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    Spying, hacking and intimidation: Israel’s nine-year ‘war’ on the ICC exposed

    When the chief prosecutor of the international criminal court (ICC) announced he was seeking arrest warrants against Israeli and Hamas leaders, he issued a cryptic warning: “I insist that all attempts to impede, intimidate or improperly influence the officials of this court must cease immediately.”Karim Khan did not provide specific details of attempts to interfere in the ICC’s work, but he noted a clause in the court’s foundational treaty that made any such interference a criminal offence. If the conduct continued, he added, “my office will not hesitate to act”.The prosecutor did not say who had attempted to intervene in the administration of justice, or how exactly they had done so.Now, an investigation by the Guardian and the Israeli-based magazines +972 and Local Call can reveal how Israel has run an almost decade-long secret “war” against the court. The country deployed its intelligence agencies to surveil, hack, pressure, smear and allegedly threaten senior ICC staff in an effort to derail the court’s inquiries.Israeli intelligence captured the communications of numerous ICC officials, including Khan and his predecessor as prosecutor, Fatou Bensouda, intercepting phone calls, messages, emails and documents.The surveillance was ongoing in recent months, providing Israel’s prime minister, Benjamin Netanyahu, with advance knowledge of the prosecutor’s intentions. A recent intercepted communication suggested that Khan wanted to issue arrest warrants against Israelis but was under “tremendous pressure from the United States”, according to a source familiar with its contents.View image in fullscreenBensouda, who as chief prosecutor opened the ICC’s investigation in 2021, paving the way for last week’s announcement, was also spied on and allegedly threatened.Netanyahu has taken a close interest in the intelligence operations against the ICC, and was described by one intelligence source as being “obsessed” with intercepts about the case. Overseen by his national security advisers, the efforts involved the domestic spy agency, the Shin Bet, as well as the military’s intelligence directorate, Aman, and cyber-intelligence division, Unit 8200. Intelligence gleaned from intercepts was, sources said, disseminated to government ministries of justice, foreign affairs and strategic affairs.A covert operation against Bensouda, revealed on Tuesday by the Guardian, was run personally by Netanyahu’s close ally Yossi Cohen, who was at the time the director of Israel’s foreign intelligence agency, the Mossad. At one stage, the spy chief even enlisted the help of the then president of the Democratic Republic of the Congo, Joseph Kabila.Details of Israel’s nine-year campaign to thwart the ICC’s inquiry have been uncovered by the Guardian, an Israeli-Palestinian publication +972 Magazine and Local Call, a Hebrew-language outlet.The joint investigation draws on interviews with more than two dozen current and former Israeli intelligence officers and government officials, senior ICC figures, diplomats and lawyers familiar with the ICC case and Israel’s efforts to undermine it.Contacted by the Guardian, a spokesperson for the ICC said it was aware of “proactive intelligence-gathering activities being undertaken by a number of national agencies hostile towards the court”. They said the ICC was continually implementing countermeasures against such activity, and that “none of the recent attacks against it by national intelligence agencies” had penetrated the court’s core evidence holdings, which had remained secure.A spokesperson for Israel’s prime minister’s office said: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.” A military spokesperson added: “The IDF [Israel Defense Forces] did not and does not conduct surveillance or other intelligence operations against the ICC.”Since it was established in 2002, the ICC has served as a permanent court of last resort for the prosecution of individuals accused of some of the world’s worst atrocities. It has charged the former Sudanese president Omar al-Bashir, the late Libyan president Muammar Gaddafi and most recently, the Russian president, Vladimir Putin.Khan’s decision to seek warrants against Netanyahu and his defence minister, Yoav Gallant, along with Hamas leaders implicated in the 7 October attack, marks the first time an ICC prosecutor has sought arrest warrants against the leader of a close western ally.View image in fullscreenThe allegations of war crimes and crimes against humanity that Khan has levelled against Netanyahu and Gallant all relate to Israel’s eight-month war in Gaza, which according to the territory’s health authority has killed more than 35,000 people.But the ICC case has been a decade in the making, inching forward amid rising alarm among Israeli officials at the possibility of arrest warrants, which would prevent those accused from travelling to any of the court’s 124 member states for fear of arrest.It is this spectre of prosecutions in The Hague that one former Israeli intelligence official said had led the “entire military and political establishment” to regard the counteroffensive against the ICC “as a war that had to be waged, and one that Israel needed to be defended against. It was described in military terms.”That “war” commenced in January 2015, when it was confirmed that Palestine would join the court after it was recognised as a state by the UN general assembly. Its accession was condemned by Israeli officials as a form of “diplomatic terrorism”.One former defence official familiar with Israel’s counter-ICC effort said joining the court had been “perceived as the crossing of a red line” and “perhaps the most aggressive” diplomatic move taken by the Palestinian Authority, which governs the West Bank. “To be recognised as a state in the UN is nice,” they added. “But the ICC is a mechanism with teeth.”View image in fullscreenA hand-delivered threatFor Fatou Bensouda, a respected Gambian lawyer who was elected the ICC’s chief prosecutor in 2012, the accession of Palestine to the court brought with it a momentous decision. Under the Rome statute, the treaty that established the court, the ICC can exercise its jurisdiction only over crimes within member states or by nationals of those states.Israel, like the US, Russia and China, is not a member. After Palestine’s acceptance as an ICC member, any alleged war crimes – committed by those of any nationality – in occupied Palestinian territories now fell under Bensouda’s jurisdiction.On 16 January 2015, within weeks of Palestine joining, Bensouda opened a preliminary examination into what in the legalese of the court was called “the situation in Palestine”. The following month, two men who had managed to obtain the prosecutor’s private address turned up at her home in The Hague.Sources familiar with the incident said the men declined to identify themselves when they arrived, but said they wanted to hand-deliver a letter to Bensouda on behalf of an unknown German woman who wanted to thank her. The envelope contained hundreds of dollars in cash and a note with an Israeli phone number.View image in fullscreenSources with knowledge of an ICC review into the incident said that while it was not possible to identify the men, or fully establish their motives, it was concluded that Israel was likely to be signalling to the prosecutor that it knew where she lived. The ICC reported the incident to Dutch authorities and put in place additional security, installing CCTV cameras at her home.The ICC’s preliminary inquiry in the Palestinian territories was one of several such fact-finding exercises the court was undertaking at the time, as a precursor to a possible full investigation. Bensouda’s caseload also included nine full investigations, including into events in DRC, Kenya and the Darfur region of Sudan.Officials in the prosecutor’s office believed the court was vulnerable to espionage activity and introduced countersurveillance measures to protect their confidential inquiries.In Israel, the prime minister’s national security council (NSC) had mobilised a response involving its intelligence agencies. Netanyahu and some of the generals and spy chiefs who authorised the operation had a personal stake in its outcome.Unlike the international court of justice (ICJ), a UN body that deals with the legal responsibility of nation states, the ICC is a criminal court that prosecutes individuals, targeting those deemed most responsible for atrocities.View image in fullscreenMultiple Israeli sources said the leadership of the IDF wanted military intelligence to join the effort, which was being led by other spy agencies, to ensure senior officers could be protected from charges. “We were told that senior officers are afraid to accept positions in the West Bank because they are afraid of being prosecuted in The Hague,” one source recalled.Two intelligence officials involved in procuring intercepts about the ICC said the prime minister’s office took a keen interest in their work. Netanyahu’s office, one said, would send “areas of interests” and “instructions” in relation to the monitoring of court officials. Another described the prime minister as “obsessed” with intercepts shedding light on the activities of the ICC.Hacked emails and monitored callsFive sources familiar with Israel’s intelligence activities said it routinely spied on the phone calls made by Bensouda and her staff with Palestinians. Blocked by Israel from accessing Gaza and the West Bank, including East Jerusalem, the ICC was forced to conduct much of its research by telephone, which made it more susceptible to surveillance.Thanks to their comprehensive access to Palestinian telecoms infrastructure, the sources said, intelligence operatives could capture the calls without installing spyware on the ICC official’s devices.“If Fatou Bensouda spoke to any person in the West Bank or Gaza, then that phone call would enter [intercept] systems,” one source said. Another said there was no hesitation internally over spying on the prosecutor, adding: “With Bensouda, she’s black and African, so who cares?”The surveillance system did not capture calls between ICC officials and anyone outside Palestine. However, multiple sources said the system required the active selection of the overseas phone numbers of ICC officials whose calls Israeli intelligence agencies decided to listen to.According to one Israeli source, a large whiteboard in an Israeli intelligence department contained the names of about 60 people under surveillance – half of them Palestinians and half from other countries, including UN officials and ICC personnel.In The Hague, Bensouda and her senior staff were alerted by security advisers and via diplomatic channels that Israel was monitoring their work. A former senior ICC official recalled: “We were made aware they were trying to get information on where we were with the preliminary examination.”Officials also became aware of specific threats against a prominent Palestinian NGO, Al-Haq, which was one of several Palestinian human rights groups that frequently submitted information to the ICC inquiry, often in lengthy documents detailing incidents it wanted the prosecutor to consider. The Palestinian Authority submitted similar dossiers.View image in fullscreenSuch documents often contained sensitive information such as testimony from potential witnesses. Al-Haq’s submissions are also understood to have linked specific allegations of Rome statute crimes to senior officials, including chiefs of the IDF, directors of the Shin Bet, and defence ministers such as Benny Gantz.Years later, after the ICC had opened a full investigation into the Palestine case, Gantz designated Al-Haq and five other Palestinian rights groups as “terrorist organisations”, a label that was rejected by multiple European states and later found by the CIA to be unsupported by evidence. The organisations said the designations were a “targeted assault” against those most actively engaging with the ICC.According to multiple current and former intelligence officials, military cyber-offensive teams and the Shin Bet both systematically monitored the employees of Palestinian NGOs and the Palestinian Authority who were engaging with the ICC. Two intelligence sources described how Israeli operatives hacked into the emails of Al-Haq and other groups communicating with Bensouda’s office.One of the sources said the Shin Bet even installed Pegasus spyware, developed by the private-sector NSO Group, on the phones of multiple Palestinian NGO employees, as well as two senior Palestinian Authority officials.Keeping tabs on the Palestinian submissions to the ICC’s inquiry was viewed as part of the Shin Bet’s mandate, but some army officials were concerned that spying on a foreign civilian entity crossed a line, as it had little to do with military operations.“It has nothing to do with Hamas, it has nothing to do with stability in the West Bank,” one military source said of the ICC surveillance. Another added: “We used our resources to spy on Fatou Bensouda – this isn’t something legitimate to do as military intelligence.”Secret meetings with the ICCLegitimate or otherwise, the surveillance of the ICC and Palestinians making the case for prosecutions against Israelis provided the Israeli government with an advantage in a secret back channel it had opened with the prosecutor’s office.Israel’s meetings with the ICC were highly sensitive: if made public, they had the potential to undermine the government’s official position that it did not recognise the court’s authority.According to six sources familiar with the meetings, they consisted of a delegation of top government lawyers and diplomats who travelled to The Hague. Two of the sources said the meetings were authorised by Netanyahu.The Israeli delegation was drawn from the justice ministry, foreign ministry and the military advocate general’s office. The meetings took place between 2017 and 2019, and were led by the prominent Israeli lawyer and diplomat Tal Becker.“In the beginning it was tense,” recalled a former ICC official. “We would get into details of specific incidents. We’d say: ‘We’re receiving allegations about these attacks, these killings,’ and they would provide us with information.”View image in fullscreenA person with direct knowledge of Israel’s preparation for the back-channel meetings said officials in the justice ministry were furnished with intelligence that had been gleaned from Israeli surveillance intercepts before delegations arrived at The Hague. “The lawyers who dealt with the issue at the justice ministry had a big thirst for intelligence information,” they said.For the Israelis, the back-channel meetings, while sensitive, presented a unique opportunity to directly present legal arguments challenging the prosecutor’s jurisdiction over the Palestinian territories.They also sought to convince the prosecutor that, despite the Israeli military’s highly questionable record of investigating wrongdoing in its ranks, it had robust procedures for holding its armed forces to account.This was a critical issue for Israel. A core ICC principle, known as complementarity, prevents the prosecutor from investigating or trying individuals if they are the subject of credible state-level investigations or criminal proceedings.Israeli surveillance operatives were asked to find out which specific incidents might form part of a future ICC prosecution, multiple sources said, in order to enable Israeli investigative bodies to “open investigations retroactively” in the same cases.“If materials were transferred to the ICC, we had to understand exactly what they were, to ensure that the IDF investigated them independently and sufficiently so that they could claim complementarity,” one source explained.Israel’s back-channel meetings with the ICC ended in December 2019, when Bensouda, announcing the end of her preliminary examination, said she believed there was a “reasonable basis” to conclude that Israel and Palestinian armed groups had both committed war crimes in the occupied territories.View image in fullscreenIt was a significant setback for Israel’s leaders, although it could have been worse. In a move that some in the government regarded as a partial vindication of Israel’s lobbying efforts, Bensouda stopped short of launching a formal investigation.Instead, she announced she would ask a panel of ICC judges to rule on the contentious question of the court’s jurisdiction over the Palestinian territories, due to “unique and highly contested legal and factual issues”.Yet Bensouda had made clear she was minded to open a full investigation if the judges gave her the green light. It was against this backdrop that Israel ramped up its campaign against the ICC and turned to its top spy chief to turn up the heat on Bensouda personally.Personal threats and a ‘smear campaign’Between late 2019 and early 2021, as the pre-trial chamber considered the jurisdictional questions, the director of the Mossad, Yossi Cohen, intensified his efforts to persuade Bensouda not to proceed with the investigation.Cohen’s contacts with Bensouda – which were described to the Guardian by four people familiar with the prosecutor’s contemporaneous accounts of the interactions, as well as sources briefed on the Mossad operation – had begun several years earlier.In one of the earliest encounters, Cohen surprised Bensouda when he made an unexpected appearance at an official meeting the prosecutor was holding with the then DRC president, Joseph Kabila, in a New York hotel suite.View image in fullscreenSources familiar with the meeting said that after Bensouda’s staff were asked to leave the room, the director of the Mossad suddenly appeared from behind a door in a carefully choreographed “ambush”.After the incident in New York, Cohen persisted in contacting the prosecutor, turning up unannounced and subjecting her to unwanted calls. While initially amicable, the sources said, Cohen’s behaviour became increasingly threatening and intimidating.A close ally of Netanyahu at the time, Cohen was a veteran Mossad spymaster and had gained a reputation within the service as a skilled recruiter of agents with experience cultivating high-level officials in foreign governments.Accounts of his secret meetings with Bensouda paint a picture in which he sought to “build a relationship” with the prosecutor as he attempted to dissuade her from pursuing an investigation that, if it went ahead, could embroil senior Israeli officials.Three sources briefed on Cohen’s activities said they understood the spy chief had tried to recruit Bensouda into complying with Israel’s demands during the period in which she was waiting for a ruling from the pre-trial chamber.They said he became more threatening after he began to realise the prosecutor would not be persuaded to abandon the investigation. At one stage, Cohen is said to have made comments about Bensouda’s security and thinly veiled threats about the consequences for her career if she proceeded. Contacted by the Guardian, Cohen and Kabila did not respond to requests for comment. Bensouda declined to comment.View image in fullscreenWhen she was prosecutor, Bensouda formally disclosed her encounters with Cohen to a small group within the ICC, with the intention of putting on record her belief that she had been “personally threatened”, sources familiar with the disclosures said.This was not the only way Israel sought to place pressure on the prosecutor. At around the same time, ICC officials discovered details of what sources described as a diplomatic “smear campaign”, relating in part to a close family member.According to multiple sources, the Mossad had obtained a cache of material including transcripts of an apparent sting operation against Bensouda’s husband. The origins of the material – and whether it was genuine – remain unclear.However, elements of the information were circulated by Israel among western diplomatic officials, sources said, in a failed attempt to discredit the chief prosecutor. A person briefed on the campaign said it gained little traction among diplomats and amounted to a desperate attempt to “besmirch” Bensouda’s reputation.Trump’s campaign against the ICCIn March 2020, three months after Bensouda referred the Palestine case to the pre-trial chamber, an Israeli government delegation reportedly held discussions in Washington with senior US officials about “a joint Israeli-American struggle” against the ICC.One Israeli intelligence official said they regarded Donald Trump’s administration as more cooperative than that of his Democratic predecessor. The Israelis felt sufficiently comfortable to ask for information from US intelligence about Bensouda, a request the source said would have been “impossible” during Barack Obama’s tenure.View image in fullscreenDays before the meetings in Washington, Bensouda had received authorisation from the ICC’s judges to pursue a separate investigation into war crimes in Afghanistan committed by the Taliban and both Afghan and US military personnel.Fearing US armed forces would be prosecuted, the Trump administration was engaged in its own aggressive campaign against the ICC, culminating in the summer of 2020 with the imposition of US economic sanctions on Bensouda and one of her top officials.Among ICC officials, the US-led financial and visa restrictions on court personnel were believed to relate as much to the Palestine investigation as to the Afghanistan case. Two former ICC officials said senior Israeli officials had expressly indicated to them that Israel and the US were working together.At a press conference in June that year, senior Trump administration figures signalled their intention to impose sanctions on ICC officials, announcing they had received unspecified information about “financial corruption and malfeasance at the highest levels of the office of the prosecutor”.As well as referring to the Afghanistan case, Mike Pompeo, Trump’s secretary of state, linked the US measures to the Palestine case. “It’s clear the ICC is only putting Israel in [its] crosshairs for nakedly political purposes,” he said. Months later, Pompeo accused Bensouda of having “engaged in corrupt acts for her personal benefit”.The US has never publicly provided any information to substantiate that charge, and Joe Biden lifted the sanctions months after he entered the White House.View image in fullscreenBut at the time Bensouda faced increasing pressure from an apparently concerted effort behind the scenes by the two powerful allies. As a Gambian national, she did not enjoy the political protection that other ICC colleagues from western countries had by virtue of their citizenship. A former ICC source said this left her “vulnerable and isolated”.Cohen’s activities, sources said, were particularly concerning for the prosecutor and led her to fear for her personal safety. When the pre-trial chamber finally confirmed the ICC had jurisdiction in Palestine in February 2021, some at the ICC even believed Bensouda should leave the final decision to open a full investigation to her successor.On 3 March, however, months before the end of her nine-year term, Bensouda announced a full investigation in the Palestine case, setting in motion a process that could lead to criminal charges, though she cautioned the next phase could take time.“Any investigation undertaken by the office will be conducted independently, impartially and objectively, without fear or favour,” she said. “To both Palestinian and Israeli victims and affected communities, we urge patience.”Khan announces arrest warrantsWhen Khan took the helm at the ICC prosecutor’s office in June 2021, he inherited an investigation he later said “lies on the San Andreas fault of international politics and strategic interests”.As he took office, other investigations – including on events in the Philippines, DRC, Afghanistan and Bangladesh – competed for his attention, and in March 2022, days after Russia launched its invasion of Ukraine, he opened a high-profile investigation into alleged Russian war crimes.Initially, the politically sensitive Palestine inquiry was not treated as a priority by the British prosecutor’s team, sources familiar with the case said. One said it was in effect “on the shelf” – but Khan’s office disputes this and says it established a dedicated investigative team to take the inquiry forward.In Israel, the government’s top lawyers regarded Khan – who had previously defended warlords such as the former Liberian president Charles Taylor – as a more cautious prosecutor than Bensouda. One former senior Israeli official said there was “lots of respect” for Khan, unlike for his predecessor. His appointment to the court was viewed as a “reason for optimism”, they said, but they added that the 7 October attack “changed that reality”.The Hamas assault on southern Israel, in which Palestinian militants killed nearly 1,200 Israelis and kidnapped about 250 people, clearly involved brazen war crimes. So, too, in the view of many legal experts, has Israel’s subsequent onslaught on Gaza, which is estimated to have killed more than 35,000 people and brought the territory to the brink of famine through Israel’s obstruction of humanitarian aid.By the end of the third week of Israel’s bombardment of Gaza, Khan was on the ground at the Rafah border crossing. He subsequently made visits to the West Bank and southern Israel, where he was invited to meet survivors of the 7 October attack and the relatives of people who had been killed.In February 2024, Khan issued a strongly worded statement that Netanyahu’s legal advisers interpreted as an ominous sign. In the post on X, he in effect warned Israel against launching an assault on Rafah, Gaza’s southernmost city, where more than 1 million displaced people were sheltering at the time.“I am deeply concerned by the reported bombardment and potential ground incursion by Israeli forces in Rafah,” he wrote. “Those who do not comply with the law should not complain later when my office takes action.”View image in fullscreenThe comments stirred alarm within the Israeli government as they appeared to deviate from his previous statements about the war, which officials had viewed as reassuringly cautious. “That tweet surprised us a lot,” a senior official said.Concerns in Israel over Khan’s intentions escalated last month when the government briefed the media that it believed the prosecutor was contemplating arrest warrants against Netanyahu and other senior officials such as Yoav Gallant.Israeli intelligence had intercepted emails, attachments and text messages from Khan and other officials in his office. “The subject of the ICC climbed the ladder of priorities for Israeli intelligence,” one intelligence source said.It was via intercepted communications that Israel established that Khan was at one stage considering entering Gaza through Egypt and wanted urgent assistance doing so “without Israel’s permission”.Another Israeli intelligence assessment, circulated widely in the intelligence community, drew on surveillance of a call between two Palestinian politicians. One of them said Khan had indicated that a request for arrest warrants of Israeli leaders could be imminent, but warned he was “under tremendous pressure from the United States”.It was against this backdrop that Netanyahu made a series of public statements warning a request for arrest warrants could be imminent. He called on “the leaders of the free world to stand firmly against the ICC” and “use all the means at their disposal to stop this dangerous move”.He added: “Branding Israel’s leaders and soldiers as war criminals will pour jet fuel on the fires of antisemitism.” In Washington, a group of senior US Republican senators had already sent a threatening letter to Khan with a clear warning: “Target Israel and we will target you.”View image in fullscreenThe ICC, meanwhile, has strengthened its security with regular sweeps of the prosecutor’s offices, security checks on devices, phone-free areas, weekly threat assessments and the introduction of specialist equipment. An ICC spokesperson said Khan’s office had been subjected to “several forms of threats and communications that could be viewed as attempts to unduly influence its activities”.Khan recently disclosed in an interview with CNN that some elected leaders had been “very blunt” with him as he prepared to issue arrest warrants. “‘This court is built for Africa and for thugs like Putin,’ is was what a senior leader told me.”Despite the pressure, Khan, like his predecessor in the prosecutor’s office, chose to press ahead. Last week, Khan announced he was seeking arrest warrants for Netanyahu and Gallant alongside three Hamas leaders for war crimes and crimes against humanity.He said Israel’s prime minister and defence minister stood accused of responsibility for extermination, starvation, the denial of humanitarian relief supplies and deliberate targeting of civilians.Standing at a lectern with two of his top prosecutors – one American, the other British – at his side, Khan said he had repeatedly told Israel to take urgent action to comply with humanitarian law.“I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome statute offences. I could not have been clearer,” he said. “As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my office takes action. That day has come.” More

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    ‘Clear evidence’ Russia is committing war crimes, says Pentagon – video

    The Pentagon has accused Russian forces of committing war crimes in Ukraine, saying the Kremlin had carried out indiscriminate attacks as part of an intentional strategy in the conflict. ‘We certainly see clear evidence that Russian forces are committing war crimes and we are helping with the collecting of evidence of that,’ Pentagon spokesman John Kirby told a news briefing. ‘But there’s investigative processes that are going to go on, and we’re going to let that happen. We’re going to contribute to that investigative process’

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    How the Legal Landscape Is Changing for War Crimes

    War crimes, genocide, torture, forced disappearances, crimes against humanity and other serious violations of international law have been characteristic of conflicts in the Arab world since even before they were codified in law. These crimes still occur in many Arab countries, most notably in Syria and Yemen. Not only do perpetrators often go unpunished, but they also find themselves rewarded and promoted.

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    So, when on November 30, 2021, a court in Frankfurt, Germany, handed down a life sentence to an Iraqi man who joined the Islamic State (IS) group for genocide against the Yazidi minority — the first time a former member of IS had been convicted of genocide and the first verdict for genocide against Yazidis — it was celebrated as a landmark case in the fight for justice and accountability. Taha al-Jumailly was found guilty of genocide, crimes against humanity resulting in death, war crimes, aiding and abetting war crimes, and bodily harm resulting in death.

    “Today, ISIS member Taha AJ was convicted of genocide and sentenced to life in prison. This is the first genocide verdict against an ISIS member. This verdict is a win for survivors of genocide, survivors of sexual violence, & the Yazidi community,” tweeted Nadia Murad, a 2018 Nobel Peace Prize winner and a Yazidi survivor of IS enslavement.

    Universal Jurisdiction

    The trial was also the first in Germany based on the principle of universal jurisdiction addressing crimes under international law committed abroad by a perpetrator who is not a German citizen and was only extradited on the basis of an international arrest warrant. Universal jurisdiction is the principle that some crimes are so serious that states should be allowed to claim jurisdiction over an accused person regardless of where they were committed or any other relation with the prosecuting entity. None of the crimes in the Jumailly case were committed in Germany, and neither the victims nor the suspect were German nationals.

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    Though universal jurisdiction has been practiced in just a few countries in recent years, it has become an increasingly important tool for achieving accountability and justice for the survivors and victims of international crimes. Hundreds of investigations are ongoing and dozens of convictions have been obtained.

    The blossoming of universal jurisdiction is attributable to several factors, one of which is that the alternative route to prosecuting international crimes through the UN Security Council and the International Criminal Court (ICC) has effectively been closed by geopolitics. The Syrian conflict, for example, has never been appraised by the ICC because Russia backs President Bashar al-Assad.

    The Pursuit of Cases

    In recent years, there has been a greater capacity and willingness on the part of some domestic authorities to pursue cases involving international crimes, at least in certain circumstances. More and more countries have also passed laws allowing them to conduct the kind of landmark prosecution that took place in Frankfurt. More countries are following the Dutch example in setting up specialized units within the police, prosecution and even immigration services dedicated to identifying perpetrators of international crimes and bringing them to trial.

    Another important factor in the power of universal jurisdiction is that victims and their advocates can contribute to investigations and prosecutions, and sometimes even influence the direction they take. In some countries, such as France and Belgium, victims and NGOs can initiate criminal proceedings. Even where this is not possible, victims and their advocates can still drive cases forward in other ways, such as by tracking perpetrators’ movements, sharing information with the authorities and exerting pressure on them to act.

    Dutch authorities have even issued directions for Syrians in the Netherlands on how to file a criminal complaint against other Syrians relating to violations in Syria. In February, after Germany’s top court ruled that war crimes committed abroad can be tried in the country, a court in Koblenz became the first court outside of Syria to rule on state-sponsored torture by the Assad regime when it sentenced a former member of the secret police to four and a half years in prison for being an accomplice to crimes against humanity. Another former Syrian intelligence officer is currently on trial in Germany for overseeing 58 counts of murder and at least 4,000 cases of torture, rape or sexual abuse.

    Many Challenges

    Despite this recent progress, enormous legal, evidentiary and logistical challenges remain before international criminal cases can be brought to trial. Investigating and prosecuting international crimes in domestic courts is not straightforward, especially in a complex conflict such as the Yemen war where crimes have been committed over many years by different actors.

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    Foreign investigators cannot easily gather evidence on the ground, so they have to rely on the cooperation of different parties to the conflict to build cases. UN bodies like the group of eminent experts, international organizations, local NGOs, and organizations such as Airwars assist with investigations.

    Even if evidence linking an individual perpetrator to war crimes can be established, the suspect still has to be apprehended. In some countries practicing universal jurisdiction, those accused of committing war crimes do not need to be within reach of authorities for an investigation to be opened, but they need to be physically brought to court before any trial can take place.

    Though international cooperation can be used to apprehend and extradite international pariahs like IS militants, pirates and slave traders, war criminals who are still serving members of Arab regimes are not about to be handed over. Only when they set foot in a country practicing universal jurisdiction — whether for work, vacation, claiming asylum or for any other reason — can they be arrested immediately, providing they do not benefit from immunity.

    Jumailly’s conviction “sends a clear message,” said Natia Navrouzov, a lawyer and member of the NGO Yazda, which gathers evidence of crimes committed by IS against the Yazidis. “It doesn’t matter where the crimes were committed and it doesn’t matter where the perpetrators are, thanks to the universal jurisdiction, they can’t hide and will still be put on trial.”

    *[This article was originally published by Arab Digest, a partner of Fair Observer.]

    The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More

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    Inside the CIA’s secret Kabul base, burned out and abandoned in haste

    The ObserverAfghanistanInside the CIA’s secret Kabul base, burned out and abandoned in haste A Taliban commander invited the media to inspect the site where America plotted killing raids and tortured prisonersEmma Graham-Harrison in KabulSun 3 Oct 2021 01.00 EDTThe cars, minibuses and armoured vehicles that the CIA used to run its shadow war in Afghanistan had been lined up and incinerated beyond identification before the Americans left. Below their ashy grey remains, pools of molten metal had solidified into permanent shiny puddles as the blaze cooled.The faux Afghan village where they trained paramilitary forces linked to some of the worst human rights abuses of the war had been brought down on itself. Only a high concrete wall still loomed over the crumpled piles of mud and beams, once used to practise for the widely hated night raids on civilian homes.The vast ammunition dump had been blown up. Many ways to kill and maim human beings, from guns to grenades, mortars to heavy artillery, laid out in three long rows of double-height shipping containers, were reduced to shards of twisted metal. The blast from the huge detonation, which came soon after the bloody bomb at Kabul airport, shook and terrified the capital city.All formed part of the CIA compound that for 20 years was the dark, secret heart of America’s “war on terror”, a place were some of the worst abuses to sour the mission in Afghanistan would fester.The sprawling hillside compound, spread over two square miles north-east of the airport, became infamous early on in the conflict for torture and murder at its “Salt Pit” prison, codenamed Cobalt by the CIA. The men held there called it the “dark prison”, because there was no light in their cells, the only occasional illumination coming from the headlamps of their guards.It was here that Gul Rahman died of hypothermia in 2002 after he was chained to a wall half-naked and left overnight in freezing temperatures. His death prompted the first formal CIA guidelines on interrogation under a new regime of torture, eviscerated in a 2014 report that found that the abuse did not provide useful intelligence.The base has for two decades been a closely guarded secret, visible only in satellite photos, navigated by the testimony of survivors. Now the Taliban’s special forces have moved in and recently, briefly, opened up the secret compound to journalists.“We want to show how they wasted all these things that could have been used to build our country,” said Mullah Hassanain, a commander in the Taliban’s elite 313 unit, who led the tour of destroyed and burnt-out compounds, “burn pits” and incinerated cars, buses and armoured military vehicles.Taliban special forces include suicide attackers who recently marched through Kabul to celebrate seizing the capital. Vehicles now emblazoned with their official “suicide squadron” logo escorted journalists around the former CIA base.It was a grimly ironic juxtaposition of the most cruel and ruthless units on both sides of this war, a reminder of the suffering inflicted on civilians by all combatants in the name of higher goals, over several decades.“They are martyrdom seekers who were responsible for the attacks on important locations of invaders and the regime. They now have control of important locations,” said a Taliban official, when asked why suicide squads were escorting journalists, and if they would continue to operate. “It is a very big battalion. It is responsible for the security of important locations. They will be expanded and further organised. Whenever there is a need, they will respond. They are always ready for sacrifices for our country and the defence of our people.”They planned to use the CIA base for their own military training, Hassanain said, so this brief glimpse of the compound is likely to be both the first and last time the media is allowed in.The men guarding it had already changed into the tiger-stripe camouflage of the old Afghan National Directorate of Security, the spy agency once in charge of hunting them down. The paramilitary units that operated here, based in barracks just near the site of the former Salt Pit jail, included some that were among the most feared in the country, mired in allegations of abuse that included extrajudicial killings of children and other civilians. The barracks had been abandoned so fast that the men who lived there left food half-finished, and barracks floors were littered with possessions spilled out of emptied lockers, cleared in an apparent frenzy.Mostly they had taken or destroyed anything with names, or ranks, but there were 01 patches, and one book that was filled with handwritten notes from weeks of training.Nearby, the site of the Salt Pit jail had apparently been razed a few months earlier. A New York Times satellite investigation found that, since spring, a cluster of buildings inside this part of the CIA compound had been levelled.Taliban officials said they did not have any details about the Salt Pit, or what had happened to the former jail. Rahman’s family are still searching for his body, which has never been returned to them.Other torture techniques recorded at the site included “rectal feeding”, shackling prisoners to bars overhead, and depriving inmates of toilet “privileges”, leaving them naked or wearing adult diapers.Construction equipment was abandoned on the site, with concrete slabs half poured. Next door, a building that had once been fortified with high-tech doors and equipment had apparently been firebombed, its interior as totally destroyed and reduced to ash as the cars outside.Destroying sensitive equipment at the base would have been complex, and there was evidence of several burn pits where everything from medical kits and a manual on leadership was put to the flames, along with larger pieces of equipment.The Taliban officials were jumpy about letting journalists into areas that had not been officially cleared. They had found several booby trap bombs in the rubble of the camp, Hassanain said, and were worried that there might be more.For days, helicopters ferried hundreds of people from the base to inside the airport, where men from the 01 force – aware they were likely to be prominent targets for reprisals – helped secure the perimeter in return for evacuation in the final hours, under a deal struck with the US.Untouched nearby was a recreation hall with snooker, ping-pong, darts and table football gathering dust. A box in the corner held brain teaser puzzles. It was unclear what the Taliban, once so austere that they even banned chess, would do with the trappings of western military downtime.TopicsAfghanistanThe ObserverTalibanCIACIA torture reportSouth and Central AsiaTortureWar crimesfeaturesReuse this content More

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    The US Needs to Uncancel the ICC

    When the loony right gathered at the Conservative Political Action Conference back in February, the theme of the Trump-heavy gathering was “America Uncanceled.” Speaker after speaker railed against “political correctness” in American culture, from “woke mobs” to “censorship” in the mainstream news media. Incredibly, they tried to transform so-called cancel culture into the single greatest problem facing a United States still reeling from COVID-19 and its economic sucker punch. And yet, time and again, it has been the loony right that has been so eager to hit the delete button.

    These supposed defenders of everyone’s right to voice opinions attempted to cancel an entire presidential election because it failed to produce their preferred result. They’ve spent decades trying to cancel voting rights (not to mention a wide variety of other rights). They’ve directed huge amounts of time and money to canceling social benefits for the least fortunate Americans. Throughout history, they’ve mounted campaigns to cancel specific individuals from Colin Kaepernick and Representative Ilhan Omar to the black lists of the McCarthy era. They’re also not above canceling entire groups of people, from the transgender community all the way back to the original sin of this country, namely the mass cancelation of Native Americans.

    Then there’s foreign policy. The Trump administration never met an international agreement or institution — the Paris climate accord, the Iran nuclear deal, the World Health Organization — that it didn’t want to cover with “cancel” stamps.

    One institution that has elicited particular ire from the far right has been the International Criminal Court (ICC). On April 2, the Biden administration took a step toward mending the rift between the United States and the ICC. It didn’t go far enough.

    Blocking the International Criminal Court

    In 2000, the Clinton administration signed the Rome Statute that established the International Criminal Court, which has focused on bringing to international justice the perpetrators of war crimes, genocide, crimes against humanity and (beginning in 2017) crimes of aggression. In 2002, the Bush administration effectively unsigned the agreement and Congress pushed to shield all US military personnel from ICC prosecution. Although the Obama administration cooperated with the court, it was still worried about possible investigations into the US “war on terrorism.”

    Ambivalence turned to outright hostility during the Trump years. National Security Adviser John Bolton made it his special mission to attack the ICC as “ineffective, unaccountable, and indeed, outright dangerous.” Among Bolton’s many spurious arguments about the court, he claimed that the body constitutes an assault on US sovereignty and the Constitution in particular, a favorite hobbyhorse of the loony right. But the “supremacy clause” of the US Constitution (Article VI, clause 2) already establishes the primacy of federal law over treaty obligations. So, can someone please get those supposed legal scholars to actually read the pocket constitutions they carry around so reverently?

    Bolton’s off-base analysis came with a threat. “We will respond against the ICC and its personnel to the extent permitted by U.S. law,” he warned. “We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”

    In 2020, the Trump administration began to implement Bolton’s attack plan by imposing sanctions against ICC officials. Prosecutor Fatou Bensouda and senior prosecution official Phakiso Mochochoko were placed under travel restrictions and an asset freeze because they were investigating possible US war crimes in Afghanistan. This blacklisting of ICC investigators sent a chilling signal that the United States would attempt, much like a rogue authoritarian country, to obstruct justice at an international level.

    An equally vexing issue involves a war crimes investigation in the Occupied Palestinian Territories. Although the ICC investigators looked at atrocities committed by Israelis and Palestinians, both Israel and the US condemned the investigation, arguing that Israel isn’t an ICC member and so the international body lacks jurisdiction. The United States has made the same argument about the investigation into the conduct of American soldiers in Afghanistan, since the US is not a party to the ICC.

    But the ICC’s jurisdiction is quite clear: it extends to crimes “committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.” Palestine, an ICC member since 2015, requested the investigation. And Afghanistan is also an ICC member.

    Biden’s Response

    Earlier this month, US President Joe Biden lifted the Trump administration’s sanctions. European allies, in particular, were enthusiastic about this additional sign that the United States is rejoining the international community. “This important step underlines the US’s commitment to the international rules-based system,” said EU foreign policy chief Josep Borrell.

    But the Biden administration’s move comes with an important caveat. In his statement on the lifting of the sanctions, Secretary of State Antony Blinken noted that “we continue to disagree strongly with the ICC’s actions relating to the Afghan and Palestinian situations. We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

    When it comes to the ICC, then, a disturbing bipartisan consensus has emerged on its supposed encroachment upon US sovereignty. It’s OK for the ICC to prosecute the actions of countries in the Global South, but hand’s off the big boys, a status the United States generously extends to Israel. In the Senate, Ben Cardin and Rob Portman put out a letter last month criticizing the ICC’s investigation in Palestine, which attracted the support of 55 of their colleagues (down from 67 for a similar letter last year).

    Together with Israel, the US continues to abide by an exceptionalism when it comes to international law that it shares with several dozen states, including quite a few that the United States generally doesn’t like to be associated with, such as North Korea, Myanmar, Russia, China, Egypt, Belarus and Nicaragua.

    Of course, it hasn’t just been Bolton and a few outlaw states that have criticized the ICC. African countries in particular have accused the institution of bias. The Court has indeed opened investigations in a disproportionate number of African states: the Democratic Republic of Congo, Cote d’Ivoire, the Central African Republic, Sudan, Kenya, Libya and Uganda. Preliminary investigations also took place in Gabon, Guinea and Nigeria and were slated to start in Burundi. All of the 46 individuals facing charges before the court are African.

    In response to this perceived bias, the African Union, in 2017, called for a mass withdrawal of its members from the ICC. Burundi left the court that year, the first country in the world to do so (other countries, like the US and Russia, “withdrew” but hadn’t actually ratified the treaty in the first place). Two other countries that seemed on the verge of withdrawal, South Africa and Gambia, ultimately changed their minds.

    Bias or Backbone?

    The ICC was supposed to put an end to the era of imperial justice by which the winners determine who is guilty of war crimes, a bias that pervaded the Nuremberg trials. It has appointed judges and investigators from the Global South: Fatou Bensouda is Gambian, for instance, while Phakiso Mochochoko is from Lesotho. Still, the preponderance of investigations in Africa should give pause. The ICC has obviously had some difficulty making a transition to this new era. But let’s point out some obvious counter-arguments.

    First, the ICC doesn’t have an anti-African bias. It discriminates against African dictators and warlords. If anything, the court has a pro-African bias by standing up for the victims of violence in Africa. Other continents should be so lucky to have the ICC looking out for them. Second, the ICC has more recently begun to challenge major powers, including Russia for its actions in Georgia and Ukraine. It has also investigated the actions of Israel and the United States. These moves come with considerable risks, as the Trump sanctions painfully revealed. Third, the ICC has considerable jurisdictional restrictions. It can’t investigate crimes against humanity in North Korea since the latter isn’t a member. The same applies to China and its actions in Xinjiang.

    Instead of complaining about the ICC’s blind spots and shortcomings, the United States should get on board and put pressure on other countries to do likewise. Americans can’t pretend to support the rule of law, to loudly promote it around the world, and then turn around and say: Oh, well, it doesn’t apply to us. If the American justice system can prosecute perpetrators in blue like Derek Chauvin, the US can permit an international justice system to prosecute perpetrators in khaki who have killed civilians on a larger scale.

    So, Biden deserves praise for reversing the Trump administration’s brazen and embarrassing attack on the ICC. But that doesn’t constitute actual support for international law. It’s time for the United States to uncancel the International Criminal Court.

    *[This article was originally published by FPIF.]

    The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More

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    Will Biden Overturn Sanctions on the ICC?

    From the get-go, US President Joe Biden’s administration has focused on reversing the worst of Donald Trump’s policy decisions. One of the very worst was the imposition of sanctions on individual officials of the International Criminal Court (ICC). The Trump administration was so enamored of sanctions as a weapon of mass intimidation that it extended the policy beyond the traditional response to hostile governments to target individuals who failed to show the US sufficient respect.

    This was a logical consequence of Trump’s vaunted “America First” policy. This translates as national interest first, international law last. In September 2020, Trump’s secretary of state, Mike Pompeo, singled out ICC prosecutor Fatou Bensouda for sanctions. He “announced a freeze on assets held in the US or subject to US law by Bensouda and the court’s head of jurisdiction, Phakiso Mochochoko.” Even Rodrigo Duterte, the thuggish Filipino president who unilaterally withdrew the Philippines from membership in the Rome Treaty after the ICC received a complaint of crimes against humanity resulting from his brutal and chaotic war on drugs, never imagined imposing sanctions on the chief prosecutor.

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    In other words, Trump’s initiative can only be considered extreme. Bensouda, whose job consists of carrying out investigations related to procedures of justice, complained of “unprecedented and wholly unacceptable threats, attacks and sanctions.” Appearing to sympathize, the Biden administration issued this statement: “Much as we disagree with the ICC’s actions relating to the Afghanistan and Israeli/Palestinian situations, the sanctions will be thoroughly reviewed as we determine our next steps.”

    Today’s Daily Devil’s Dictionary definition:

    Thoroughly review:

    Examine an abusive practice with the hope of finding a devious way to justify its continuation

    Contextual Note

    The word “review” literally means “to look at again.” When politicians use the term, they imply that they will take a more critical look at the issue under consideration with a view to engaging remedial action. This is especially significant at moments in history where one party or political personality has been replaced by another with a highly contrasted worldview. Biden has already taken steps to return to the essential international treaties Trump so casually abandoned, as well as undo the former president’s complicity with the murderous Saudi crown prince, Mohammed bin Salman. The Biden administration needs to show that it is free not just to review but to thoroughly overturn dangerous and sometimes criminal policies.

    Embed from Getty Images

    In reality, the promise to “thoroughly review” often serves a more devious purpose. It creates an expectation that whatever policy emerges — even if it is identical with that of the past — will be legitimized. Rather than remedy a mistake, it may stand as a ploy to seek a better argument in favor of perpetuating the effects of the mistake. Former President Barack Obama campaigned on the theme of ending the war in Iraq. After thoroughly reviewing it with the help of the Pentagon, he continued it.

    The question of the ICC is no ordinary political issue. It contains within it the very idea of justice and fairness that Americans like to see as the core of their “exceptional” ideology, a system of values that never tires of proclaiming its allegiance to the idea of “liberty and justice for all.” On that basis, it should be easy for the Biden administration to cancel Trump’s sanctions and apologize for his arrogance. In terms of PR, it provides a perfect pretext for a new president to demonstrate a willingness to correct the injustices of the past.

    But as with so many issues Biden has inherited from Trump, there is a hidden risk and potentially a serious embarrassment. By provoking the ICC, Trump shouted from the rooftops what previous presidents accomplished by whispering in private amongst themselves. The US has never demonstrated the intention of respecting the principles it so assiduously promoted when the victorious Allies launched the Nuremberg trials. The message those trials sent was that every nation on earth must answer the accusation of crimes against humanity and war crimes. The refusal to be judged by the legal criteria it uses to judge others may provide the best definition of the meaning of “American exceptionalism.”

    Because the nation that invented democracy “believes” with all its soul in everything that is good and just, it can never be held to account for being bad and unjust. At best, American individuals are sometimes guilty of a lapse of judgment, but the American nation as a whole is, as the song says, “a soul whose intentions are good.” Since “no one alive can always be an angel,” the nation feels justified pleading to the heavens, “Lord, please don’t let me be misunderstood.” 

    If Biden follows through and repeals Trump’s sanctions, the consequences could be serious. It would implicitly allow the ICC to pursue the complaints against both the US in Afghanistan and Israel with regard to Palestinians within its borders. Those were the two causes that prompted Pompeo to impose sanctions, citing the principle of national sovereignty. 

    That the US should defend Israel’s putative sovereignty — especially if it means shielding that nation from being prosecuted for war crimes — makes no serious legal sense. But it does reveal a basic truth about US foreign policy. If anything, the immunity the US claims for Israel can be compared with the principle in US law of someone who pleads the fifth amendment in a courtroom to avoid incriminating their spouse (“the spousal testimonial privilege”). Do both Trump and Biden consider the US and Israel a married couple?

    How far is Biden willing to go to undo Trump’s devilry? How much can he backtrack without exposing the US to the principle of universal justice? This is a serious quandary for a president who repeats in nearly every one of his speeches that the US must “not lead by the example of its power, but by the power of its example.”

    Historical Note

    Another issue has just emerged in the news cycle that also requires a thorough review. It concerns the production of semiconductors. The Verge offers this headline: “Biden signs executive order calling for semiconductor supply chain review.” American industry is facing a penury of chips, the essential component of nearly everything Americans buy these days (apart from fast food). From PCs and smartphones to cars, watches and refrigerators, chips rule the consumer economy. Will this be as “thoroughly reviewed” as the reconsideration of the ICC sanctions? It should be because it concerns a problem that affects the entire economy.

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    Not so long ago in recent history, the US was the world’s major manufacturer of semi-conductors. But because it became cheaper to outsource production to Asian nations, US manufacturers preferred to move their supply chain across the Pacific Ocean. Asia has since achieved a quasi-monopoly on semiconductor production.

    The Associated Press recently reported on the “widening global shortage of semiconductors for auto parts” that has forced “major auto companies to halt or slow vehicle production just as they were recovering from pandemic-related factory shutdowns.” The penury of semi-conductors could send an economy already battered by the pandemic into a tailspin. 

    This would be especially true if the Asian countries that produce more than 80% of the world’s and America’s supply were unable or unwilling to deliver. The entire question has evolved into something even more dire. Business Insider summarizes the dilemma in a headline: “The global chip shortage is hurting businesses and could be a national security issue.”

    It is not hard to imagine a war, even a limited war, breaking out between the US and China over navigation in the contested South China Sea or Chinese threats against Taiwan. In such an event, the US could potentially be starved of the supply of essential components required both for its military capacity and its consumer economy. The Biden administration must be aware of this and ready to review it. But once the review is completed, what can they do to remedy it? Not much, at least in the time frame that would be required to lead a military campaign.

    Rather than challenge China and risk alienating nearly all of Asia, the Biden administration can only hope to solve the problem of penury through cooperation and the recognition of interdependence, in contrast with the attitude of confrontation nurtured by Donald Trump. The Biden administration may be forced to engage a particularly “thorough review” on this issue.

    *[In the age of Oscar Wilde and Mark Twain, another American wit, the journalist Ambrose Bierce, produced a series of satirical definitions of commonly used terms, throwing light on their hidden meanings in real discourse. Bierce eventually collected and published them as a book, The Devil’s Dictionary, in 1911. We have shamelessly appropriated his title in the interest of continuing his wholesome pedagogical effort to enlighten generations of readers of the news. Read more of The Daily Devil’s Dictionary on Fair Observer.]

    The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More

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    Was the Bombing of Hiroshima and Nagasaki the Mother of All War Crimes?

    This year marks the 75th anniversary of the nuclear bombings of Hiroshima and Nagasaki. This is reason enough to mull over its meaning and its implications. In a recent article for Fair Observer, Peter Isackson has made a strong case that the annihilation of the two Japanese cities by American bombers represents the “mother of all war crimes.” Given the long history of atrocities committed during times of war, I find this a rather bold statement that should not go unchallenged.

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    The case for the defense rests on two claims. First, the demonstration of American nuclear capabilities heralded in a period of stability, which quite likely saved Western Europe’s nations from being overrun and conquered by the Soviet Union and subjected to its rule. Second, Hiroshima and Nagasaki are far from exceptional as war crimes go, if indeed the bombing of the two cities was a war crime at all.

    Balance of Terror

    In my younger years, in a very different world, I served for a couple of years in the German air force. I never flew a plane. I spent most of my time on duty in a tower close to the border to what at the time was the Czechoslovakian Socialist Republic (CSSR), a member of the Warsaw Pact and a satellite of the Soviet Union. We did electronic surveyance of the CSSR airspace, following Czech and Slovakian fighter planes as they performed their exercises as best as they could (more often than not they couldn’t, lacking basic motivation). It was a tedious job, boring as hell, particularly when the weather was bad and the pilots were grounded.

    Excitement, however, surged once a month, when we waited for the arrival of Russian long-range bombers. They took off from Minsk in what at the time was the capital of the Belarusian Soviet Socialist Republic. Their mission: attack the towers along the West German border with the CSSR and the German Democratic Republic. We saw them coming, small dots on our radar screens. When they were in front of our tower, there was a small red blip, a fleeting flicker, and we knew if this had been der Ernstfall — an actual real-life attack — we would all be dead, gone up in smoke in a small nuclear mushroom.

    At the time, we did not think much of what had just happened. It was part of a game, along the lines of MAD magazine’s “Spy vs Spy” — inane, a waste of time, and somehow not very real. It was not until the fall of the Berlin Wall, the collapse of the regime in Prague and the unraveling of the Soviet empire that we learned that the game had been much more serious and potentially deadly than what we suspected. There were plans on the other side of the border to overrun West Germany, conquer Western Europe and subject it to Soviet rule. Among the scenarios was a nuclear attack on Bonn, West Germany’s sleepy capital, designed to decapitate West Germany’s political elite.

    What prevented the Soviets and their toadies from carrying out their plans was not human compassion but a realist assessment of the distribution of military forces and the resolve of the Western allies to use them. At the time, this was called MAD — mutually assured destruction. It was grounded in the notion that any attack on the part of the Soviets would immediately trigger a full response of Western nuclear forces, resulting in the complete annihilation of the Soviet Union. The leadership in Moscow was fully aware of this logic. They did not like this “balance of terror,” but they ultimately submitted to its logic. Others, by the way, did not.

    Andrey Gromyko, the Soviet Union’s long-term foreign minister, claims in his memoirs that at one time, Chinese leader Mao Zedong tried to get the Soviet Union to launch a nuclear attack on the United States, arguing that “his country could survive a nuclear war, even if it lost 300 million people, and finish off the capitalists with conventional weapons,” thus guaranteeing the triumph of communism. Unsurprisingly, the Soviets were not convinced and increasingly distanced themselves from Beijing.

    The logic of mutually assured destruction fundamentally altered the behavior of great powers, at least with respect to each other. It is to be hoped that the logic of the “balance of terror” is going to be enough to keep the US and China level-headed in the future, despite rapidly growing tensions between the two.

    The Breakdown of Civilization

    Unfortunately enough, war crimes are the norm rather than the exception when it comes to armed conflict. The claim that Hiroshima and Nagasaki are ontologically different rests on a technological assumption. For some reason, nuclear weapons are fundamentally different from conventional ones. I am not sure what constitutes the basis of this assumption. Take the firebombings of the German cities of Dresden and Hamburg during the Second World War, which cost the lives of tens of thousands of ordinary people — women, children, the elderly. Take the massacre of Babi Yar, in Ukraine, where in two days nearly 34,000 Jews were killed by German Einstazgruppen. Or, going back further in history, take the death toll during the Thirty Years War, which cost the lives of half of the population of what is today Germany.

    Massacres of the most atrocious form are hardly an invention of the 20th century, as Goya’s renditions of the barbarities visited on his fellow countrymen during the war against the French between 1808 and 1814, depicted in most horrifying detail. This was a war against an enemy that invaded the country in the name of the Enlightenment and revolutionary fervor. Or, as the Germans would say, Und willst du nicht mein Bruder sein, so schlag ich dir den Schädel ein — If you don’t want to be my brother, I will smash your skull.

    For the victims of war crimes — more often than not civilians — it probably does not really matter how they were killed and why they were killed. It is quite understandable — human all too human, as Nietzsche would say — that horrendous deeds provoke retribution. The firebombing of German cities, the rape of German women caught be advancing Soviet armies — both are understandable given the atrocities committed by Germans during the war, in the name of Hitler and the Third Reich. Most Germans, or so most recent research suggests, were more than comfortable supporting a regime that guaranteed them a modicum of prosperity. Few asked where it came from.

    For that, Germans were punished in the most horrendous fashion. Berlin, Hamburg, Dresden and Cologne and many other towns and cities went up in flames, leaving behind a landscape hardly different from Hiroshima and Nagasaki. The bombing of Hamburg was named Operation Gomorrah, after the Biblical city destroyed by “sulfur and fire” for its sins, and, according to historian Keith Lowe, was on completely different level than the German raids on Coventry and London, “comparable with what happened in Nagasaki.” It was a just retribution for the crimes committed in their name, a retribution for the tens of millions of victims who paid with their lives for Hitler’s ambitions to conquer the world.

    Embed from Getty Images

    I would suggest that the annihilation of Hiroshima and Nagasaki was the retribution for the crimes committed by Japanese forces, in the name of racial superiority hardly different from Nazi ideology, against the peoples subjugated during the war. I have grave doubts that the victims of the Nanjing massacre or of the hundreds of young Asian “comfort women” pressed into sexual slavery by Japanese forces would consider the destruction of Hiroshima and Nagasaki a war crime, but rather than an act of just retribution for Japanese atrocities committed during the war.

    Whether or not the United States was justified in meting out redistribution is a different question. After all, given America’s self-declared status as a leading Christian nation, it should perhaps have heeded the words of the Bible exhorting believers not to take revenge, “but leave room for God’s wrath, for it is written: ‘It is mine to avenge; I will repay,’ says the Lord” (Romans 12:19). But then, Americans have a tendency to pay lip service to the scripture while doing the opposite in real life.

    The bombing of Hiroshima and Nagasaki was one of these turning points in history that define a whole epoch. It demonstrated, once and for all, humanity’s ability to destroy itself. Had Hitler been in a position to get hold of “the bomb,” he surely would have used it to obliterate London, Moscow, perhaps even New York. The same goes for Stalin, only this time it would have been Berlin that would have gone up in a mushroom. If the bombing of Hiroshima and Nagasaki was a war crime, it was nothing more than another episode in a long history of atrocities committed in the course of wars, not more, not less — an episode which reaffirms once again the sad reality that the veneer of civilization is merely skin deep.

    The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy. More

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    Senior ICC judges authorise Afghanistan war crimes inquiry

    Decision overturns earlier rejection of request to examine actions of US soldiers Senior judges at the international criminal court have authorised an investigation into alleged war crimes and crimes against humanity in Afghanistan, overturning an earlier rejection of the inquiry. The ICC investigation will look at actions by US, Afghan and Taliban troops. It is […] More