nuclear-news

After Undermining International Criminal Court, US Now Wants It to Charge Russians,  

Marjorie Cohn, Truthout,  17 Apr 22

Athough the United States has tried mightily to undermine the International Criminal Court (ICC) since it became operational in 2002, the U.S. government is now pushing for the ICC to prosecute Russian leaders for war crimes in Ukraine. Apparently, Washington thinks the ICC is reliable enough to try Russians but not to bring U.S. or Israeli officials to justice.

On March 15, the Senate unanimously passed S. Res 546, which “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces.”

When he introduced the resolution, Sen. Lindsey Graham (R-South Carolina) said, “This is a proper exercise of jurisdiction. This is what the court was created for.” The United States has refused to join the ICC and consistently tries to undercut the court. Yet a unanimous U.S. Senate voted to utilize the ICC in the Ukraine conflict.

Since February 24, when the Russian Federation launched an armed attack against Ukraine, horrific images of destruction have been ubiquitous. The Office of the UN High Commissioner for Human Rights has documented 3,455 civilian casualties, including 1,417 killed and 2,038 injured as of April 3. Most of those casualties have been caused by explosive weapons with a wide impact area, which includes heavy artillery and multiple launch systems as well as air and missile strikes.

On February 28, Karim Khan, chief prosecutor of the International Criminal Court, opened an investigation into the situation in Ukraine. He said that his preliminary examination found a reasonable basis to believe that alleged war crimes and crimes against humanity had been committed in Ukraine. Khan’s formal investigation will “also encompass any new alleged crimes . . . that are committed by any party to the conflict on any part of the territory of Ukraine.”

As I explained in prior Truthout columns, in spite of U.S.-led NATO’s provocation of Russia over the past several years, the Russian invasion of Ukraine constitutes illegal aggression.

Nevertheless, the ICC does not have jurisdiction to prosecute Russian leaders for the crime of aggression.

The ICC’s Rome Statute Prohibits Aggression

In 1946, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing,” adding that, “to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

U.S. Supreme Court Justice Robert Jackson, chief prosecutor at the Nuremberg Tribunal, called aggressive war “the greatest menace of our times.” Jackson said, “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”

Aggression is prohibited by the ICC’s Rome Statute. Article 8bis defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Adopting the central prohibition of the UN Charter against the use of aggressive force, Article 8bis defines an act of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The charter only allows the use of military force in self-defense or with the consent of the Security Council, neither of which happened before Russia invaded Ukraine.

In order to secure a conviction for aggression, the prosecutor of the ICC must prove that a leader who exercised control over the military or political apparatus of a country ordered an armed attack against another country. An armed attack can include bombing or attacking the armed forces of other country. The attack must be a “manifest” violation of the UN Charter in its character, scale and gravity, which includes only the most serious forms of the illegal use of force. For example, a single gunshot would not qualify but George W. Bush’s illegal invasion of Iraq would………………………………………….

When he introduced the resolution, Sen. Lindsey Graham (R-South Carolina) said, “This is a proper exercise of jurisdiction. This is what the court was created for.” The United States has refused to join the ICC and consistently tries to undercut the court. Yet a unanimous U.S. Senate voted to utilize the ICC in the Ukraine conflict.

Since February 24, when the Russian Federation launched an armed attack against Ukraine, horrific images of destruction have been ubiquitous. The Office of the UN High Commissioner for Human Rights has documented 3,455 civilian casualties, including 1,417 killed and 2,038 injured as of April 3. Most of those casualties have been caused by explosive weapons with a wide impact area, which includes heavy artillery and multiple launch systems as well as air and missile strikes.

On February 28, Karim Khan, chief prosecutor of the International Criminal Court, opened an investigation into the situation in Ukraine. He said that his preliminary examination found a reasonable basis to believe that alleged war crimes and crimes against humanity had been committed in Ukraine. Khan’s formal investigation will “also encompass any new alleged crimes . . . that are committed by any party to the conflict on any part of the territory of Ukraine.”

As I explained in prior Truthout columns, in spite of U.S.-led NATO’s provocation of Russia over the past several years, the Russian invasion of Ukraine constitutes illegal aggression.

Nevertheless, the ICC does not have jurisdiction to prosecute Russian leaders for the crime of aggression……………….

“So, the U.S. wants to help the International Criminal Court prosecute Russian war crimes while barring any possibility the ICC could probe U.S. (or Israeli) war crimes,” observed Reed Brody, a commissioner for the International Commission of Jurists, an international human rights nongovernmental organization.

U.S. hypocrisy is no more apparent than in the first “Whereas” clause of the Senate’s unanimous resolution condemning Russia. It says, “Whereas the United States of America is a beacon for the values of freedom, democracy, and human rights across the globe . . .”

One hundred members of the U.S. Senate affirmed that sentiment in spite of the U.S. wars of aggression in Kosovo, Iraq and Afghanistan, and the commission of U.S war crimes. If the senators truly believe that the ICC is dependable enough to prosecute Russian leaders, they should push Biden to send the Rome Statute to them for advice and consent to ratification. What’s good for the Russian goose should also be good for the U.S. gander.  https://truthout.org/articles/after-undermining-international-criminal-court-us-wants-it-to-charge-russians/?eType=EmailBlastContent&eId=1f951de0-ce82-4df9-b85e-0a76f6faf974

April 18, 2022 Posted by Christina Macpherson | Legal, USA | Leave a comment

No chance of a fair trial for Julian Assange in America

Daniel Ellsberg: “It is outrageous that Biden has continued to pursue Julian Assange’s prosecution”, il Fatto Quotidiano, 23v Mar 22,

”……………………………………………..  Julian Assange was charged with Espionage Act violations. Did you expect that the United States, for the first time in its history, would charge a journalist for publishing truthful information in the public interest?

DANIEL ELLSBERG. The lawyers who were following this at the American Civil Liberties Union (ACLU), were predicting that Donald Trump would prosecute journalists. No president had done that yet, it’s a blatant violation of the First Amendment. It’s obviously unconstitutional, which of course doesn’t slow down Trump, and it is outrageous that Biden has continued to pursue that prosecution. He should have withdrawn the appeal Trump made for extradition of Julian, for prosecution. Biden could just drop it any time, he could do it the next hour. It was very arguably unconstitutional even in my case: I was the first to be indicted under those charges, for leaking, but I had been a former official. I was a source, not a journalist – they don’t regard sources as journalists. You could argue either side in my case, as to whether it was constitutional. In Julian’s [case] there is no argument on the other side: it’s obviously unconstitutional, in America, under our First Amendment. Obama had considered indicting Julian, but had backed off for that very reason, that if they went after Julian on those grounds, they would have no excuse for not going after the New York Times. And they didn’t want to take that on, in part because the New York Times is extremely useful to them, to successive administrations. It basically supports the empire, and doesn’t object to endless amounts of money for so-called defense. It’s a very useful outlet for them, even though it occasionally prints things they would rather not have out.

Why do you think the Biden administration doesn’t drop the case?

ELLSBERG. Biden, when he was vice president, at the very beginning, in 2010, called Julian Assange a high-tech terrorist, which is absurd. He is very much against leaks, and actually all presidents get very angry at leaks that they don’t want out, but they recoil from the prospect of clearly unconstitutional action. Trump didn’t, and Biden should have, but he hasn’t so far. It’s still not too late for him to correct that, but I don’t expect that he will. He shows so much animus toward Julian, that I don’t expect it. I don’t know why entirely, by the way. In general, in foreign policy, he has not shown anything progressive or favorable. In domestic policy, in many ways he has acted better than almost anyone expected, but on foreign policy, there is nothing to be said for him: it’s the same as Obama’s, which was not good, and pretty much the same as Trump’s.

According to Yahoo! News, the CIA tried to poison Julian Assange or kidnap him. If the United States can extradite him, do you expect a fair trial?

ELLSBERG. A fair trial? Oh, there’s no chance for him to have a fair trial, any more than any of the other people charged and convicted under the Espionage Act, or even me. I am the only one who, in a way, ‘got away with it’, in the sense of not being put in prison for life or for a long time by the administration, and that was because of a very unusual set of events, but they’re the same as we’ve learned about Julian. Just as they were considering kidnapping him from the Ecuadorian embassy, possibly killing him, possibly poisoning, but also even considering shoot-outs of various kinds that would get him, I [too] had thirteen men, twelve or thirteen, brought from Miami, CIA assets, one of them at least a CIA agent right at that time, but they had all worked for the CIA in the Bay of Pigs. They were brought up with orders to ‘incapacitate Daniel Ellsberg, totally’. When I asked the prosecutor: ‘What did that mean? Kill me?’, he said: ‘Well, the words were ‘incapacitate you totally’, but you know, those who work for the CIA never use the word ‘kill’. But they were killers, those people had been involved in efforts to assassinate Castro, and even Trujillo. They didn’t [kill me]. Again, I escaped that fate, because at the last moment they thought they were being set up to be caught, so I was lucky, over and over again. None of the other people indicted have been lucky, they all have been convicted essentially, in many cases by plea bargains, because they have been threatened with much greater sentences. Life [sentences] for treason or espionage, and they have accepted smaller charges, but that still kept them in prison for years, in many cases……………

So you think there is no chance at all of a fair trial for Julian Assange…

ELLSBERG. Because under the Espionage Act, the defendant has no chance to tell the Jury why they did what they did, or what they were hoping to achieve, what the benefits to the public were hoped to be and in some cases were realised, and what harm there really was, which was usually nothing, to the national security. That is aside from the fact, as you mentioned, that in his case, as in mine, there were crimes against him: conspiracies to harm him, totally, criminally, as was true in my case. But in my case, when it came out, the case was dropped…………..

in the case of Julian Assange, the revelations that the CIA tried, had plans to kill him didn’t make the judge drop the case…

ELLSBERG. She didn’t really consider them, seriously, which seems shocking. I mean, British law is different from American, in the sense: they don’t have a First Amendment………………… in Britain – their Act is much tougher against free speech and against the press there. So maybe the judge couldn’t take that seriously, being British. But the idea of illegally overhearing a defendant’s discussions with his attorneys, and with his doctors, and everything he said with every visitor – I visited him twice in the Ecuadorian embassy, and I am sure it was recorded – that, obviously, even in Britain [he smiles], or anywhere else, should lead to the dropping of the case, except in a clear-cut police society, let’s say, like East Germany used to be, for example.

……………….. If Julian Assange is extradited and prosecuted in America, I would say, with the mood now, since 9/11, with these last twenty years, he might well be convicted, although he shouldn’t be. The First Amendment would then be eliminated. What that means is: not only sources, but journalists would then have to fear being prosecuted and convicted for doing their job in questioning the government, putting out information the top government doesn’t want. This is a government that we know conducts aggressive wars, criminal aggressive wars, as in Iraq, absolutely, clear-cut aggression, and has very, very little concern for the people of those areas, as they are showing in Afghanistan, right now…………..

 In short: it’s a government that needs to be exposed, and it won’t be very much if…if Julian’s case is a real turning point here, then we will essentially have a press like that of Stalin’s Russia.

March 24, 2022 Posted by Christina Macpherson | Legal, USA | Leave a comment