The European Union has joined the United Nations, the International Committee of the Red Cross, and half of the 123 member states of the International Criminal Court (ICC), including Canada and the UK, in condemning US sanctions on its officials investigating possible war crimes in Afghanistan. The US, despite taking part in the negotiations that lead to the Court’s creation, is not a member state of the Court. The reasons for this are complex, and delve deep into the United States’ conception of itself in relation to the world.
When the Statute of Rome, the international code that would create the Court, was being negotiated, the US was a key player. President Bill Clinton, who signed the treaty, declared: ‘The United States has a long history of commitment to the principle of accountability.‘ As evidence, he cited the Nuremberg trials, and the US efforts to establish the International Criminal Tribunals for the Rwandan genocide and the violence in the former Yugoslavia. Yet he also spoke of ‘significant flaws‘ in the treaty and, despite the US delegation securing the promise that the ICC would not intervene in domestic legal systems, Clinton declined to send the Statute to Congress for ratification.
Fast forward to 2002, and President George W. Bush revoked Clinton’s signature. Why?
Part of the answer can be divined from an article published by The Heritage Foundation in 1999, entitled ‘The International Criminal Court vs the American People‘. A section of the article claimed:
The U.S. Constitution’s Framers sought to eliminate forever the danger that Americans might again be surrendered to a foreign power for trial by specifically requiring that criminal trials be by jury and conducted in the state and district where the crime was committed.
In other words, Americans can only be tried by Americans in the United States of America. This is but one of the complaints raised by the article, including its purported threat to the US government’s ability to defend its interests, its self-government, and rights of American citizens to expect a swift trial and reasonable bail. Another point of complaint is that the courts may be staffed by judges hostile to the United States.
Whether these complaints are accurate or not is a matter of debate. Article 17 of the Rome Statute declares that a case cannot be brought before the ICC if:
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.
So in other words, if the United States is trying crimes committed on US soil, then the Court cannot intercede. However, the concern that members of the US armed services deployed abroad could conceivably be charged by the ICC, and hence face a trial by someone other than their fellow Americans, is harder to dispel. And it is precisely this concern that is at the centre of the latest furore. Nor is it unique to the current administration.
In 2002, the American Servicemember’s Protection Act was signed by President George W. Bush, which stipulated that an American servicemember should never be subject to the jurisdiction of the ICC, citing the violation of their rights under the US constitution. It is worth noting that this is not pure spin; the ICC is an international tribunal which does not include a jury, a judicial mechanism constitutionally mandated in the United States. But this aspect of the court seems to only be a problem where an American citizen is involved.
In 2012 and 2015, the US assisted with the transfer of Bosco Ntaganda, a Congolese rebel leader, and Dominic Ongwen, commander of the Lords Resistance Army (an armed group operating in Northern Uganda, South Sudan, Central African Republic, and the Democratic Republic of the Congo), to the Court. There is no doubt that these men were deserving of this. The Lord’s Resistance Army has committed atrocities against thousands of civilians, and employed child soldiers, while Bosco Ntaganda was sought by the ICC from 2006-2012 for war crimes and crimes against humanity. Yet those who committed abuses while in the uniform of the US armed services, or working for the CIA, have undergone minimal investigation, according to Human Rights Watch.
What we are left with is a strange picture, and one consistent with the way in which the US can often operate in the international community. The federal government pushed for the establishment of the ICC, yet refused to be a member state. The US helped found the United Nations, yet its relationship with the intergovernmental organisation is contradictory, clouded by a distrust of globalism that saw President Donald Trump pronounce that, ‘the future does not belong to globalists. The future belongs to patriots,’ in his address to the UN General Assembly last year. The World Trade Organisation and World Health Organisation were all founded with American involvement, yet it is precisely these institutions that have been the targets of the White House’s ire in recent times.
Half in, half out of the international community, yet possessed of the hard and diplomatic power to reshape it, the US is a curious state. But it is its unusual status that makes it of significance. Which direction the resident of the White House takes it in the coming years has profound implications for the international order.