It’s most “ironic”, to say the least, that the US isn’t a signatory and party to the Rome Statute which provides for the establishment and constitution of the International Criminal Court (ICC) based in The Hague as the pre-eminent and sui generis (in its own class) judicial forum for trials regarding a) genocide; b) crimes against humanity; c) war crimes; and d) the crime of aggression (as per Article 5).
This is because the US was none other than one of the co-sponsors and co-convenors of the International Military Tribunal for the infamous Nuremberg trials which was set up in the aftermath of the downfall of the Third Reich and conclusion of the Second World War to prosecute Nazi war criminals. The US also set up the International Military Tribunal for the Far East to try Japanese war criminals in Tokyo.
So, why the blatant/flagrant incongruity and anomaly here?
Being the world’s leading superpower, what more persistent and unrivalled hegemon, and that’s said to be dominant across the full spectrum of all capabilities as well as principal instigator of conflicts and wars, the US should be held accountable via the Rome Statute.
More so when the US perceives itself as the world’s foremost sheriff (with others as deputies).
Indeed, the only superpower with the moral authority, to add for good measure, whether rightly (under the auspices and banner of the fight against Nazism during the Second World War or the US-led United Nations/UN “police action” during the Korean War of 1950-1953) or wrongly (e.g., under the misguided as well as inconsistent application of the humanitarian intervention principle and doctrine of responsibility to protect/R2P vis-à-vis the invasion of Libya under UN Security Council Resolution 1973, as inspired by a neoliberal worldview and philosophy in international relations/IR).
The Rome Statute as governing the jurisdiction and functioning of the ICC was adopted in 1998 when sixty countries participating in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court signed the international legally-binding text. The formation of the ICC became a reality concomitant with the entry into force of the Rome Statute on July 1, 2002.
At present, 123 countries are party/signatory to the Rome Statute.
Under the Rome Statute, the ICC may only exercise its jurisdiction “if the national court is unable or unwilling to do so” and has jurisdiction over offences committed after the date of its official formation.
According to Article 1, the ICC is to “have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to [under the Rome Statute], and shall be complementary to national criminal jurisdictions”.
Articles 6 to 9 outline and specify the nature of each type of crimes that a country (i.e., signatory member) can commit. The basis and scope of the crimes enumerated and accounted for therein are wide enough for a country such as the US to be involved and indicted in pursuant thereto.
For example, as per Article 8 (war crimes), grave breaches and violations under the Geneva Convention (1949) regarding treatment of prisoners of war such as outlined in Section 2(a)(ii), namely “[t]orture or inhuman treatment …” would have been sufficient to charge and indict the US military for its documented role in the physical, psychological and sexual abuse and humiliation of Iraqi soldiers at the notorious Abu Ghraib detention centre (see, e.g., “Iraq: Torture Survivors Await US Redress, Accountability”, Human Rights Watch, September 25, 2023).
These war crimes happened following the fall of Saddam Hussein whose weapons of mass destruction (WMD) hyped up by the Anglo-American political elite and the deep-state cabal including links with the media industry were finally proven to be a propaganda hoax (see, e.g., “In chase for WMD in Iraq, no smoking gun, just deception and lies”, New Straits Times, March 20, 2023; “Iraq WMD failures shadow US intelligence 20 years late”, AP News, March 23, 2023).
Section 2(b) of the same Article 8 also provides for the war crimes of:
(i) [i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; and
(ii) [i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives.
Both of these types of war crimes as enumerated above also took place, e.g., in 2004 when US soldiers were implicated in the killing of more than forty civilians, most of them women and children, in the village of Makr al-Deeb in western Iraq (“Has the U.S. Government Committed War Crimes in Afghanistan and Iraq?”, Independent Institute, May 23, 2004
These war crimes occurred in Afghanistan also during the tenure and under oversight of the military occupation by the US as the principal occupier in the UN-sponsored International Security Assistance Force (ISAF) which presence was ostensibly to enable the country’s transition to a normal functioning democratic polity.
In 2008, a US airstrike “against a target of opportunity [sic]” massacred 47 civilians who were traveling to attend a wedding in the Nangarhar province of Afghanistan. Among those killed were 39 women and children, including the bride herself.
Despite initial denials by the US military, further investigation of the incident exposed the contradictory truth (“Double Standards in International Law: Did the U.S. Get Away with War Crimes in Afghanistan?”, Columbia Undergraduate Law Review, June 16, 2022).
Denials are combined by the outrageous threat “to arrest and sanction judges and other officials of the [ICC] if it moves to charge any American who served in Afghanistan with war crimes (“US threatens to arrest ICC judges if they pursue Americans for Afghan war crimes”, France24, September 11, 2018).
Such a threat surely and emphatically undercuts and undermines the hegemon’s moral authority and indignation at other countries’ human rights record (think China, Russia, Syria) as nothing but sheer hypocritical grandstanding and realpolitik.
At the same time, the threat in and of itself constitutes a self-indictment, if at all.
According to Amnesty International (AI) in its report, “War Crimes and Civilian Harm During the Fall of Afghanistan to the Taliban” (2021), the US has been responsible for dropping bombs on civilian-dense areas which were by far from what’s been described. That is to say, instead of drones, these were aerial strike operations by manned aircraft, including “massive AC-130 gunships designed to support infantry in ground combat …”.
The report continues with the statement that, “[i]f the US continues strikes against targets in Afghanistan in the future, it will likely be from a variety of platforms under the inaccurate label of ‘drone’” (p. 12).
Of course, the country that needs mentioning too is Israel, which like the US is also a non-signatory/non-party to the Rome Statute.
War crimes committed by the Israeli Military Governorate in the West Bank alongside militant settlers as well as by the wider Israeli Defense Forces (IDF) in Gaza covers all the four main categories of Article 5 and could conceivably tick almost all the boxes of the sub-provisions from Articles 6 to 9 of the Rome Statute.
It’s noteworthy that the evil of apartheid is covered under Article 7 (crimes against humanity) of which the Zionist State of Israel is definitively guilty thereof and which has come to be the present-day embodiment/epitome.
Towards this end, the State of Palestine (as represented by both the Palestinian Authority/PA of the West Bank and Hamas in the Gaza Strip) should move a motion at the UN General Assembly calling for Israel and the US to be pressured to accede to the Rome Statute.
Failure of which the Rome Statute should be amended to provide for exemption to be applied specially to non-signatories/non-parties with particular reference to the US – and Israel.
Alternatively, the ICC itself should unilaterally – and without recourse to another the United Nations Diplomatic Conference of Plenipotentiaries or similar assembly – take the initiative to amend the Rome Statute to particularly apply to the US as “being the singular non-party/non-signatory member state in a position to have committed breaches and violations by virtue of its position as the world’s leading military power that’s active in conflicts around the world”.
In conclusion, the US “deferment” from being held accountable for war crimes as a whole via submission to (what should be ideally be) the (universal) jurisdiction and legal/judicial supremacy (albeit not primacy) of the ICC (pertaining to war crimes and related matters) is long overdue.
Holding countries such as the US, specifically, accountable and liable is also an integral and indispensable part and aspect of reshaping the global order – in moving away from unipolarity.
In this, the ICC and, by extension, the UN can and should take pro-active steps to reflect the changing global order and seek to correct what’d be a most fundamentally glaring incongruity and anomaly.
And, last of all, continuing profound and deep-seated injustice towards the international community as a whole in general (simply on the basis of basic humanitarian principles) and the affected countries in particular (as a matter of what can only be the proper and consistent application of the rule of law).
Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.