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Is there a court, with jurisdiction, to try this crime?
Are criminal actors shielded from that jurisdiction?
Will judges concoct excuses? to evade trying the case?
A prima facie crime by the judge?
A criminal complicity in the crime s/he won’t try?
Incitement and facilitation of future crimes?
As watching government officials breathe a sigh of relief (the dark forces)?
And other government officials, a sigh of disappointment? That they have no protector, no basis to refuse, no choice, but to continue their complicity too, into the future, to save their jobs?
For many decades, the U.S. evaded its legal obligation {ICRC commentary} to implement the “grave breaches” enforcement provisions of the 1949 Geneva Conventions.
During this period, U.S. military people could be prosecuted in U.S. military courts (for those and any other war crime), but not the king pins, the main actors, the dark political forces calling the shots, members of Congress, and other civilian government officials.
This refusal was an important cog in the legal structure of the U.S. empire.
U.S. officials, contractors, agents, operatives, and all their complicit entourage of government officials, they could wage violent crime all around the world knowing, no U.S. court had jurisdiction to try their crimes, even if a big surprise happened, i.e., even if an honest U.S. Attorney General was appointed, determined to prosecute them.
With the adoption of the U.S. War Crimes Act, that changed (August 21 1996).
At least for some of their violent crimes.
Now, there’s a court with jurisdiction to try them, if the big surprise happens.
This big surprise is a very unlikely prospect, given the grip of U.S. elites in Washington D.C., of both political parties, secure in their grip, as most of them (by agreement among them all) are on the many secret U.S. taxpayer payrolls, whether they be in office or not, at any particular time.
An unlikely prospect.
Yes.
But yet, a prospect still.
Nonetheless.
Awaiting a bold candidate.
With an unequivocal promise.
And voters to back him, or her.
At the polls.
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Picture this:—
Your government passes a law, which says:
“Armed robbery is a crime.”
And, your government also passes another law:
“The courts of this government have no jurisdiction to try the crime of armed robbery.”
Is armed robbery a crime?
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This is what Adolf Hitler did.
It was as simple as that.
He wanted to do what he wanted to do.
So he surrounded himself with lawyers.
And they made it look legal:
They adopted laws and executive orders, which prohibited criminal indictments, and civil suits for damages, in the normal German civilian courts, against his criminal gang, and the vast forces they commanded, virtually the whole of the government, and their quasi- and non-governmental operatives: Police, internal security (Gestapo), intelligence, army (Wehrmacht), his political party (Nazis: National Socialists), its officials and operatives, and such.
They created special courts, for these folks (to make it look respectable, and to make them afraid to disobey orders), and required consent from a gang-leader, for any investigation, and for any prosecution, by a special investigator/prosecutor.
What many people did were crimes, under normal German law.
But, so what:—
They were immune from prosecution.
They painted the German courts out the picture.
German society had no peaceable remedy, no deterrent, to protect them, from their own government.
It was a big enterprise, to be sure, converting the power sectors, of the German government, into criminal enterprises. It took time and patience, to replace heads of agencies, with people who thought in the right way.
German law enforcement, the tens of thousands of honorable police, civil servants, state and federal, who would normally be investigating, prosecuting, and thereby deterring such crimes:—
They too were painted out the picture.
Their authority was terminated, to investigate, to prosecute, any member of a government criminal enterprise.
A task which anyway takes uncommon courage, a secure tenure, steadfast backers to stand with them, and so is rarely seen, in any government in the world.
German law enforcement busied themselves instead on routine crimes, and stayed well clear of the dark forces, except to play their small role, arresting people, and handing them over for others to deal with, in ways they didn’t want to know.
• Details: The Justice Case, 3 N.M.T. 1-1236 (U.S. Military Tribunal 3, Nürnberg Germany, trial, 5 March-October 18, judgment, December 4, 1947), volume 3 (1951, 31+1236 pages), Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (“Nuernberg, October 1946–April 1949”) (15 volumes, U.S. GPO, Washington D.C., 1949-1953) (“the green series”) {SuDoc: D 102.8, ditto, LCCN: 49045929, 97071903, OCLC: 12799641, UC, WorldCat}, volume 3 {24.69mb.pdf, source}.
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This, is what “ensuring jurisdiction” is about.
If we’re going to have a crime, let’s don’t pretense to have it, by prohibiting prosecutions of it.
And thereby make ourselves a Hole-in-the-Wall.
A refuge, for gangs of violent criminals.
Loose coalitions, of dark, powerful, forces.
With a grip, on sectors of government power.
A hole-in-the-wall gang.
A target.
For law enforcement officers, from other lands.
To do our duty for us.
To attack us.
To suppress our violent crimes.
The violent crimes of the hole in the wall gang.
Which we aid and abet, and facilitate.
Instead of suppress, and prosecute.
Let’s make the crime enforceable.
And give those violent criminals no place to hide.
Then, maybe, they’ll give up their life of crime, and turn their hand to some decent work, instead.
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At long last, do the U.S. federal district courts now have jurisdiction, to try this particular violent war crime?—
Israel’s confiscations of land and water in the occupied Palestinian territories.
And also in Syrian/Lebanon occupied territory: the Golan Heights (32 Israeli settlements) and Shaba Farms.
Jurisdiction to try these criminal indictments?—
Against “the hole in the wall gang”?—
U.S. nationals, for example.
For their criminal complicity, in this particular violent international war crime.
Do we now need only an honest prosecutor?
To end this massive violent criminal enterprise.
Or will that prosecutor yet lack a court?
To try the case.
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The U.S. War Crimes Act extends jurisdiction to the U.S. federal district courts to try war crimes.
But all war crimes?
Like the U.S. military courts can try?
Or only a few:
18 U.S.C. § 2441. War crimes ...
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or {this paragraph replaced by the following paragraph, effective October 17 2006}
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or
* * * 
All war crimes?
By no means.
And so, any congressional hearing about it, and any Act of Congress appointing an independent prosecutor, to prosecute this particular war crime:—
Those congressional proceedings must also ensure, at the same time, the jurisdiction of the U.S. federal district courts is amended, if needs be, to empower those courts to try those indictments.
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But do U.S. federal courts already have that jurisdiction?
Let’s start with the obvious, Hague-4 annex 23(g):
“Section II: Hostilities ...
[Annex] Article 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden ...
(g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war; ...”
Hague-4 {source, copy}: Convention Respecting the Laws and Customs of War on Land, annex, “Regulations respecting the laws and customs of war on land” (The Hague, October 18 1907).
Yes.
The U.S. War Crimes Act cites that annex article 23.
And, that annex article 23 appears to cover this particular violent war crime (Israeli confiscations of Palestinian land and water).
But not so, according to the world’s highest court.
The 15-judge U.N. I.C.J. asserted, in its advisory opinion about the wall, that annex article 23(g) does not now apply in the occupied Palestinian territory, because international hostilities long ago ceased.
Israel has been a belligerent occupier for more than 4 decades (since 1967) and so, the court said, the occupation provisions of Hague-4 have long-since applied instead (and other treaties and international laws):
“124. With regard to the Hague Regulations of 1907, the Court would recall that these deal, in Section II, with hostilities and in particular with “means of injuring the enemy, sieges, and bombardments”. Section III deals with military authority in occupied territories. Only Section III is currently applicable in the West Bank and Article 23 (g) of the Regulations, in Section II, is thus not pertinent.”
Is this good news for the U.S. war-party?
Do they now finally have their cash reward?
Can the U.S. now legally confiscate Iraq’s oil fields?
International hostilities long ago ceased, when the U.S. defeated Saddam’s forces, and instituted its occupation regime (in 2003).
OK, it would have been criminal to confiscate during those international hostilities.
But that’s ancient history, long done with.
Now, is what we want to know about.
Has the I.C.J. flashed the green light?
Can the U.S. now legally seize its war booty?
Plunder Iraq’s oil.
To its heart’s content?
Hardly.
But hardly too, will U.S. federal courts try an indictment charging Israel’s violent criminal enterprise of confiscations, that it violates Hague-4 annex 23(g).
It’s a violent crime, yes.
But not because of 23(g).
So says the U.N. I.C.J.
And that’s likely good enough for a U.S. federal district court, to quash any such indictment.
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So, if it’s a violent crime, what law says it’s so?
This law says it’s so:
Section III: Military authority over the territory of the hostile state ...
[Annex] Article 46. ... Private property cannot be confiscated.”
Hague-4 {source, copy}: Convention Respecting the Laws and Customs of War on Land, annex, “Regulations respecting the laws and customs of war on land” (The Hague, October 18 1907).
This is occupation law.
From the Hague-4 annex, section III, which deals with occupation, not hostilities.
The International Court of Justice held (above), this very Section III applies, to the conduct of Israel, in the occupied Palestinian territories.
The International Military Tribunal held, a violation of annex article 46, in that very Section III, is a war crime:
{253} “[T]he crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law.
They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles ... of the Geneva Convention of 1929.
That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument. ...
[B]y 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter.”
International Military Tribunal, judgment (September 30–October 1 1946), 1 I.M.T. 171-341, at 253-254 {copy} {16.5mb.pdf, source}, further cited above.
So.
Does Congress permit U.S. federal district courts to try this particular war crime?
A violation of Hague-4 annex article 46?
No.
The U.S. War Crimes Act (above) does not mention that article.
Nor article 55 which says what the occupying power can do with public property, and therefore says by implication what it can not do (confiscate it, expel locals, import settlers, sell it).
Nor “the laws and customs of war,” which apply without regard to any treaty.
So, we have a violent crime.
But no court to try it.
Adolph Hitler would surely chuckle, at his legacy.
And so too, the hole in the wall gang.
The many U.S. nationals, complicit in Israel’s crime.
They can chuckle too.
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Well then, this law says it’s so, too:
“Article 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: ... extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” {ICRC commentary}
• Geneva-4 (civilians): Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, August 12 1949), further cited above.
Yes.
The U.S. War Crimes Act cites the “grave breaches” of the four 1949 Geneva Conventions, and that includes this particular grave breach, in the fourth treaty.
And yes, this crime appears to describe most of what Israel has confiscated in the occupied Palestinian territories.
So yes, Congress permits the U.S. federal district courts to try criminal indictments asserting that particular war crime.
Granted, Geneva-4 has strings attached, which Hague-4 does not, “extensive,” “carried out unlawfully and wantonly.”
Hague-4 purports to outlaw any confiscation, extensive or not, carried out wantonly or not, it doesn’t matter.
And so, this Geneva-4 “grave breach” encompasses less than all what Hague-4 outlaws.
Does Geneva-4 repeal Hague-4?
Does Geneva-4 legalize confiscations?
Which are not “extensive”?
Which are not “wanton”?
A little bit of armed robbery is OK?
Just don’t get too greedy?
Hardly.
Geneva-4, explicitly, does not repeal any part of Hague-4:
“Article 154. In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of July 29, 1899, or that of October 18, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections II and III of the Regulations annexed to the above-mentioned Conventions of The Hague.” {ICRC commentary}
• Geneva-4 (civilians): Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, August 12 1949), further cited above.
Hague-4 has no strings attached.
To legalize a little bit of armed robbery.
Under Hague-4, every single act of armed robbery, by the belligerent occupier (property confiscation not justified by military necessity), or by it’s puppet governments, or by its citizens, or by any other group it permits to operate in the territory it occupies:—
Every single such act is a war crime.
No exceptions.
If Hague-4 doesn’t legalize it, then confiscations remain a violent crime, namely, armed robbery.
So it appears to me.
And I never heard any court say differently.
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Why don’t the 1949 Geneva Conventions define all war crimes as “grave breaches”?
These treaties are about particular facets of war and do not purport to restate the whole of the laws of war.
But, having gathered together, in a gigantic conference, about war, they took the opportunity to state a few basic war crimes, in the aftermath of the Nuremberg trials (1945-1949).
The 1949 conventions, for example, do not cover targeting, or belligerent occupation, except incidentally.
But Hague-4 deals with both, targeting and occupation, and remains in force, side by side with the Geneva Conventions, both as a treaty and, separately, as evidence of “the laws and customs of war” binding on all non-treaty countries too (like Israel).
The Geneva “grave breaches” are a component of a regime of international cooperation, extradition, international obligations, and such.
A bold new idea, in 1949.
A toe in the water, a brick in the wall, of a future world view, which may yet be, but may never be.
They established a framework, of international cooperation, to enforce the criminal laws of war.
A bold initiative, which surely would have floundered, politically, had they demanded a task beyond the capacity of mankind, and also reached deep, into the citizenry of many nations:—
Prosecution/extradition of every last war criminal, for every last war crime, and every last person complicit in those crimes.
They settled for the ring leaders, the main actors, and some headline crimes.
They couldn’t undo the past.
But they wanted deterrence, against future crimes.
Deterrence with teeth.
I haven’t read the transcripts/reports of their proceedings, to know the subtleties, the whys and wherefores, of the Geneva Conventions, their “grave breach” regime.
It doesn’t seem to much matter, for present purposes.
Geneva-4 appears to criminalize much, or even all, confiscations of Palestinian land and water, in the occupied territories, by Israel, and by private parties Israel protects.
And the U.S. War Crime Act authorizes U.S. federal district courts to try indictments for those crimes.
____________________
Indicting whom?
Who can be prosecuted, under the U.S. War Crime Act?
The king pins? The criminal gang? Who set this violent criminal enterprise in motion?
Israeli government officials? Past and present?
The U.S. State Department can ensure, the U.S. Immigration Service welcomes them entry into the U.S., on a regular passport.
So they can be promptly arrested.
And deny them entry, on a diplomatic passport.
But did Congress shelter them, immunize them, to wage their violent crimes, against the Palestinians.
Congress permits prosecution only of U.S. nationals, and others in the U.S. military, and nobody else, under the War Crimes Act, but also anybody else, if a victim be one of those people.
In this case, an owner of some confiscated property, for example, might be a U.S. national.
If so, then Israeli officials can presumably be prosecuted, under this law, for that particular confiscation, but presumably not for others.
18 U.S.C. § 2441. War crimes
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
18 U.S.C. § 2441(a)-(b) (August 21 1996, as amended November 26 1997) (legislative history), citing, the definition of “national of the United States,” now codified at 8 U.S.C. § 1001(a)(22).
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When appointing an independent prosecutor, Congress should dispel all doubts and resolve all uncertainties.
Congress should, at the same time, amend that law, to permit prosecution of anyone the U.S. government can get its hands on (not just U.S. nationals), including Israeli government officials, past and president.
And, if there be any doubt about it, Congress should make clear, that full complicity is included: Not just those who personally committed the crime, or those who ordered it, but all the rest too, who are complicit in it, those who conspired, incited, aided and abetted, facilitated.
And, Congress should add, to the list, Hague-4 annex articles 46 and 55, and “the laws and customs of war” pertaining to confiscations as interpreted by the Nuremberg tribunals.
And thereby enable criminal prosecution for every last inch of confiscated occupied Palestinian territory.
No exceptions.
And so, eliminate distractions, about what the Geneva-4 strings mean (“extensive,” “wanton,” and such).
It’s not for Congress to redefine this crime, to tinker with its definitions.
Many of the criminal confiscations are in the past.
These crimes are long since defined, settled, criminal law, at the time Israel did its confiscations, with its many complicit U.S. helpers.
And their crimes continue, into the present day.
All Congress needs to do is authorize the court to try this crime in full, with no strings attached, and appoint and fund an independent prosecutor to do the work, beyond the reach of the Israel lobby.
And all the U.S. voters need to do, is vote for candidates for Congress, candidates who promise to do precisely that.
{draft in progress}
Ehud Olmert:
