The West’s International Law Credibility Problem
July 17th was the 24th anniversary of the Draft Articles that comprise the Rome Statute of the International Criminal Court (ICC). The 128 articles, one of the most influential documents in international criminal law, confer on the ICC the power to investigate genocide, crimes against humanity, war crimes, genocide, and other crimes of aggression, entered into effect on July 1st, 2002. After almost a quarter century since its creation, 31 countries have not ratified the document.

Despite the emotional support for the Western rule-based system, the United States (along with China, Iraq, Israel, Libya, Qatar, Russia, and Yemen) is not a member of the Rome Statute.

In 2002 2002, the Bush Administration notified the United Secretary General of the Nations that it was no longer planning to sign the treaty by President Clinton two years prior. The American Servicemembers Protection Act (ASPA) formally rescinded the signature of the United States and prohibited U.S. cooperation with the International Criminal Court. The Act also banned U.S. citizens from taking part in the U.S. from participating in peacekeeping missions without protection from ICC could be assured; it was also prohibited from providing aid to military operations for any states that are parties to the Rome Statute. In the past, the U.S. pressured governments worldwide, including Israel, East Timor, Honduras, Afghanistan, El Salvador, and Sri Lanka, to sign bilateral impunity agreements that would remove U.S. nationals from prospective ICC jurisdiction. In the meantime, the Trump Administration renewed the U.S. opposition to the Court in 2019 by imposing sanctions and suspending the visas of the ICC’s Chief Prosecutor and her staff in response to potential investigations into allegations of U.S. involvement in Afghanistan. In the meantime, the Biden administration removed its ICC restrictions in 2021 but remains in strong disagreement with the Court’s efforts to claim the jurisdiction over U.S. personnel, contending that it would be risky expanding to extend the Rome Statute to non-state parties and jeopardizing the fundamental principle that complementarity is a virtue.

Watchers who follow the U.S.’ often hostile statements and threatening protests against Rome Statute and the International Criminal Court discover evidence of selective moral outrage when serious crimes that fall under the jurisdiction that is the responsibility of ICC occur by states that are believed to be located outside of the western hemisphere’s affluent orbit. In 2005 and 2011, the U.S. assisted in the International Criminal Court’s criminal investigation of Sudan and Libya. In 2013 in 2013, the U.S. expanded the war crimes reward program to aid in the arrest of foreign nationals who international tribunals and courts want. The United States is also a vocal supporter of international investigations into the alleged war crimes perpetrated in the Ukraine situation by Russia during Ukraine. Ukraine situation.

The ICC’s intention to probe the past U.S. activities in Afghanistan has been met with American anger and fury. In large part, this is because of U.S. objections, the issues surrounding the controversial implementation of drone warfare, the extrajudicial executions of individuals suspected of involvement in terrorist acts as well as recourse to torture CIA Black Sites, as well as the execution of the war against terror are yet to be met with a fair and appropriate legal response from both the international and domestic levels.

The varying and contradictory acceptance of international law resulted in part, as some have correctly asserted, from the nation’s long-standing tradition of suspicion and fear of foreign courts, which hindered the progress of international justice and the uniformity and consistency of the application of international law. This impeded the establishment of a solid legal precedent in the most egregious violation of the international criminal code and international human rights law. The indecisive use of this ICC mandate, especially when strategically advantageous, is at risk of weakening the hegemonic position that the liberal consensus post-1945 has in a time of a highly demanding world stress test.

The impartial and unpolitical work of international courts in enforcing the law, assuring enforcement and compliance, and eventually stopping further violations is required more than ever. Victims of violent conflicts caused by geopolitical mischief deserve nothing less. However, real accountability and international justice will only happen by the international community initiating inquiries into the U.S. and NATO’s record of violence in Afghanistan and Iraq, like in Russia and Ukraine. What, after all, are Ukrainian lives more valuable than Afghani or Iraqi lives? Do Russian war crimes more egregious than American, Australian, or British? The only way to know the truth is to submit the individual and state conduct as well as behavior in situations of conflict to the blind justice system and the public review of international law, being aware that there is no guarantee that every single wartime civilian death, regardless of how tragic, genocide. Is it a war crime, or is it a crime against humanity?

In 2014, the Amnesty International report documented the “possible war crimes” committed by U.S. and NATO troops calling for the probe and prosecution of “those suspected of criminal responsibility for such crimes.” In November 2020, it was revealed that the Australian Defence Force’s (ADF) inquiry of four years into its military’s conduct concluded that Australian soldiers killed innocent civilians and lied about actions to “deflect or deceive future inquiries into the circumstances of their deaths.” Similar accusations have been made about the NATO Special Operations Forces and their British Special Forces’ pattern of committing illegal murders in Afghanistan.

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