Why Are We Above International Law?

Events just fly by in the ever-accelerating rush of Trump Time, so it’s easy enough to miss important ones in the chaos. Paul Manafort is sentenced twice and indicted a third time! Whoosh! Gone! The Senate agrees with the House that the United States should stop supporting Saudi Arabia in Yemen (and Mitch McConnell calls this attempt to extricate the country from cooperation in further war crimes “inappropriate and counterproductive”)! Whoosh! Gone! Twelve Republican senators cross party lines to overturn Trump’s declaration of a national emergency on the US-Mexico border, followed by the president’s veto! Whoosh! Gone! Delegates to the March 2019 UN Environment Assembly meeting agree to a non-binding but important resolution drastically reducing the production of single-use plastic. The US delegation, however, succeeds in watering down the final language lest it “endorse the approach being taken in other countries, which is different than our own”! Once again, the rest of the world is briefly reminded of the curse of American exceptionalism and then, whoosh! Gone!

Under the circumstances, it wouldn’t be surprising if you had missed the Associated Press report about Secretary of State Mike Pompeo announcing that the United States “will revoke or deny visas to International Criminal Court personnel seeking to investigate alleged war crimes and other abuses committed by U.S. forces in Afghanistan or elsewhere.” In fact, said Pompeo, some visas may already have been denied or revoked, but he refused to “provide details as to who has been affected and who will be affected” (supposedly to protect the confidentiality of visa applicants).

National Security Adviser John Bolton had already signaled such a move last September in a speech to the Federalist Society. In what The Guardian called an “excoriating attack” on the International Criminal Court, or ICC, Bolton said, “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

By “unjust prosecution,” he clearly meant any attempt to hold Americans accountable for possible war crimes. An exception even among exceptional nations, the United States simply cannot commit such crimes. Hence, by the logic of Bolton or Pompeo, any prosecution for such a crime must, by definition, be unjust.

In calling it “this illegitimate court,” Bolton was referring to the only international venue now in existence for trying alleged war criminals whose countries cannot or will not prosecute them. By “our allies,” Bolton appeared to mean Israel, a supposition Pompeo confirmed last week when he told reporters, “These visa restrictions may also be used to deter ICC efforts to pursue allied personnel, including Israelis.”

And when it came to threats, Bolton didn’t stop there. He also suggested that the United States might even arrest ICC officials:

“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.”

This is a dangerous precedent indeed, as the director of the American Civil Liberty Union’s Human Rights Project, Jamil Dakwar, told Democracy Now! It’s outrageous, he pointed out, that the United States would prosecute “judges and the prosecutors of the ICC for doing their job and for doing the job that the United States should have done—that is, to investigate, credibly and thoroughly, war crimes and crimes against humanity that were committed in the course of the war in Afghanistan.”

What’s all this about?

The story goes back to December 2017, when Fatou Bensouda, the ICC’s chief prosecutor, announced an investigation into the possibility that US military and CIA personnel had committed war crimes during America’s Afghan War or in other countries “that have a nexus to the armed conflict in Afghanistan.” These included some of the countries that hosted the CIA’s so-called black sites, where, in the earlier years of the war on terror, detainees were held incommunicado and tortured. Specifically, the ICC opened an investigation into the possible commission of “war crimes, including torture, cruel treatment, outrages upon personal dignity, rape, and other forms of sexual violence by US armed forces and members of the CIA on the territories of Afghanistan, Poland, Romania, and Lithuania.”

When Bensouda made her announcement, it looked as if at least some Americans might finally be held accountable for crimes committed in the post-9/11 “war on terror” launched to avenge the criminal deaths of 3,000 souls in New York City and Washington, DC. That never-ending war has seen the United States illegally invade and occupy Iraq; directly kill at least 210,000 civilians (not to mention actual combatants) in Iraq and Afghanistan; torture an unknown number of prisoners; and continue to detain without trial or conviction 39 men at the Guantánamo Bay prison in Cuba.

But wait. Aren’t US personnel immune from ICC prosecution, because Washington never ratified the treaty that created the court?

That’s true, but the alleged crimes didn’t take place in the United States. They were committed in Afghanistan, Poland, Romania, and Lithuania, all of which have ratified the treaty. Note that Thailand, site of egregious CIA abuses, doesn’t appear on the ICC’s list, nor does Iraq (the site of the now infamous Abu Ghraib prison, among other things), presumably because neither is a signatory to the treaty.

However, before it could prosecute such crimes, the ICC would have to investigate any potential charges, interview possible witnesses, and gather the evidence necessary to prepare an indictment. That would undoubtedly require its investigators to visit the United States. This, say Bolton and Pompeo, will never be permitted.

What Is the International Criminal Court and Why Does It Matter?

The ICC’s origins go back to the Nuremberg trials at the end of World War II. In 1943, the leaders of the Allied powers—England, France, the United States, and the Soviet Union—met in Tehran, Iran. One subject on the table: how, once the war was won, the Allies would deal with Nazi war criminals. Soviet dictator Joseph Stalin is said to have proposed simply lining up and executing 50,000 Nazis. American President Franklin Delano Roosevelt reportedly tried to break the resulting tension by jokingly suggesting that 49,000 might be sufficient.

Two years later, at war’s end, confronting evidence of barbarism on a scale previously unseen in history, the war’s victors found themselves responsible for bringing accountability to the perpetrators of genocide and some modicum of justice to its victims. It was decided then to establish a tribunal, a court, where such criminals could be tried. The problem the Great Powers now faced was how to create a process that the world would consider something more than vengeance masquerading as righteousness, something more than “victors’ justice.”

The solution was to demonstrate that their prosecutions had a basis in the Geneva Conventions and other international treaties—in, that is, the already existing laws of war. In the process of designing those prosecutions, they consolidated and advanced the meaning and power of international law itself, a concept particularly needed in a postwar world of atomic weapons and a looming US-Soviet conflict. Three-quarters of a century and many wars and weapon systems later, enforceable international law still remains humanity’s best hope for adjudicating past war crimes and preventing future ones—but only if great nations like the United States do not declare themselves exceptions to the rule of law.

In addition to the verdicts rendered, the Nuremberg tribunal produced other enduring results, including the 1950 Nuremberg Principles, commissioned and adopted by the new United Nations. Those principles established that actions violating international law were punishable crimes, whether they violated any specific country’s domestic laws or not. Even heads of state or other high government officials were not considered immune from prosecution for such war crimes or crimes against humanity. And no one could be exonerated for them on the sole grounds of following the orders of a superior.

In the end, however, was Nuremberg really anything more than victors’ justice? There were those who said that was all it was, invoking what was called the “tu quoque” (Latin for “you did it, too”) argument. After all, hadn’t the allies also committed war crimes? Hadn’t the British and Americans, for example, firebombed the German city of Dresden, killing 25,000 civilians in one night and destroying 75,000 homes? Indeed, it’s been argued that, because the Allies didn’t want to answer for Dresden, they excluded the earlier German air war against England from the charges brought at Nuremberg.

Nevertheless, many observers there believed that, after rendering verdicts for Nazi crimes, a more permanent tribunal would turn its attention to the crimes of the Allies. It might even, for example, have taken up the legality of the US use of the world’s first atomic weapons to obliterate the Japanese cities of Hiroshima and Nagasaki. This, of course, never happened.

Nor has any court ever prosecuted those responsible for the US firebombing of 67 Japanese cities. Those lesser-known attacks killed hundreds of thousands of civilians and reduced many of that country’s largely wooden urban areas to ashes. Robert McNamara, secretary of defense under Presidents John F. Kennedy and Lyndon Johnson (and an architect of American policy in Vietnam), described those attacks in Errol Morris’s brilliant documentary The Fog of War. Reflecting on his own actions in World War II when, as an Air Force captain, he served in the Office of Statistical Control (where he analyzed the efficiency of bomber aircraft), he told Morris: “What one can criticize is that the human race, prior to that time—and today!—has not really grappled with what are called the rules of war. Was there a rule that said you shouldn’t bomb, shouldn’t kill, shouldn’t burn to death a hundred thousand civilians in one night? [General Curtis LeMay, who oversaw the firebombing campaign in Japan] said if we’d lost the war, we’d all have been prosecuted as war criminals.”