The American Hypocrisy on ICC

US Rejects Court on Own Afghan War Crimes, But Seeks Its Support Against Russia
The premises of the International Criminal Court in Hague, Netherlands.

The Americans' deep anger, official and popular, because of the Russian invasion of Ukraine, has been leading to: first, decisions to send heavy arms to Ukraine to liberate “every inch’ of its territory; second, increasing sanctions on Russia to make it “suffer forever;” and, third, taking Russia to the International Criminal Court (ICC).

But the last point has been controversial among politicians, academics and the military.

While many pointed to the hypocrisy of the US for not being a member of the court, and for imposing sanctions on the court for investigating the US crimes in Afghanistan (and other countries), others argued that the hypocrisy was less important than punishing Russia.

But from the beginning, the US had been ambivalent – if not opposed – to the ICC.

In 2000, President Bill Clinton reluctantly signed the Rome Statute (the treaty that created the ICC)  during his final days in office. That was because he was faced by strong opposition in the Congress, mostly from Republicans. There was concern about “politicized” court prosecutors, and that the court might have jurisdiction over U.S. personnel, particularly the military.

In 2001, freshly voted into the White House, President George W. Bush “unsigned” the treaty.

In 2016, even before he became president, Donald Trump, during the election campaign, insulted the ICC for just doing the preparatory work of looking into the US crimes in Afghanistan. When he became president, he levied sanctions — usually reserved for those who violate international law rather than those who enforce it — on then Chief Prosecutor Fatou Bensouda and other ICC personnel.

Although what Bensouda did was merely to be authorized to start her job and  the authorization addressed not only the US crimes, but also about the ones committed by the Taliban.

John Bolton, in his first major address as Trump’s National Security Advisor, attacked the ICC for “lacking authority to exercise jurisdiction over crimes that have disputed and ambiguous definitions.”

The ICC, said Bolton, is "superfluous" given that "domestic judicial systems already hold American citizens to the highest legal and ethical standards."

He added that the US would do everything "to protect our citizens" should the ICC attempt to prosecute US servicemen over alleged detainee abuse in Afghanistan.

In that event, ICC judges and prosecutors would be barred from entering the US, their funds in the U.S. would be sanctioned, and the US "will prosecute them in the US criminal system”.

Bolton also criticized Palestinian efforts to bring Israel before the ICC over its human rights abuses in the West Bank and Gaza

Following are two opposite opinions, derived from their authors’ tweets, websites and statements to the media.

On one hand, “Americans are rightfully horrified by Mariupol. But most of us don't even know what the U.S. did in Mosul or Raqqa,” argued Medea Benjamin, co-founder of CODEPINK, a women-led human rights organization, and the Green Party candidate in California in 2000 for the US Senate.

On the other hand, “Hypocritical, but OK, “argued Oona Hathaway, a professor of law and political science at Yale University, and co-author of a book, “The Internationalists: How a Radical Plan to Outlaw War Remade the World.”

Medea Benjamin: “Mosul and Raqqa”

“Will Russia's war crimes in Ukraine convince the U.S. to consider its recent past?

Americans are rightfully horrified by Mariupol. But most of us don't even know what the U.S. did in Mosul or Raqqa …

Medea Benjamin

Americans have been shocked by the death and destruction of Russia's invasion of Ukraine, filling our screens with bombed buildings and dead bodies lying in the street. But the U.S. and its allies have waged war in country after country for decades, carving swathes of destruction through cities, towns and villages on a far greater scale than has so far disfigured Ukraine …

As was recently reported, the U.S. and its allies have dropped more than 337,000 bombs and missiles, or 46 per day, on nine countries since 2001 alone.

Senior U.S. Defense Intelligence Agency officers told Newsweek that the first 24 days of Russia's bombing of Ukraine was less destructive than the first day of U.S. bombing in Iraq in 2003 …

U.S. military officers told Amnesty International that the U.S. assault on Raqqa in Syria was the heaviest artillery bombardment since the Vietnam War.

Mosul in Iraq was the largest city that the United States and its allies reduced to rubble in that campaign, with a pre-assault population of 1.5 million. About 138,000 houses were damaged or destroyed by bombing and artillery, and an Iraqi Kurdish intelligence report counted at least 40,000 civilians killed …

While Western leaders are demanding that Russia be held accountable for war crimes, they have raised no such clamor to prosecute U.S. officials.

Yet during the U.S. military occupation of Iraq, both the International Committee of the Red Cross (ICRC) and the UN Assistance Mission to Iraq (UNAMI) documented persistent and systematic violations of the Geneva Conventions by U.S. forces …

Americans are rightfully horrified when they see civilians killed by Russian bombardment in Ukraine, but they are generally not quite so horrified, and more likely to accept official justifications, when they hear that civilians are killed by U.S. forces or American weapons in Iraq, Syria or Gaza.

The Western corporate media play a key role in this, by showing us corpses in Ukraine and the wails of their loved ones, but shielding us from equally disturbing images of people killed by U.S. or allied forces …”

Oona Hathaway: “Hypocritical, But OK”

“Is it hypocritical for the United States to embrace a court it has so aggressively rejected in the past?

Perhaps so. But that doesn’t change the fact that the United States is surely right to support accountability for the horrific crimes being committed in Ukraine …

Oona Hathaway

There is no getting around the charge of hypocrisy. But supporting the ICC now would provide some measure of justice to the people of Ukraine, who continue to suffer in Russia’s illegal war.

That goal is more important than a foolish consistency …

There is certainly little prospect that the United States will formally join the body, because of the following:

First, the US is not going to reverse its opposition to the court’s investigation of alleged U.S. crimes in Afghanistan and elsewhere.

Second, an appropriations law from 1999 bars the United States from spending funds to support the court,

Third, the American Service-Members Protection Act prohibits other institutional support.

The law calls for the following:

First, authorized the president to use “all means necessary and appropriate to bring about the release” of any U.S. or allied personnel “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

Second, prohibited U.S. military aid to countries that joined the ICC unless they were members of NATO, were a major non-NATO ally or had agreed not to surrender U.S. personnel to the court.

Ideally those laws would be amended to allow for greater cooperation. But even if they aren’t, there is plenty of room for compromise that could benefit both sides in this complicated relationship.

Sharing information with the ICC prosecutor as he investigates possible crimes in Ukraine could be an important step toward ensuring accountability.

The 2010 Justice Department memo concluded that the United States could provide “intelligence, law enforcement information, diplomatic reporting, investigative actions, and testimony … to the ICC for particular investigations or prosecutions of foreign nationals accused of genocide, war crimes, or crimes against humanity.”

In addition, the memo said, the United States could “detail personnel for an ICC investigation or prosecution of a foreign national” as long as the support was “case-specific” rather than institutional.

The United States could also provide assistance and support to the Ukrainian government in evidence collection and handling — procedures that are crucial to prosecutions in any legal forum.…”


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