Repudiating the International Criminal Court

EDITORIAL, 22 Jun 2020

#644 | Prof. Richard Falk – TRANSCEND Media Service

Even 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 U.S. 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 but because they were doing their appointed jobs carefully, yet fearlessly. Their supposed wrongdoing was to accept the request 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 a string of war crimes and crimes against humanity had occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous combat amid a hostile population.

It should be noted that Israel is equally infuriated with that the ICC should have affirmed the authority its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed in the Occupied Palestinian Territories of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements as well as administrative structures that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and somehow on ‘the Jewish people’s right to live in Israel.’ The Israeli Prime Minister contends that Israel as a sovereign state has the right to defend itself as it wishes, and should not be impeded by any obligation to respect international criminal law. Such a claim, and the abusive practices and policies that have followed over many years, amounts to a disturbing affirmation of what I have elsewhere called ‘gangster geopolitics.’

The angry U.S. pushback did not bother contesting the substantive allegations, but questioned 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 should in no way be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court finally dared 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 pushback amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude effort to remind international institutions that ‘impunity’ and ‘double standards’ remain an  operational principal norm of world order.

Speaking for the U.S. Government the response of the Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the U.S. 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 crosses the borders 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 several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites running the U.S. and Israeli governments.

The Pompeo dismissal was a prelude to the issuance by Trump on 11 June 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 undertaking, including freezing assets and withholding visas, not only of individuals, but also of their families, on the laughable pretext that the prospective ICC investigation was creating 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, there were almost equally defiant precursors, especially during the presidency of George W. Bush, an anti-ICC campaign led by none other than John Bolton who was to become Trump’s notorious National Security Advisor, and is currently his antagonist due to his book publicizing Trump’s array of impeachable offenses. 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 with the proviso that the treaty should not be submitted to the Senate for ratification and hence not be applicable, until the ICC had proved itself a responsible actor to Washington’s satisfaction. Congress stepped in to make sure that U.S. 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 from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to so agree. Hillary Clinton also observed some years that since the U.S. was more globally present than other countries, it was important to be sure that its military personnel would not be brought before the ICC.

In other words, non-accountability and double standards have deeper roots than the extreme anti-internationalism of Trump. It can be usefully traced back to the ‘victors’ justice’ approach to war crimes during the second world war where only the crimes of the defeated were subjected to accountability at Nuremberg and Tokyo, a step hailed as a great advance despite its flaws. It was deeply flawed considering that arguably the most horrifying act during the four years of hostilities were the atomic bombs dropped on Japanese cities. Is there any doubt that if Germany or Japan had beaten the Allies to the bomb, and used it against cities in the UK or the U.S., and yet lost the war, those responsible for the decisions would have been held accountable, and punished in a harsh manner?

In some ways as bad from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest advisors for their state crimes, although the 2003 war arose from acts of aggression by the United States and UK, and subsequent crimes during a prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous accountability for those leaders of countries defeated in war by the United States. Such ‘exceptionalism’ should shock the conscience of anyone with a sense of the ideas of fairness and equality that should be core values in the application of international criminal law.

As might be expected, mainstream NGOs and liberal Democrats are not happy with such an insulting and gratuitous slap in the face of international institutions that have proved mainly useful in going after the wrongdoing of non-Western leaders, especially in Africa. It should be remembered that African countries and their leaders were the almost exclusive targets of ICC initiatives during its first ten years, and it was from Africa that one formerly heard complaints and threats of withdrawal from the treaty, but I doubt that ideas of sanctioning the ICC ever entered the imaginary of understandable African displeasure at an implicit ethos of ‘white crimes don’t matter’!

David Sheffer, the diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve Anglo American geopolitical interests, 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 U.S. 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 Anglo American exceptionalism was associated with a commitment to decency, human rights, and the rule of law that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification has long since been forfeited as at the altar of global geopolitics, which makes up the rules as it goes along, while showing contempt for the legal constraints that are deemed suitable for the regulation of adversaries.

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Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB, author, co-author or editor of 60 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to two three-year terms as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and associated with the local campus of the University of California, and for several years chaired the Board of the Nuclear Age Peace Foundation. His most recent book is On Nuclear Weapons, Denuclearization, Demilitarization, and Disarmament (2019).


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This article originally appeared on Transcend Media Service (TMS) on 22 Jun 2020.

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2 Responses to “Repudiating the International Criminal Court”

  1. […] I would like to thank Richard Falk for his erudite and intelligent analysis of the workings of the International Criminal Court (Editorial TMS 22 Jun 2020). Personally, I am not as surprised by the workings and politics of the ICC, because I usually give […]

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