When the loony right gathered at the Conservative Political Action Conference back in February, the theme of the Trump-heavy gathering was â€śAmerica Uncanceled.â€ť Speaker after speaker railed against â€śpolitical correctnessâ€ť in American culture, from â€śwoke mobsâ€ť to â€ścensorshipâ€ť in the mainstream news media. Incredibly, they tried to transform so-called cancel culture into the single greatest problem facing a United States still reeling from COVID-19 and its economic sucker punch. And yet, time and again, it has been the loony right that has been so eager to hit the delete button.
The ICC Has Stepped on a Political Minefield in Palestine
These supposed defenders of everyoneâ€™s right to voice opinions attempted to cancel an entire presidential election because it failed to produce their preferred result. Theyâ€™ve spent decades trying to cancel voting rights (not to mention a wide variety of other rights). Theyâ€™ve directed huge amounts of time and money to canceling social benefits for the least fortunate Americans. Throughout history, theyâ€™ve mounted campaigns to cancel specific individuals from Colin Kaepernick and Representative Ilhan Omar to the black lists of the McCarthy era. Theyâ€™re also not above canceling entire groups of people, from the transgender community all the way back to the original sin of this country, namely the mass cancelation of Native Americans.
Then thereâ€™s foreign policy. The Trump administration never met an international agreement or institution â€” the Paris climate accord, the Iran nuclear deal, the World Health Organization â€” that it didnâ€™t want to cover with â€ścancelâ€ť stamps.
One institution that has elicited particular ire from the far right has been the International Criminal Court (ICC). On April 2, the Biden administration took a step toward mending the rift between the United States and the ICC. It didnâ€™t go far enough.
Blocking the International Criminal Court
In 2000, the Clinton administration signed the Rome Statute that established the International Criminal Court, which has focused on bringing to international justice the perpetrators of war crimes, genocide, crimes against humanity and (beginning in 2017) crimes of aggression. In 2002, the Bush administration effectively unsigned the agreement and Congress pushed to shield all US military personnel from ICC prosecution. Although the Obama administration cooperated with the court, it was still worried about possible investigations into the US â€śwar on terrorism.â€ť
Ambivalence turned to outright hostility during the Trump years. National Security Adviser John Bolton made it his special mission to attack the ICC as â€śineffective, unaccountable, and indeed, outright dangerous.â€ť Among Boltonâ€™s many spurious arguments about the court, he claimed that the body constitutes an assault on US sovereignty and the Constitution in particular, a favorite hobbyhorse of the loony right. But the â€śsupremacy clauseâ€ť of the US Constitution (Article VI, clause 2) already establishes the primacy of federal law over treaty obligations. So, can someone please get those supposed legal scholars to actually read the pocket constitutions they carry around so reverently?
Boltonâ€™s off-base analysis came with a threat. â€śWe will respond against the ICC and its personnel to the extent permitted by U.S. law,â€ť he warned. â€śWe will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.â€ť
In 2020, the Trump administration began to implement Boltonâ€™s attack plan by imposing sanctions against ICC officials. Prosecutor Fatou Bensouda and senior prosecution official Phakiso Mochochoko were placed under travel restrictions and an asset freeze because they were investigating possible US war crimes in Afghanistan. This blacklisting of ICC investigators sent a chilling signal that the United States would attempt, much like a rogue authoritarian country, to obstruct justice at an international level.
An equally vexing issue involves a war crimes investigation in the Occupied Palestinian Territories. Although the ICC investigators looked at atrocities committed by Israelis and Palestinians, both Israel and the US condemned the investigation, arguing that Israel isnâ€™t an ICC member and so the international body lacks jurisdiction. The United States has made the same argument about the investigation into the conduct of American soldiers in Afghanistan, since the US is not a party to the ICC.
But the ICCâ€™s jurisdiction is quite clear: it extends to crimes â€ścommitted by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.â€ť Palestine, an ICC member since 2015, requested the investigation. And Afghanistan is also an ICC member.
Earlier this month, US President Joe Biden lifted the Trump administrationâ€™s sanctions. European allies, in particular, were enthusiastic about this additional sign that the United States is rejoining the international community. â€śThis important step underlines the USâ€™s commitment to the international rules-based system,â€ť said EU foreign policy chief Josep Borrell.
But the Biden administrationâ€™s move comes with an important caveat. In his statement on the lifting of the sanctions, Secretary of State Antony Blinken noted that â€śwe continue to disagree strongly with the ICCâ€™s actions relating to the Afghan and Palestinian situations. We maintain our longstanding objection to the Courtâ€™s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.â€ť
When it comes to the ICC, then, a disturbing bipartisan consensus has emerged on its supposed encroachment upon US sovereignty. Itâ€™s OK for the ICC to prosecute the actions of countries in the Global South, but handâ€™s off the big boys, a status the United States generously extends to Israel. In the Senate, Ben Cardin and Rob Portman put out a letter last month criticizing the ICCâ€™s investigation in Palestine, which attracted the support of 55 of their colleagues (down from 67 for a similar letter last year).
Together with Israel, the US continues to abide by an exceptionalism when it comes to international law that it shares with several dozen states, including quite a few that the United States generally doesnâ€™t like to be associated with, such as North Korea, Myanmar, Russia, China, Egypt, Belarus and Nicaragua.
Of course, it hasnâ€™t just been Bolton and a few outlaw states that have criticized the ICC. African countries in particular have accused the institution of bias. The Court has indeed opened investigations in a disproportionate number of African states: the Democratic Republic of Congo, Cote dâ€™Ivoire, the Central African Republic, Sudan, Kenya, Libya and Uganda. Preliminary investigations also took place in Gabon, Guinea and Nigeria and were slated to start in Burundi. All of the 46 individuals facing charges before the court are African.
In response to this perceived bias, the African Union, in 2017, called for a mass withdrawal of its members from the ICC. Burundi left the court that year, the first country in the world to do so (other countries, like the US and Russia, â€świthdrewâ€ť but hadnâ€™t actually ratified the treaty in the first place). Two other countries that seemed on the verge of withdrawal, South Africa and Gambia, ultimately changed their minds.
Bias or Backbone?
The ICC was supposed to put an end to the era of imperial justice by which the winners determine who is guilty of war crimes, a bias that pervaded the Nuremberg trials. It has appointed judges and investigators from the Global South: Fatou Bensouda is Gambian, for instance, while Phakiso Mochochoko is from Lesotho. Still, the preponderance of investigations in Africa should give pause. The ICC has obviously had some difficulty making a transition to this new era. But letâ€™s point out some obvious counter-arguments.
First, the ICC doesnâ€™t have an anti-African bias. It discriminates against African dictators and warlords. If anything, the court has a pro-African bias by standing up for the victims of violence in Africa. Other continents should be so lucky to have the ICC looking out for them. Second, the ICC has more recently begun to challenge major powers, including Russia for its actions in Georgia and Ukraine. It has also investigated the actions of Israel and the United States. These moves come with considerable risks, as the Trump sanctions painfully revealed. Third, the ICC has considerable jurisdictional restrictions. It canâ€™t investigate crimes against humanity in North Korea since the latter isnâ€™t a member. The same applies to China and its actions in Xinjiang.
Instead of complaining about the ICCâ€™s blind spots and shortcomings, the United States should get on board and put pressure on other countries to do likewise. Americans canâ€™t pretend to support the rule of law, to loudly promote it around the world, and then turn around and say: Oh, well, it doesnâ€™t apply to us. If the American justice system can prosecute perpetrators in blue like Derek Chauvin, the US can permit an international justice system to prosecute perpetrators in khaki who have killed civilians on a larger scale.
So, Biden deserves praise for reversing the Trump administrationâ€™s brazen and embarrassing attack on the ICC. But that doesnâ€™t constitute actual support for international law. Itâ€™s time for the United States to uncancel the International Criminal Court.
*[This article was originally published by FPIF.]
The views expressed in this article are the authorâ€™s own and do not necessarily reflect Fair Observerâ€™s editorial policy.