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International Criminal Court election could facilitate reset with US

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The election of Joe Biden (pictured) opens the door to a reset of US relations with Europe.  But Europe also has obstacles it can and should remove.  The recently postponed election of a new International Criminal Court (ICC) prosecutor provides one important such opportunity, writes Orde Kittrie.

The ICC was created as a court of last resort for prosecution of the most serious international crimes, in cases where countries were unable or unwilling to investigate themselves.  However, the current ICC prosecutor, Fatou Bensouda, has chosen to pursue politicized investigations of the US and Israel, two non-members of the ICC, for alleged war crimes which they have both thoroughly examined.

The ICC is based in the Hague and funded predominantly by European governments.  Many European officials slammed the Trump administration for imposing financial sanctions on Bensouda (and one of her aides) in response to Bensouda’s moves against the U.S. and Israel.

The Biden administration will differ from the Trump administration only over how, not whether, the US should oppose the ICC investigations of the U.S. and Israel.  These ICC investigations have been rejected as illegitimate by former Obama Administration officials in charge of ICC and detainee issues and by over 330 Members of Congress from both parties, as well as by the Trump Administration.  As a result, any fundamental reset of U.S. relations with the ICC will depend on how the next ICC prosecutor chooses to handle the two investigations.

Bensouda is reaching the end of her non-renewable nine-year term.  Her replacement was to be elected by the 123 ICC member countries at their meeting this week.  The election was, at the last minute, postponed for at least a month, reportedly because the ICC member countries could not reach the hoped-for consensus on a candidate.

As a non-member, the US doesn’t have a vote in the ICC election.  However, in recent years, European countries – led by Germany, the UK, France, Italy, and Spain – have provided more than half of the ICC’s budget.  Many of them have military personnel, stationed abroad, who could be negatively impacted by precedents set during an ICC prosecution of U.S. or Israeli troops.  They should use this extra month to build support for a candidate who will clean up the ICC and restore it to its core mission.

Bensouda’s politicized investigations of the US and Israel have not been the only problematic aspects of her tenure as the ICC prosecutor since 2012 and as its deputy prosecutor from 2004 to 2012.  Since the ICC began in 2002, it has spent some $2 billion to achieve a paltry eight convictions (just four of them for major crimes).

The recently-published final report of an Independent Expert Review of the ICC, commissioned by the ICC member states, criticized the ICC’s current pursuit of too many cases, including some with “limited feasibility” and insufficient “gravity” (apparent references to the investigations of the US and Israel).  The Review concluded that “the current situation is unsustainable having regard to the limited resources available.”

The Independent Expert Review also notes that the ICC is plagued by bullying and sexual harassment.  In a 2018 survey, half of ICC staff said they had been victims of discrimination, sexual harassment, or other abuse. “In the experts’ assessment,” said the Review, “there is a general reluctance, if not extreme fear, among many staff to report any alleged of misconduct or misbehaviour by . . . a senior official.  The perception is that they are all immune.”

Bensouda’s replacement should refocus the ICC on its core judicial mission, reset its relations with the U.S., and remedy the ICC’s own serious management problems.  In contrast, the election of at least one of the leading candidates would make a US-ICC reset impossible, boxing Biden in even before he takes office.

The worrisome top candidate is Fergal Gaynor, currently a leading external advocate of the ICC cases against the US and Israel.  A Gaynor victory would inevitably accelerate the cases.

The stakes in this little-noticed ICC election are high for both US and Israeli security.  The Military Coalition, representing more than 5.5 million current and former US service members, has warned that the ICC investigation of alleged U.S. war crimes relating to Afghanistan “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.”  Meanwhile, the Israeli government has reportedly prepared a list of several hundred current and former Israeli officials, including Prime Minister Benjamin Netanyahu and alternate prime minister Benny Gantz, who could be subject to arrest abroad if the ICC moves forward against Israel.

Leading American officials and experts have opposed the investigations as illegitimate for several reasons.  Bill Lietzau, a Deputy Assistant Secretary of Defense for Detainee Policy under Obama, has described how a dozen different US government investigations thoroughly reviewed the allegations, currently before the ICC, that military or CIA personnel tortured detainees. According to Lietzau, the US investigated  “every allegation of abuse for which there is credible information” and “no country has ever self-investigated or self-reported its detention policies and practices more than the United States.”

In addition, former Ambassador Stephen Rapp, who served as Obama’s ICC point person from 2009 to 2015, asserted that the allegations against U.S. personnel in Afghanistan are not legally admissible in the ICC because “the U.S. had undertaken domestic accountability processes” and “the allegations against Americans did not reach the gravity threshold.”  The ICC charter specifies that a case is “inadmissible” when “the case is not of sufficient gravity.”

In the separate ICC case involving Israel, Bensouda has claimed ICC jurisdiction over alleged Israeli war crimes because they occurred in the Palestinian Authority, which has purported to join the ICC as a state.  However, Rapp and former Ambassador Todd Buchwald, Rapp’s successor as Obama’s ICC point person, made a detailed joint submission to the ICC in March 2020 in which they explained why the Prosecutor’s reasoning that Palestine qualified as a “state” under the treaty was “fundamentally flawed.”  Several European and other governments, including Germany’s, made similar submissions asserting that the ICC “does not have jurisdiction” to proceed against Israel in this case.

In May 2020, 262 House members from both parties asserted that the ICC does not have “legitimate jurisdiction” in the two cases and urged that the ICC “cease its politically motivated investigations into the United States and Israel.”  That same month, 69 Senators from both parties asserted that the ICC does not have “legitimate jurisdiction” in the Israel case and opposed that case’s “dangerous politicization of the Court.

The ICC recently closed its examination of alleged war crimes by UK personnel, on the grounds that the UK carried out its own “genuine” investigations of the allegations.  A similar halt to the ICC investigations of the U.S. and Israel is necessitated by their own robust investigations, and consistent with the Independent Expert Review’s assessment that the ICC’s current pursuit of too many cases with “limited feasibility” and insufficient “gravity” is “unsustainable”.

Such a halt is essential if the ICC is to once again benefit from the invaluable cooperation which it received from the US during the Obama administration.  This cooperation, pivotal for several of the ICC’s rare successes, included a US vote at the Security Council to refer the situation in Libya to the ICC, transferring a Congolese ICC indictee from U.S. to ICC custody, and the US offering rewards for information leading to the arrest of other ICC indictees.   In light of the bipartisan American view that the ICC investigations of the US and Israel are illegitimate, it is hard to imagine the Biden administration resuming such cooperation so long as the investigations continue.

The ICC has strayed far from its worthy founding objectives.  The close US allies who are its leading funders should seize the opportunity, provided by the upcoming ICC election, to clean up the ICC and restore it to its core mission.

Orde Kittrie is a senior fellow at the Foundation for Defense of Democracies, a nonpartisan research institute focusing on national security and foreign policy. He is also a law professor at Arizona State University, and previously served as a US State Department attorney. Follow him on twitter @OrdeFK

 

 

EU

7th EU-Kazakhstan High-Level Business Platform focused on transition to low-carbon and green technologies

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The EU-Kazakhstan High-Level Platform of dialogue on economic and business matters (Business Platform) held its 7th meeting in Nur-Sultan on 11 June, chaired by Prime Minister Askar Mamin.

The event brought together representatives of business and EU Heads of Mission led by the Ambassador of the EU to the Republic of Kazakhstan, Sven-Olov Carlsson. Visiting EU Special Representative for Central Asia Ambassador Peter Burian joined the event.

The High-level Business Platform complements the technical dialogue between the EU and Kazakhstan within the Enhanced Partnership and Cooperation Agreement, in particular the Cooperation Committee in Trade Configuration, which took place in October 2020.  

The EU has committed to climate neutrality by 2050 and is fully translating the implementation of the Paris Agreement into legislation. Ambitious targets and decisive actions demonstrate that EU is and will remain to be a global leader in the transition to green economy. The climate challenge is inherently global, the EU is only responsibly for approximately 10% of all global Greenhouse Gas emissions. The EU expects from its partners to share a comparable level of ambition to fight climate change and is ready to deepen co-operation with Kazakhstan in this area, including exploring new opportunities for trade and investment.

The recent EU-Kazakhstan Cooperation Council welcomed the progress made in the framework of the Business Platform chaired by the Prime Minister Mamin. The Platform acknowledges the importance of the EU in Kazakhstan's external trade, and discussions on a range of issues contribute to attract more investment in Kazakhstan.

Background Information

The EU-Kazakhstan Enhanced Partnership and Cooperation Agreement (EPCA), fully in force from 1 March 2020, aims at creating a better regulatory environment for businesses in areas such as trade in services, establishment and operation of companies, capital movements, raw materials and energy, intellectual property rights. It is a tool of regulatory convergence between Kazakhstan and the EU, with some “WTO plus” provisions, notably on public procurement. Even in a year as difficult as 2020, the EU has consolidated its position as Kazakhstan’s first trade partner and first foreign investor, and Kazakhstan remains the main trade partner of the EU in Central Asia. Total EU-Kazakhstan trade reached €18.6 billion in 2020, with EU imports worth €12.6bn and EU exports €5.9bn. The EU is by far Kazakhstan's first trading partner overall, representing 41% of total Kazakh exports.

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Belgium

Iranian Opposition rally in front of US embassy in Brussels to ask US and EU for a firm policy towards Iranian regime

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Following the G7 summit in London, Brussels hosts the NATO summit with US and EU leaders. It is the first trip of President Joe Biden outside the US. Meanwhile, the Iran deal negotiations have started in Vienna and despite the international efforts to return Iran and the US to compliance with the JCPOA, Iranians regime showed no interest to return to its commitments under JCPOA context. In the recent IAEA report, important concerns have been raised that the Iranian regime failed to address.

The Iranian diaspora, supporters of the National Council of Resistance of Iran in Belgium, held a rally today (14 June) in front of the US embassy in Belgium. They held posters and banners with the picture of Maryam Rajavi, the leader of the Iranian opposition movement who has declared a non-nuclear Iran in her 10-point plan for the free and democratic Iran.

In their posters and slogans, Iranians asked the US and the EU to work harder to hold the mullahs’ regime accountable for its human rights violations too. The protesters emphasized the need for a decisive policy by the US and the European countries to harness the mullahs’ quest for a nuclear bomb, stepped up repression at home, and terrorist activities abroad.

According to the new IAEA report, despite the previous agreement, the clerical regime refuses to answer IAEA questions on four disputed sites and (to kill time) has postponed further talks until after its presidential election. According to the report, the regime's enriched uranium reserves have reached 16 times the limit allowed in the nuclear deal. The production of 2.4 kg of 60% enriched uranium and about 62.8kg of 20% enriched uranium are of grave concern.

IAEA Director-General Rafael Grossi said: Despite agreed terms, “After many months, Iran has not provided the necessary explanation for the presence of the nuclear material particles…We are facing a country that has an advanced and ambitious nuclear program and is enriching Uranium very close to weapons-grade level.”

Grossi’s remarks, also reported by Reuters today, reiterated: “The lack of clarification of the agency’s questions regarding the accuracy and integrity of Iran’s Safeguard Declaration will seriously affect the agency’s ability to ensure the peaceful nature of Iran’s nuclear program.”

Maryam Rajavi (pictured), the President-elect of the National Council of Resistance of Iran (NCRI), said that the recent report of the International Atomic Energy Agency (IAEA) and the remarks by its Director-General once again show that to guarantee its survival, the clerical regime has not abandoned its atomic bomb project. It also shows that to buy time, the regime has continued its policy of secrecy to mislead the international community. At the same time, the regime is blackmailing its foreign interlocutors into lifting sanctions and ignoring its missile programs, export of terrorism, and criminal meddling in the region.

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Brexit

Ex-EU Brexit negotiator Barnier: UK reputation at stake in Brexit row

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Head of the Task Force for Relations with the UK, Michel Barnier attendsthe debate on EU-UK trade and cooperation agreement during the second day of a plenary session at the European Parliament in Brussels, Belgium April 27, 2021. Olivier Hoslet/Pool via REUTERS

Michel Barnier, the European Union's former Brexit negotiator, said on Monday (14 June) that the reputation of the United Kingdom was at stake regarding tensions over Brexit.

EU politicians have accused British Prime Minister Boris Johnson of not respecting engagements made regarding Brexit. Growing tensions between Britain and the EU threatened to overshadow the Group of Seven summit on Sunday, with London accusing France of "offensive" remarks that Northern Ireland was not part of the UK. Read more

"The United Kingdom needs to pay attention to its reputation," Barnier told France Info radio. "I want Mr Johnson to respect his signature," he added.

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