Prime Minister of Hungary, Victor Orbán, not only hosted Israeli Prime Minister Benjamin Netanyahu (who is subject to an ICC arrest warrant) but also announced his intent to withdraw Hungary from the ICC. Then came the news that Belgium would not comply with its ICC obligation to arrest Netanyahu were he to visit. And then came the Reuters news “exclusive” on the ongoing investigation of ICC Prosecutor Karim A.A. Khan KC for sexual harassment, obstruction of justice, and intimidation of witnesses. Old news, but if any of the reported damning details are proven, Mr. Khan will have disgraced himself and the Office of the Prosecution (OTP). More on this below. Continue reading “THE ICC’s SELF-INFLICTED QUANDARY: stick to the terms of the treaty, avoid judicial activism and jurisdictional overreach, and reign in hubristic impulses, or wither from abandonment, irrelevancy and disrepute”

The Trump-Netanyahu Madagascar Plan: exhorting ethnic cleansing with slow-burning genocidal consequences for the Gazan (and conceivably West Bank) Palestinians

To understand genocide as a class of calculated crimes, such crimes must be appreciated as goal-oriented acts from the point of view of perpetrators: genocide is rationally instrumental in their ends.

Helen Fein, Accounting For Genocide: National Responses and Jewish Victimization During the Holocaust (p.8)

Unfathomable that US President Donald J. Trump – surrounded by well-educated, well-informed, well-positioned Jewish advisors and insiders in his administration such as White House Deputy Chief of Staff Stephen Miller, Special Envoy to the Middle East Steve Witkoff, nominee Secretary of Commerce Howard Lutnick, and son-in-law / advisor Jared Kushner, to name but a few – would be ignorant of the historical parallels between his policy goals for the Palestinians and Nazi Germany’s infamous Madagascar Plan for the Jews. Continue reading “The Trump-Netanyahu Madagascar Plan: exhorting ethnic cleansing with slow-burning genocidal consequences for the Gazan (and conceivably West Bank) Palestinians”

SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results

In international criminal justice, which prioritizes the prosecution of fewer but more extreme crimes in countries often devastated by internal armed conflict and political breakdown, procedure’s demonstrative role in reestablishing the rule of law is particularly significant. Yet, regardless of the context, the sine qua non of criminal procedure is to make possible a fair adjudication of facts and principled determination of the guilt or innocence of accused persons. If procedure fails in that elemental task, it undermines not only ICL’s core aim of assigning individual criminal responsibility, but also its broader goals, such as promoting peace and stability in affected countries and regions.

Johnathan Hafetz, Punishing Atrocities Through a Fair Trial

I see more clearly than ever before that even our troubles spring from something that is admirable and sound as it is dangerous—from our impatience to better the lot of our fellows.

Karl Popper, The Open Society and Its Enemies

In national criminal justice, which seeks to address the crimes of all offenders rather than the few most responsible, criminal procedure is equally the sine qua non for ensuring a fair adjudication of facts and determination of individual criminal responsibility. Procedural fairness enhances the acceptance of the results, which in turn enhances confidence in the rule of law, thus promoting peace and stability. Getting the procedure right is essential. But there are a host of challenges that must also be resolved before trials can be held. Hence why Karl Popper’s refrain on impatience despite good intentions should be heeded. Designing a comprehensive and holistic rule of law blueprint tailored to Syria should be at the top of the transitional justice list.

Syria may be free of the Bashar al-Assad regime, but it risks becoming another failed state like Libya – fragmented, chaotic, conflict-ridden, unstable, and unsafe. Toppling al-Assad (given the serendipity of circumstances) may prove to be easier than establishing and maintaining peace and freedom, pursuing justice and accountability, and forming a free, democratic, inclusive, tolerant, and independent Syria. The dramatic psychological lift brought about by the ousting of the al-Assad regime must be quickly built upon, so the perception of progress is not lost. Continue reading “SYRIA MUST FIRST ESTABLISH RULE OF LAW: Avoid expedient justice and accountability measures that produce expeditious but unreliable and insupportable results”

PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move

Comply now, don’t complain later.

ICC Prosecutor Karim A. A. Khan KC

It came as no surprise. Yet surprised many were. After being “warned” by US Senator Tom Cotton et al. of the consequences that would follow were the ICC Office of the Prosecutor to seek arrest warrants against Benjamin Netanyahu and other top Israeli Government and military officials, Prosecutor Karim A. A. Khan KC lowered the boom and went ahead anyway. Yesterday, he submitted applications for arrest warrants against Israeli Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant as well as Hamas Head Yahya Sinwar, Commander-in-Chief of the Al-Qassam Brigades Mohammed Diab Ibrahim Al-Masri, and Head of Hamas Political Bureau Ismail Haniyeh.

Was it a response to Cotton’s silly and school-yard bully / Dirty Harryish “Go ahead, make my day” threat? Or is it more like “a tailgate done dropped”, to borrow Charlie Crocker’s aphorism in A Man in Full? Conspiracy theorists will try to read things into the timing of this high-risk maneuver by Khan. I’ve already heard a few – some plausible, some farfetched. Continue reading “PRIME TAKEAWAY ON ICC PROSECUTOR KHAN SEEKING GAZA RELATED ARREST WARRANTS: a bold, calculated, and inevitable move”

RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations

There is nothing more distorted than attempting to prevent Israel from defending itself against a murderous enemy openly calling for the destruction of the state of Israel. If the warrants are issued, they will harm the commanders and soldiers of the IDF and provide a morale boost to the terrorist organisation Hamas and the axis of radical Islam led by Iran against which we are fighting.

Israel Katz, Israel’s Foreign Minister

Such a lawless action by the ICC would directly undermine US national security interests. If unchallenged by the Biden administration, the ICC could create and assume unprecedented power to issue arrest warrants against American political leaders, American diplomats, and American military personnel, thereby endangering our country’s sovereign authority.

Mike Johnson, Speaker of US House of Representatives

We’ve been really clear about the ICC investigation. We don’t support it; we don’t believe that they have the jurisdiction.

Karine Jean-Pierre, White House spokesperson

It would be a fatal blow to the judicial and moral standing of ICC to pursue this path against Israel.

John Fetterman, US Senator

The fact that innocent civilians are trapped under the weight of a war they cannot escape and which is not their fault is not tenable.

Karim Khan KC, ICC Prosecutor

The above quotes are from The Guardian. A mere sampling. Aside from the obvious hypocrisy of US President Biden and his administration of supporting the International Criminal Court (ICC) when it comes to investigating alleged Russian atrocities in Ukraine while not recognizing the ICC’s jurisdiction to investigate and prosecute crimes alleged to have been committed by Israeli officials and the Israel Defense Forces (IDF), these quotes are as illuminating as they are alarming.

Auditions for RUMORS — Tacoma Little Theatre Rumors abound. Potential arrest warrants for Prime Minister Benjamin Netanyahu, Defense Minister Yoav Gallant, and IDF chief of staff Herzi Halevi may be in the offing. According to Axios, Netanyahu has asked US President Biden to intervene. Netanyahu wants the US to assist in preventing the ICC from exercising its jurisdiction and carrying out its mandate – to prevent arrest warrants from being issued against senior Israeli officials and IDF members in connection with the war in Gaza. Continue reading “RUMORS OF PENDING ICC ARREST WARRANTS FOR ISRAEL AND HAMAS OFFICIALS: Conflating self-defence with accountability for crimes, and why “in the interests of justice” (in)action is a viable non-interfering option to the ongoing negotiations “

MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER

Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claims by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order).

Judge Georg Nolte, Declaration (para. 15)

The celebrated French existentialist philosopher Jean-Paul Sartre is credited with having coined the incisive aphorism “Words are loaded pistols”. Like weapons, when hitting the intended target, words have the capacity to affect opinions and behavior. And like bullets, once they leave the chamber, once uttered and heard by the intended audience, they are irretrievable. Yes, they can be retracted and repackaged and recalibrated, followed by a contrite mea culpa or transparently trite excuse, but effectively the desired effect in uttering the words in the first place remains. Ominously, when words are uttered – intentionally, recklessly, or carelessly – by high-level officials and respected members of a community and revered military officers (whether active or retired), the potential to inspire, induce, and incite to act in a desired fashioned is rather high. Unintended interpretations of words can also lead to unintended greenlighting of impermissible actions, not to mention unavoidable implied impressions generally formed from actions followed from words. Continue reading “MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER”

SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)

South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and buildings dedicated to religion, education, art, science, historic monuments, hospitals, and places where the sick and wounded are collected; torture; the starvation of civilians as a method of warfare; and other war crimes and crimes against humanity — though there is often a close connection between all such acts. South Africa is also aware that acts of genocide inevitably form part of a continuum — as Raphael Lemkin who coined the term ‘genocide’ himself recognised. For this reason it is important to place the acts of genocide in the broader context of Israel’s conduct towards Palestinians during its 75-year-long apartheid, its 56-yearlong belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated there,,,with, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity. However, when referring in this Application to acts and omissions by Israel which are capable of amounting to other violations of international law, South Africa’s case is that those acts and omissions are genocidal in character, as they are committed with the requisite specific intent (dolus specialis) to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.

Application Instituting Proceedings (para. 2).

Relying on the Genocide Convention, South Africa in its Application Instituting Proceedings (SA Application) to the International Court of Justice (ICJ) seeks a finding of the existence of genocidal intent, and injunctive relief as provisional measures – an order requiring Israel to cease or limit its military operations in Gaza. I expected a cogent, balanced, and persuasive submission – to perhaps even be convinced since I’ve not seen evidence from which to conclude the existence of the requisite dolus specialis (genocidal intent). Disappointingly, the SA Application ignores or glosses over critical context as it relates to Israel’s right of self-defense – relevant to objectively assessing the SA Application. The legal analysis is also less than impressive. Suffice it to say, the facts as marshalled, and the arguments as crafted in the SA Application have not nudged me one iota towards the more vocal and ostensibly conformist assessment. I remain unmoved that a genocide, strictly in the legal sense, is ongoing in Gaza, just as I remain unpersuaded that the ICJ can order provisional measures which may infringe on Israel’s right of self-defense. Hence this post. Continue reading “SOUTH AFRICA’S ICJ APPLICATION: A convincing genocide claim or a compelling off-ramp for Israel (and cautionary refrain for the US)”