Jonathan Power, weekly columnist on foreign affairs


Jonathan PowerIn 2017 the office of the prosecutor of the International Criminal Court (ICC) released a report which for the first time explicitly named US military forces in the field and Central Intelligence Agency (CIA) operatives in secret prisons as possible war crimes culprits for their alleged use of torture and rape. Because the American soldiers were based in Afghanistan, which is an ICC member, the ICC in theory has broad jurisdiction over crimes committed by combatants on Afghan soil. 

The reaction of the US government was fast and furious. It brought enormous pressure on the Court to squash the investigation into US forces. Instead, the ICC turned its attention to prosecuting the torture at CIA “black sites” across Europe. But nothing has come of that either despite a US senate committee publishing a detailed account of how they worked and the torturing that went on inside them. President Barack Obama refused to initiate prosecutions on the grounds that he didn’t want to have to deal with such a divisive issue at the onset of his presidency. 

Until the Ukraine atrocities came on the scene, Americans of all parties were strongly against the ICC. They seem to have overlooked that 124 countries are now fully signed up members and that its closest allies, the Europeans, are among its great supporters. Indeed, the UK did at first cooperate with the court when several of its soldiers were charged with murder, torture, and rape in Iraq. 

In principle, the UK recognizes that the court must do its job, but in practice, it has not been enthusiastic about its efforts in Iraq and Afghanistan and tried to stall investigations. In the end, it persuaded the ICC to close its investigation on the grounds that the UK was willing to genuinely investigate and prosecute alleged crimes on home territory. This is one of the loopholes ICC member States can avoid being involved in ICC prosecution by claiming that they have competent judiciary capable of handling such cases which would otherwise be referred to the ICC. However, there has only been one conviction. The soldier convicted of murder spent only three years in jail. 

President George W. Bush made it clear that he detested the court. His government threatened countries that worked with it would be heavily penalized by the US. But Bush changed his mind. I was the first journalist in the English-speaking world to reveal that Bush in his second term was quietly helping the court–searching for the leaders of the genocide in Darfur, Sudan, Congo and for Charles Taylor, the murderous warlord who once ruled Liberia. President Barack Obama stepped the help up, including donating money to the court. To my knowledge he didn’t complain publicly about the court’s work in Afghanistan, although whether he would have been quiet about an actual prosecution of American soldiers is a moot point. 

When Donald Trump came to power, he threatened fire and brimstone. He said if the ICC pursued cases against Americans the US would ban its judges and prosecutors from entering the US. It would impose financial sanctions. 

His national security advisor, John Bolton, went so far as to say the court was “outright dangerous”. It was a “freewheeling organization” backed by nations that wanted to constrain the US. He said the US would take actions against any company or state that aided an investigation of American citizens and would prosecute ICC judges or prosecutors in such a case. 

He also condemned the court for wasting large amounts of money–1.5 billion US dollars on investigations. “This dismal record”, the New York Times reported him saying, “is hardly a deterrent to dictators and despots. The hard men of history are not deterred by fantasies of international law…. History has proven that the only deterrent to evil and atrocity is what Franklin Roosevelt once called the ‘righteous might’ of the US and its allies”. 

What ‘righteous might’ was there in Korea, Vietnam, Cambodia, the Dominican Republic, Granada, Nicaragua, El Salvador, Guatemala and Afghanistan, and Iraq? 

Next, Bolton made an explosive speech. He said the US would “not sit quietly” if the court acted against the US, Israel, and other allies. He said the administration would act to protect its citizens from the “illegitimate court”. 

Bolton went so far as to say the court was “outright dangerous”. It was a “freewheeling organization” backed by nations that wanted to constrain the US. He said the US would take actions against any company or state that aided an investigation of American citizens and would prosecute ICC judges or prosecutors in such a case.

Now, it looks as if the US is poised to make a U-turn. Senior Republicans in Congress are taking a new look at the ICC and concluding that there is no better organization for bringing Russian war crime leaders, including President Vladimir Putin, to book. More finance, more judicial assistance combined with passing on to the Court intelligence findings, are about to be delivered. Most Democrats are of a similar mind, as is the White House. 

But the US is limited in what it can do unless it seeks membership in the ICC, thus subjecting itself to a possible future prosecution of members of its military and intelligence services. The Pentagon has made it clear it is against it. The White House appears to be weighing the matter. It would be a great day for human rights if President Joe Biden took such a step. In its present mood and with the war in Ukraine continuing, Congress may give him its backing. 

Whatever happens, it is a turning point. If membership of the ICC came to pass, it would be extremely doubtful that the US could one day make another U-turn and denigrate and undermine the court once again. It would have to come to terms with it. That is progress, although many would argue rightly that America chasing Russia’s war crimes in Ukraine would contain a good measure of hypocrisy. At the same time this will allow the ICC to absolve itself of alleged racism.

 Copyright: Jonathan Power,