The United States and Israel are acting as rogue States by refusing to accept the authority of the ICC
Even George Orwell would be at a loss to make sense of some of the recent antics of leading governments. We would expect Orwell to be out-satirized by the American actions to impose penalties and sanctions on officials of the International Criminal Court, not because they are accused of acting improperly or seem guilty of some kind of corruption or malfeasance, but because they were doing their appointed jobs carefully, yet fearlessly and in accord with their assigned role. Their supposed wrongdoing was to accept the request for an investigation into allegations of war crimes committed in Afghanistan by military personnel and intelligence experts of the U.S. armed forces, the Taliban, and the Afghan military. It seemed beyond reasonable doubt that frequent war crimes and crimes against humanity have occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous counterterrorist warfare carried on in the face of a mainly hostile population.
It should be observed that Israel is currently also infuriated that the ICC has affirmed the authority of its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed by Israel in the Occupied Palestinian Territories (OPT) of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements in the OPT as well as administrative structures and practices that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has outlandishly called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and on ‘the Jewish people’s right to live in Israel,’ a ridiculous contention on its face. It is ridiculous because to contend that the ICC by investigating criminal charges against Israel is somehow questioning the legitimacy of the state of Israel as if a sovereign state was incapable of committing international crimes while claiming defensive rights. Such questioning of the charges is far from ridiculous, but has nothing to do with determining whether or not Israel is guilty of war crimes arising out of both the occupation and the extension of apartheid structures to exert control over the Palestinian people as a whole whether they are living under occupation, or as a discriminated minority in pre-1967 Israel or in refugee camps or as involuntary exiles.
The Israeli Prime Minister seems to be contending that Israel as a sovereign state has the right to defend itself as it wishes, law or not law, and even, as in this case if it means subjugating and victimizing the ethnic majority that had long inhabited the sovereign territory. Israel argues that it should not be impeded by any obligation to respect international criminal law, or for that matter, any external source of authority, including the United Nations. Such a defiant claim, and the abusive practices and policies that have followed over many years under an omnibus, boundaryless claim of ‘the right of self-defense,’ amounts to a crass affirmation of what I have elsewhere called ‘gangster geopolitics.’
Of course, in any legal proceeding before the ICC, Israel or the United States would be given broad latitude to make the full range of arguments in support of their innocence or in support of their jurisdictional objections based on the legal argument that Palestine as a non-state lacks standing to invoke the ICC, and that the ICC lacks authority to prosecute Israel or Israeli because the country is a non-party to the Rome Statute, but these Israeli objections are not complaining about encroachments by the ICC on their right to mount legal defenses, but rather on the far more radical idea amounting to claiming that a total denial of international legal accountability is a necessary dimension of Israel’s security. The United States and Israel are acting as rogue states by refusing to accept the authority of the ICC even to determine whether or not it has jurisdiction to consider the criminal charges. This kind of repudiation of an international institution that has been acting responsibly, well within the legal framework set forth in the Rome Statute, an international treaty, represents an unprecedented, unacceptable, and extreme expression of anti-internationalism.
The angry American pushback did not bother to contest the substantive allegations, but denied only the jurisdictional authority of the ICC, and attacked the audacity of this international entity for supposing that it could investigate, much less prosecute and punish the representatives of such a mighty state that, by implication, should never, no matter what, be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court dared ever so gingerly to treat equals equally in accord with its own legal framework—the Rome Statute of 2000—it had in Washington’s and Tel Aviv’s eyes so overstepped its unspoken limits as to itself become a wrongdoer, and by this outlandish logic, making the institution and its officials legitimate targets for sanctions. What this kind of unprecedented punitive pushback against ICC officials amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude geopolitical reminder to international institutions that ‘impunity’ and ‘double standards’ remain operational as a principal unwritten norm of world order.
The US Executive Order against the ICC
Speaking for the U.S. Government the response of the American Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the American global brand well before Donald Trump disgraced the country and harmed the peoples of the world during his tenure as president. Pompeo’s reaction to the unanimous approval of the Prosecutor’s request to investigate war crimes in Afghanistan was little other than seizing the occasion to insult the ICC by describing it as “little more than a political tool employed by unaccountable international elites.” Such a statement enters the domain of absurdity given the abundant documentation of numerous U.S. crimes in Afghanistan (the subject-matter of Chelsea Manning’s WikiLeaks 2010 disclosures that landed her in jail) and in view of the several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape and other abuses. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites acting on behalf of the U.S. and Israeli governments.
The Pompeo dismissal of the ICC initiative was a prelude to the issuance by Trump on June 11th of an Executive Order that extended the prior denial of a U.S. visa to Bensouda, and threatened a variety of sanctioning moves directed at anyone connected with the ICC and its undertakings, including freezing assets and withholding visas, not only of ICC employees, but also of their families, on the laughable pretext that the prospective ICC investigation was creating for the United States a ‘national emergency’ in the form of an “unusual and extraordinary threat to the national security and foreign policy of the United States.” Even before the present crisis, Trump had told the UN in a 2018 speech at the General Assembly that “..the ICC has no jurisdiction, no legitimacy, and no authority..We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”
As crude as are the words and deeds of the Trump crowd, they exhibit more continuity with the past than disruption. There were almost equally defiant precursors, especially during the presidency of George W. Bush, during which an anti-ICC campaign was led by none other than John Bolton who was to become Trump’s notorious National Security Advisor for a short period until being purged. It is with delectable irony that the super-hawk, Bolton, should now reemerge as Trump’s his antagonist-in-chief as a result of publishing a tell-all book depicting Trump’s array of impeachable offenses. We should remember that it was Bush who ‘un-signed’ the Rome Statute that Bill Clinton had signed on behalf of the U.S. on the last day of his presidency, but even he did so with the proviso that the treaty should not be submitted to the Senate for ratification and hence would not be legally binding, until the ICC had proven itself a responsible actor in Washington’s judgmental and biased eyes. Congress and the State Department stepped in to make sure that American military personnel would not be charged with international crimes both by threatening preventive action and entering into over 100 agreements with other countries to ensure immunity of American soldiers and officials from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to agree to such a law-defying arrangement. Hillary Clinton also put her oar in the bloody waters some years ago, insisting that since the U.S. was more of a global presence than other countries, it was important to be sure that its military personnel would be safeguarded by never being brought before the ICC, no matter what their alleged offenses. The global military reach of the U.S. by way of hundreds of overseas bases, special forces covert operations, and naval patrols around the globe require that immunity be established on a individual level for American personnel, and that impunity be upheld on a collective level of state responsibility. These impulses are understandable given the degree to which U.S. global security activities are so often conducted in ways that violate the most basic prohibitions of international criminal law, as well as the sovereign rights of foreign countries. Nothing more clearly expresses the character of hegemonic geopolitics.
Double standards and victors’ justice
This historical background makes it clear that non-accountability and double standards have deeper political roots in the bipartisan soil of American security politics than the extreme anti-internationalism of Trump. Contemporary tactics of self-exemption from legal accountability can be usefully traced back at least as far as the ‘victors’ justice’ approach to war crimes committed in the course of the second world war where only the crimes of the defeated countries were subjected to accountability at Nuremberg and Tokyo, a step hailed uncritically in the West as a great advance despite such a flaw. It is true that the Chief American Prosecutor, Justice Robert Jackson made a strong assertion in his closing statement that the principles applied to the Nuremberg defendants were a precedent applicable to all sovereign states, and should any of those sitting in judgment later transgress these norms they should be held accountable by the same standards. In Jackson’s words, “Let me make clear that while the law being applied against German aggressor, the law includes, and it is to serve a useful purpose, it must condemn, aggression by any other nation, including those which sit it judgment.” This lofty sentiment was a pious wish that has never been realized, and will not be so long as international law gives way to geopolitical pressures on matters of vital concern. Such a failure raises questions about the true character of the war crimes tribunals, undermining the triumphalist justification that the trials were a giant step along a new path imposing constraints on all sovereign states and individual accountability for those who acted in their name, and not just a familiar instance of post-war vengeance proclaimed as ‘justice.’
This flaw was far more serious than this crucial matter of underlying principle. Victors’ Justice in 1945 meant overlooking what was arguably the most horrifying and least forgivable wartime behavior of any combatant during the four years of hostilities, which was the decision to drop atomic bombs on Japanese cities that were not even legitimate military targets with terrible effects on the civilian population. Is there any serious doubt that if Germany or Japan had struck cities of the Allies with the bomb, and yet lost the war, those responsible for the decisions would have been held accountable, and harshly punished?
In some ways even worse from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest associates for their state crimes, although the 2003 Iraq War arose from acts of aggression by the United States and UK, and subsequent crimes during the prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous legal accountability for those leaders of countries defeated in a war unlawfully initiated by the United States. At least in the World War II criminal trials the defendants served governments that were guilty of crimes against peace by initiating wars of aggression without any pretense of acting in self-defense. Such ‘exceptionalism’ affronts the conscience of anyone who shares the view that ideas of fairness and equality should be affirmed as core values in the application of international criminal law. It is an idea inscribed in international law through the adoption without dissent of the Nuremberg Principles that generalized the framing and outcome of the Nuremberg Tribunal Charter and Judgment as if the application of international criminal law didn’t discriminate as between individuals on the basis of whether they were on the winning or losing side in a war. In this regard, the failure to address ‘victors’ justice’ in the Nuremberg Principles introduces an overlooked element of jurisprudential hypocrisy into the very fabric of international criminal law.
Pushbacks and reactions
Of course, it was politically incorrect to object to holding Germans and Japanese leaders legally responsible for their heinous actions, but that is not the point. The question at issue is whether the global rule of law should be servient to geopolitics, and if it is, are we entitled to call such proceedings a vindication of international criminal justice?
David Sheffer, the American diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve American geopolitical interests in the process, expressed the liberal opposition to Trump’s arrogant style of pushback with these words: “The [Trump] Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.” There is an element of hypocrisy present in such a denunciation due to withholding the pre-Trump record of one-sided imposition of international criminal law. True enough, it was the prior Republican president that had locked horns with the ICC some years ago, but the ambivalence of Congress and the Clintons is part of a consistent American insistence of what I would label as ‘negative exceptionalism,’ that is, the right to act internationally without accountability while taking a hard line on holding others accountable; impunity for the powerful, accountability for the weak. It used to be that American exceptionalism was associated with a commitment to decency, human rights, the rule of law, and a visionary approach to world order that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification, which was never deserved or appropriate, has long since been forfeited at the altar of global geopolitics, whose players make up the rules as they go along, while showing contempt for the legal constraints that are deemed suitable for the regulation of their adversaries.
Finally, it should be appreciated that while geopolitical actors can get away with murder, their rogue behavior is a precedent for all states, and weakens and undermines what fragile procedures exist to uphold and develop the most basic norms of international law, as well as strengthen infant international institutions struggling for legitimacy and effectiveness. It needs to be recalled that when the ICC was established in 2001 it was seen as an unexpected victory of collaboration between more moderate democratic governments and a large coalitions of NGOs, a rare achievement that went against the wishes of geopolitical guardians of state-centric world order. It led many people of conscience to believe, despite the massive evidence to the contrary, that it might still be possible to work effectively toward the achievement of humane global governance for a planet in crisis.