The United States has attempted to undermine the International Criminal Court since 2002. However, the U.S. government now wants the ICC to bring charges against Russian leaders for war crimes committed in Ukraine. Washington believes that the ICC is trustworthy enough to try Russians, but not to bring U.S. and Israeli officials to justice.
The Senate unanimously passed March 15, S. Res 546, which “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces.”
Sen. Lindsey Graham (R. South Carolina) introduced the resolution. said, “This is a proper exercise of jurisdiction. This is what the court was created for.” The United States has refused to join the ICC and consistently tries to undercut the court. Nevertheless, the U.S. Senate unanimously voted to use the ICC in the Ukraine conflict.
Horrorous images of destruction have been everywhere since the Russian Federation launched its armed attack on Ukraine on February 24, 2014. The Office of the UN Human Rights High Commissioner has documentedThere were 3,455 civilian deaths, including 1,417 people killed and 2,038 wounded as of April 3. The majority of civilian casualties have been caused mainly by explosive weapons with a large impact area. This includes multiple launch systems, heavy artillery, and missile strikes.
Karim Khan, chief prosecution of the International Criminal Court opened an office on February 28th. investigationinto the situation Ukraine. He stated that his preliminary examinationThere was reasonable grounds to believe that the alleged war crimes and crimes versus humanity were committed in Ukraine. Khan’s formal investigation will “also encompass any new alleged crimes . . . that are committed by any party to the conflict on any part of the territory of Ukraine.”
As I mentioned in the past Truthout columns, in spite of U.S.-led NATO’s provocation of Russia over the past several years, the Russian invasion of Ukraine constitutes illegal aggression.
Nevertheless, the ICC is not authorized to prosecute Russian leaders in connection with the crime of aggression.
The ICC’s Rome Statute Prohibits Aggression
In 1946, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing,” adding that, “to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
U.S. Supreme Court Justice Robert Jackson, chief prosecutor at the Nuremberg Tribunal, called aggressive war “the greatest menace of our times.” Jackson said, “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
Aggression is prohibited by the ICC’s Rome Statute. Article 8bisThe definition of the Aggression as a crime as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”
Adopting Article 8 of the UN Charter’s central prohibition against the use aggressive force, Article 8.bisAn definition of an Act of aggressionAs “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The charter only allows the use of military force in self-defense or with the consent of the Security Council, neither of which happened before Russia invaded Ukraine.
The prosecutor of ICC must prove that a leader of a country who exercised control over its military or political apparatus ordered an armed assault against another country to be convicted for aggression. An armed assault can be bombing or attacking other countries’ armed forces. The attack must be a “manifest” violation of the UN Charter in its character, scale and gravity, which includes only the most serious forms of the illegal use of force. For example, a single gunshot would not qualify but George W. Bush’s illegal invasion of Iraq would.
But the ICC’s jurisdictional scheme for the crime of aggression is much more restrictive than its regime for punishing the other crimes under the Rome Statute — genocide, war crimes and crimes against humanity.
The original Rome Statute said that those three crimes could be prosecuted in the ICC if: (1) the defendant’s country was a party to the statute; (2) one or more elements of the crime was committed in the territory of a State Party; (3) the defendant’s country accepted ICC jurisdiction for the matter; or (4) upon referral by the UN Security Council. The statute did not specify the scope and the jurisdictional scheme for prosecuting aggression crimes. This was left to future negotiations.
The final negotiations took place in Kampala, Uganda, in 2010. an amendment which is now Article 15bis(5) of the Rome Statute. This article prevents the ICC de facto jurisdiction over Russian leaders in the case of aggression.
Most countries at the Kampala Review Conference thought they had agreed that States Parties were covered by the jurisdictional scheme unless they “opted out” under Article 15bis(4). However, in 2017, France, the U.K. and several other States reversed Article 15’s presumption.bis(4). Under their new interpretation, States Parties were presumed to be “out” of the jurisdictional scheme unless they “opted in” by ratifying the amendment. The ICC would not be able to prosecute citizens of States Parties who had not ratified it.
The ICC could bring charges against Russian officials for aggression if the crime of aggression was under the same jurisdictional regime that war crimes, genocide, and crimes against humanity. Despite Russia and Ukraine not having ratified the Rome Statute yet, Ukraine agreed to the ICC’s jurisdiction under Article 12(3). Russia would veto any Security Council referral referring the matter to ICC.
The prohibition of aggression is so fundamental it is considered to be fundamental. jus cogensThis is a preemptory international norm that can never be violated. There is no immunity defense and no statute of limitations. jus cogens norm.
The Security Council could create a special tribunal to address the crime of aggression committed by Ukraine. Russia would, however, veto such an outcome.
Another option is for countries under the doctrine of universal jurisdiction to prosecute Russian leaders who are accused of aggression in their own courts. Some crimes are so grave that they are considered crimes against the whole world.
U.S. Calls For ICC Prosecution Of Russians, But Shuns Jurisdiction For U.S. And Israeli Leaders
“Americans are rightfully horrified when they see civilians killed by Russian bombardment in Ukraine,” Medea Benjamin and Nicolas J.S. Davies wrote in the LA Progressive, “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, Yemen or Gaza.” Benjamin and Davies attribute this to the complicity of the corporate media “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.”
The United States holds a double standard in relation to the ICC. The U.S. is not an ally to the Rome Statute. While former President Bill Clinton signed this statute when he left office, he asked George W. Bush not to send it to the Senate for advice or consent to ratification. While signing signifies an intention to ratify, a country is considered a State Party once it has ratified the treaty.
Bush went one further and created a new administration in an unprecedented move UnsignedThe Rome Statute. Congress passed the Rome Statute. American Service-Members’ Protection Act (ASPA), which contains a clause called the “Hague Invasion Act.” It says that if a U.S. or allied national is detained by the ICC, the U.S. military can use armed force to extricate them.
But the Dodd Amendment which is one provision of the ASPA, “specifically permits the United States to assist international efforts to bring to justice ‘foreign nationals’ who commit war crimes and crimes against humanity,” former Sen. Christopher Dodd and John Bellinger, former legal adviser for the National Security Council and State Department, wrote in The Washington Post.
Another provision says that the ASPA “would clearly allow the United States to share intelligence information about Russian offenses, to allow expert investigators and prosecutors to assist, and to provide law enforcement and diplomatic support to the Court,” Dodd and Bellinger added.
Although the U.S. does not belong to the Rome Statute as a State Party, it participated in negotiations on the crime. The United States has tried to undermine the ICC in numerous instances. Bush administration effectively forced 100 States Parties to sign the ICC by blackmailing them. bilateral immunity agreementsThey also promised not to give U.S. citizens to ICC custody or withhold aid from them.
After the ICC opened an investigation into possible war crimes by the U.S. aswell as crimes against humanity committed by Taliban leaders in Afghanistan in 2020, the Trump administration imposed sanctions upon ICC officials. Joe Biden however reversed the decision.
Khan was appointed chief prosecutor for the ICC. narrowed the scope of the investigationAfghanistan by limiting suspects only to Taliban and ISIS leaders. He cited “the limited resources available to my Office relative to the scale and nature of crimes within the jurisdiction of the Court that are being or have been committed in various parts of the world.”
Khan stated, “I have therefore decided to focus my Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State — Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation.”
“This was clearly a political decision — there’s really no other way it can be interpreted,” human rights lawyer Jennifer Gibson told Al Jazeera. Gibson’s human rights group Reprieve submitted representations for clients who alleged torture by the CIA in the brutal Bagram prison, as well as relatives of civilians allegedly killed in U.S. drone strikes in Afghanistan. “It gave the US and their allies a get out of jail free card,” Gibson said.
The Biden administration continues its opposition to the ongoing ICC investigation into Israeli war crime in Gaza. It has expressed “serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”
Following a five-year preliminary examination, former ICC Chief Prosecutor Fatou Bensouda found a reasonable basis to mount an investigation of “the situation in Palestine.” She was “satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip . . . (ii) potential cases arising from the situation would be admissible; and (iii) there are no substantial reasons to believe that an investigation would not serve the interests of justice.”
Bensouda initiated the preliminary examination six months after Israel’s 2014 “Operation Protective Edge,” when Israeli military forces killed 2,200 Palestinians, nearly one-quarter of them children and more than 80 percent civilians.
“So, the U.S. wants to help the International Criminal Court prosecute Russian war crimes while barring any possibility the ICC could probe U.S. (or Israeli) war crimes,” observedReed Brody, a Commissioner for the International Commission of Jurists is an international nongovernmental organization dedicated to human rights.
U.S. hypocrisy is no more apparent than in the first “Whereas” clause of the Senate’s unanimous resolution condemning Russia. It says, “Whereas the United States of America is a beacon for the values of freedom, democracy, and human rights across the globe . . .”
100 members of the U.S. Senate affirmed this sentiment in spite U.S. wars of aggression in Kosovo, Iraq and Afghanistan, and the commission U.S. military crimes. If senators really believe that the ICC can prosecute Russian leaders, they should press Biden to send them the Rome Statute for advice and consent to ratification. What’s good for the Russian goose should also be good for the U.S. gander.