- R. Coleman Flowers
Politics in the Courtroom: US Disregard for International Justice and the ICC
Gut check. Is the United States leading the world in criminal justice? Do we as a nation actually support a robust and fair justice system? To this end, are we willing to hold members of our military accountable for international crimes? The answer to these questions seem an unfortunate and unequivocal no.
Over the course of the past few years, and even before, the United States has developed a disturbing trend towards isolationism. Moreover, this trend has grown to characterize the United States’ interplay with the international criminal justice community. While the U.S. sits as a permanent member of the U.N. Security Council, it has long held the International Criminal Court at arm’s length.
This interplay is not new. The United States has historically preferred to deter the ICC from asserting authority over U.S. conduct abroad, un-signing the Rome Statue in 2002, and authorizing use of force if U.S. nationals were ever held at the Hague. What is new is the bluntness with which the executive branch has pushed back against recent ICC investigations. ICC prosecutor Fatou Bensouda had applied to investigate allegations of torture committed by U.S. military personnel in Afghanistan. The President and Secretary of State Mike Pompeo’s response was not diplomatic.
The Pre-Trial Chamber of the ICC decided that such an investigation would not serve the interests of justice, notwithstanding the fact all the relevant requirements regarding admissibility and jurisdiction to the International Criminal Court had already been met. The Chamber decided that the current circumstances in Afghanistan would make the prospects for a successful investigation and prosecution “extremely limited.” The U.S. chest-beating seemed to work.
Without analyzing the social and political causes of U.S. isolationism, this treatment of international justice has poor implications for our standing as an international leader. The inherent principles of the ICC require that the international court examine the conduct of every state, not just the actions of countries who aren’t security council members. The US has a history of war crime allegations, recently regarding drone strikes in Yemen and civilian casualties in Somalia. It is the ICC’s duty to investigate such allegations, and not the place of the United States to bully them away from doing so.
The implications of these international developments are two-fold. First, in light of the success of The State Department’s sanctions against foreign prosecutors, we can likely expect a continued trend of isolationism from the current administration. Second, this indicates the administration’s stance against accountability, and implies a disregard for international justice. To be fair, these developments are not an outright rebuke of justice and accountability. This trend of ignoring the international community is simply in line with current “American Exceptionalism.” That is to say, it speaks to a sense of immunity from foreign accountability.
But criminal justice, accountability, and reform should not be a political chess-pieces, regardless of the scale. If an American soldier is guilty of torture of foreign nationals, they should be tried by the international community. This hostility towards the ICC calls into question our country’s moral direction. It further makes recent bi-partisan efforts to improve our own criminal justice system seem more like a political maneuver than a genuine attempt at reform. If the administration wants to support criminal justice reform, due process shouldn’t stop at our borders.
If the administration wants to support criminal justice reform, due process shouldn’t stop at our borders. If America is to remain an international example of equality and justice, we must turn to the international community for support and growth, and not shy away from responsibility for our military’s actions. War crimes, crimes against humanity, torture, and other human rights violations are not issues to be eschewed or ignored for political advancement.