ON November 3 2017, the prosecutor of the International Criminal Court (ICC), Fatou Bensouda from The Gambia, announced that her office had “…a reasonable basis to believe…” that war crimes and crimes against humanity had been committed by US armed forces in Afghanistan, as well as members of the CIA in secret detention facilities in Poland, Lithuania and Romania.
The allegation was that they had tortured, mistreated or raped at least 88 detainees between 2002 and December 2014.
Bensouda requested to open an investigation of alleged war crimes committed in Afghanistan.
In ruling against the prosecutor, a three-judge panel of the ICC said an investigation of actions in Afghanistan “…would not serve the interests of justice…” at this time.
In response to efforts to pursue these cases, US President Donald Trump wrote to the ICC saying: “Any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response… the United States holds American citizens to the highest legal and ethical standards.”
The US, historically, has been, and continues to be, at the forefront of being the world’s chief police officer.
While this role is glossed over by the global media casting the US as an ardent supporter and driver of international criminal justice, this is very far from the truth.
The US’ role in pushing for an international criminal justice system has nothing to do with that nation’s desire for human rights or world peace, but a deceptive intention of punishing its enemies and those that oppose its global dominance under the cover of an international cause.
The US has played critical roles in the establishment and operations of the United Nations (UN) War Crimes Commission, the World War II tribunals at Nuremberg and Tokyo, and the modern UN ad hoc and hybrid international tribunals for the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon and others.
The International Criminal Court (ICC), the only permanent international criminal tribunal with a mandate to investigate and prosecute the international atrocities of genocide, crimes against humanity, war crimes and aggression, is the pre-eminent historical achievement in international criminal justice and, again, the US played a pivotal role in its establishment.
With all these pivotal roles in the establishment and funding of platforms that are intended to deter and punish those who break international law and are a threat to global peace, you would think that that the US would be at the forefront of subjecting itself to the very processes and jurisdictions it has helped set up since the 1930s.
Sadly, this is not so, because, as always, the US has a ‘big brother mentality’, with a huge dose of the ‘do as I say, not as I do’ virus.
Eleanor Roosevelt served as chairman of the UN Human Rights Commission when it drafted the Universal Declaration of Human Rights, which has served as the UN’s bedrock human rights document since 1948.
The US also played a leading role in championing major international efforts in international humanitarian law, such as the Geneva Conventions.
However, the US has been among the chief violators of the very conventions and declarations it has spearheaded in drafting and pushing for.
While the US played a central role in the establishment of the Rome Statute that created the ICC, the US is not a State Party.
At present, 124 nations have ratified the Rome Statute and are members of the ICC Assembly of States Parties.
US administrations concluded that the Rome Statute created a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the UN Security Council, while violating national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states in some circumstances.
When you go through the timeline of the activities that the US has engaged in with reference to international criminal justice, certain things become very apparent:
- The US has no problem with the prosecution of war criminals as long at those criminals are not American or are not its allies.
- The US will pull out all stops to have those who are a threat to its interests
labelledcriminals and are pursued by the ICC. In essence, the ICC does the US’ dirty work.
- The US has no problem abusing its position on the Security Council to refer cases that involve its ‘enemies’ to the ICC so that it maintains the ‘Our hands are clean, it was a UN decision’ mantra.
- US leaders and security personnel will continue to sanction and commit war crimes as well as violate human rights across the globe with impunity because they think they are untouchable.
- The US has used its financial muscle to force countries in need of aid to sign ‘bilateral immunity agreements’ that would shield its personnel and other third parties from being handed over to the ICC.
October 20 1943
The UN War Crimes Commission (UNWCC) was established in London, UK, with a satellite office in China, by 17 allied nations (including China and India) prior to the end of the Second World War.
The Commission recorded ‘war crimes’ as reported around the world, supervised and co-ordinated the investigations and prosecution of cases globally, as well as provided advisory opinions to governments on law and procedure in order to harmonise prosecutions occurring in so many jurisdictions.
During its operation from 1943-1948, the Commission handled approximately 36 000 international crime cases. The US was heavily involved in the UNWCC’s creation and work.
Additionally, the US supported discussion within the UNWCC about the creation of a permanent international criminal tribunal by multilateral treaty, culminating in its adoption of a draft statute for a ‘United Nations War Crimes Court’.
August 8 1945
Following the Second World War, the US, France, the UK and the Soviet Union signed the London Agreement of August 8 1945, which later led to the creation of the International Military Tribunal (or Nuremberg Tribunal or Trials) to try German wartime leaders for crimes against peace, crimes against humanity and war crimes.
Among other principles, the Nuremberg Tribunal confirmed that individuals could be held criminally responsible for international crimes, regardless of official position, and that superiors’ orders were not a full defence to criminal behaviour.
Chief Justice of the US Supreme Court, Robert Jackson, was the Chief Prosecutor for the US at the Nuremberg Trials.
December 20 1945
Together, as the Control Council of Germany, the Allied Powers adopted Control Council Law No.10 after the conclusion of the Nuremberg Tribunal, which gave jurisdiction to the US, France, the UK and the Soviet Union to prosecute participants in the Second World War crimes against peace, crimes against humanity and war crimes.
The law allowed Allied powers to hold these trials before appropriate tribunals in their respective zones of occupation. The US held 12 seminal trials under Control Council Law No. 10 from 1945-1949.
January 19 1946
Through a proclamation by General MacArthur as Supreme Commander of the Allied Powers, the Allies set up the International Military Tribunal for the Far East (Tokyo Trials) to try Japanese war leaders for crimes against peace, crimes against humanity and war crimes, the same crimes tried at Nuremberg.
May 25 1993
By resolution, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), the first ad hoc temporary UN International Criminal Tribunal created to hold accountable those who participated in the atrocities committed during the Balkans conflicts in the 1990s. The US was an avid supporter of the ICTY’s creation, contributed greatly to the formation of its statute and other core documents and provided significant resources for its establishment as well as operations over the years. The establishment of the ICTY rekindles decades-long discussions on the creation of a permanent international criminal tribunal.
November 8 1994
By resolution, the UN Security Council establishes the International Criminal Tribunal for Rwanda (ICTR), to hold accountable those who participated in the atrocities in Rwanda between January 1 and December 31 1994. The US was an avid supporter of the ICTR’s creation, contributed greatly to the formation of its statute and other core documents, as well as provided significant resources for its establishment and operations over the years. Ultimately, the successes and failures of the ICTY and ICTR reignite discussions and generate enough worldwide momentum to start negotiations around a permanent international criminal tribunal.
February 1 1995
The US sends a delegation of lawyers from the Departments of State, Justice, and Defense to participate in the ad hoc committee on the establishment of an International Criminal Court with negotiations taking place in Spain, Germany and Italy.
The ad hoc committee is the first meeting of states where preparations were made for several years of negotiations on a permanent international criminal tribunal. The US continued thereafter to participate in further talks, leading to the 1998 Rome Conference.
March 25 1996-April 3 1998
Over the course of two years, the US participated in most sessions of the UN Preparatory Committee for the establishment of the ICC, including the final round of talks where the Committee completed draft statute for consideration at the final diplomatic meeting, the Rome Conference.
March 25 1998
While visiting Rwanda, US President Bill Clinton publicly endorsed the ongoing talks to create a permanent international criminal court, saying that: “Rwanda and the difficulties we have had with this special tribunal underscores the need for such a Court. And the United States will work to see that it is created.”
March 26 1998
Then chairman of the US Senate Foreign Relations Committee, Sen Jesse Helms, publicly released his letter to US Secretary of State, Madeleine Albright saying that any permanent UN criminal court proposal would be ‘dead on arrival’ in the US Senate.
June 15 1998 — July 17 1998
The UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) took place, with nearly 160 countries participating in the negotiations and numerous non-governmental organisations closely monitoring and reporting on the discussions.
The US was an active participant throughout the Rome Conference and assisted in drafting significant parts of the final version of the Rome Statute.
July 17 1998
The UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopts the Rome Statute with a vote of 120 to seven, with 21 nations abstaining and became open for signature and ratification.
The US ultimately voted against the adoption of the Rome Statute. The Rome Conference also established a Preparatory Commission for the ICC to draft important core documents for the operations of the ICC.
November 29 1999
US President Bill Clinton signed into law congressional legislation entitled Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 as part of the Consolidated Appropriations Act for Fiscal Year 2000.
The Foreign Relations Authorization Act contains prohibitions against directing any US financial support to the ICC (Section 705) and against the extradition of any US citizen to a foreign country that may surrender them to the ICC (Section 706).
June 30 2000
The US participated in the Preparatory Commission of the ICC that adopted draft Rules of Procedure and Evidence as well as Elements of Crimes. The US played a significant role in drafting these core documents and ensuring that they adhere to international standards of due process and fair trial rights.
The ICC Assembly of State Parties later adopted these texts during their first session in September 2002.
December 31 2000
With authorisation from President Clinton, US Ambassador-at-Large for War Crimes Issues, David Scheffer, signed the Rome Statute on the final day it was open for signatures. President Clinton did not submit the Rome Statute to the US Senate for ratification, however, stating that the US still had concerns about the statute and “…should have the chance to observe and assess the functioning of the Court…” before submitting to its jurisdiction.
April 11 2002-July 1 2002
The 60th country ratified the Rome Statute, paving the way for its entry into force on July 1 2002, and thus establishing the ICC
May 6 2002
John R. Bolton, US Under Secretary of State for Arms Control and International Security, sent a letter to Kofi Annan, UN secretary-general, stating that the US had “no legal obligations arising from its signature on…” the Rome Statute and it does not intend to become a State Party to the ICC.
August 2 2002
US President George W. Bush signed into law congressional legislation entitled the American Service-members Protection Act (ASPA) of 2002. ASPA contains several provisions meant to prohibit or otherwise complicate US co-operation with the ICC, including authorising military force to liberate any American citizens held by the Court, restricting US participation in UN peacekeeping operations, and prohibiting use of any appropriated funds to support or co-operate with the Court.
ASPA permits the president to waive certain prohibitions on ‘national interest’ grounds.
However, ASPA did include the Dodd Amendment (Section 2015) that permits the US to provide assistance to efforts to bring certain individuals “…or other foreign nationals accused of genocide, war crimes or crimes against humanity…” to justice.
October 17 2006
US President George W. Bush signed into law congressional legislation that repealed provisions of the ASPA that restricted military, educational and training aid to ICC State Parties that did not sign Bilateral Immunity Agreements with the US.
January 28 2008
US President George W. Bush signed into law congressional legislation that repealed provisions of the ASPA that restricted direct foreign military aid to ICC State Parties that did not enter into Bilateral Agreements with the US.
February 6 2011
The US advocated andvoted in favour of UN Security Council Resolution 1970, which refers the situation in the Libyan Arab Jamahiriya (Libya) to the ICC for investigation.
January 3 2013
The US President Barack Obama signed into law congressional legislation that expanded the US State Department’s Rewards for Justice Programme, which allowed for rewards of up to US$5 million for information leading to the arrest, transfer, or conviction of ICC fugitives.
In its first round of rewards with this new authorisation, the US issued rewards targeting Joseph Kony, Okot Odhiambo and Dominic Ongwen of the Lord’s Resistance Army for alleged participation in crimes committed in Uganda, as well as Sylvester Mudacumura, head of the Forces Démocratiques de Libération du Rwanda (FDLR) for alleged participation in crimes committed in Democratic Republic of the Congo.
March 22 2013
Despite having no legal obligation to do so, the US facilitated the transfer of Bosco Ntaganda to the ICC following his voluntary surrender at the US Embassy in Kigali, Rwanda. Ntaganda is the former deputy chief-of-staff and commander of operations of the Patriotic Forces for the Liberation of Congo (FPLC), a rebel group in Democratic Republic of the Congo.
Previously, the ICC had issued an arrest warrant for his alleged participation in war crimes and crimes against humanity committed in the DRC.
January 7 2015
Ongwen, a senior commander in the Lord’s Resistance Army (LRA), was arrested and placed in US custody in the Central African Republic. In 2013, the US offered a US$5 million reward leading to the arrest of Kony, Ongwen and two other LRA lieutenants.
The ICC issued an arrest warrant for Ongwen in 2005 on charges of crimes against humanity and war crimes.
Despite having no legal obligation to do so, the US facilitated Ongwen’s transfer to the ICC and was flown to The Hague to stand trial.