Last week, we examined Donald Rumsfeld’s legacy of lies and utter disregard for human rights, which led to the United States government committing torture and waging unnecessary wars, as well as the subsequent undermining of American credibility, destabilization of an entire region of the world, and the deaths of countless people. With complicity from the leading American news sources and both major political parties, Rumsfeld planned a disastrous invasion of Afghanistan and engineered a ploy under false pretenses to make an equally disastrous invasion of Iraq. In recognition of the founding of the International Criminal Court on July 17, 1998 and its entering into force on July 1, 2002, we ask today: despite the myriad manifest war crimes directed by Donald Rumsfeld, why was Rumsfeld never tried in the international court?
First, we must look at the history of the International Criminal Court (ICC) and the United States’ relationship to it. Since the end of the First World War, many prominent Americans have both supported and rejected calls for a permanent international court to prosecute persons for committing war crimes, crimes against humanity, and other violations of international law. Especially after the Second World War, Americans were some of the most vocal proponents of an international court to arbitrate war criminals of Nazi Germany and Imperial Japan. But until 2002, all international courts were ad hoc tribunals, including the famous Nuremberg trials that indicted the Nazis. During the Cold War, trying to establish a permanent international court seemed impractical while the United States and the Soviet Union divided the world; but starting in 1989, A.N.R. Robinson, Prime Minister of Trinidad and Tobago, reintroduced the idea of such a court to the United Nations (UN) General Assembly. As the statutes for this new court were being drafted, the United Nations was confronted by two events that further underscored the need for an international court system: the mass atrocities of the Yugoslav Wars and the Rwandan genocide, both of which were handled by separate ad hoc international tribunals before the establishment of the ICC.
From 1989 to 1998, the International Law Commission (ILC), the UN General Assembly, and a coalition of NGOs worked on drafting a statute for the proposed International Criminal Court, drawing heavily from and expanding upon US civil liberty and constitutional law. On 17 July, the General Assembly adopted the Rome Statute of the International Criminal Court with an overwhelming vote of 120 to just seven (21 countries abstained). Along with China, Iraq, Israel, Libya, Qatar, and Yemen — countries with well-documented histories of human rights abuses — the United States voted against the Rome Statute.
What was the main reason for the nay vote from the United States? US Senator Jesse Helms (R-NC), chair of the Senate Foreign Relations Committee, objected due to the high possibility that American citizens, especially U.S. military personnel and public officials, could be investigated or prosecuted under international laws — the same laws that would equally apply to all signatory states. Even in the pre-9/11 years, the primary concern was that Americans would be charged with war crimes, even as the United States supported the international tribunals for the former Yugoslavia and Rwanda. The United States did not want to play by the same rules that they happily helped to impose on others. This transparently hypocritical perspective seemed to rule from the late 1990s into the 2000s, such that when President Clinton signed the Rome Statute in 2000, he did not even submit it to the Senate for ratification. In 2002, the year that the Rome Statute reached its requisite 60 ratifications to go into force, President Bush clarified his open hostility to the ICC and international law overall. By that time, the United States had been in Afghanistan for a year, the CIA/military prison torture program was well underway, and Secretary of Defense Donald Rumsfeld was putting the finishing touches to his Iraq invasion plan. While US objections to the Rome Statute were originally more generalized, the Bush-era hostility to ICC authority was clearly meant to shield Rumsfeld and many others in the Bush administration, as well as the military they directed, from well-substantiated accusations of willfully violating international law. To that end, Congress passed the American Service-Members’ Protection Act in 2002 in order “to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” The US government then pressured its allies to sign bilateral immunity agreements to never transfer US citizens to ICC authority, undermining the ICC further. Unwilling to challenge the United States government on the matter, the ICC simply sent “regrets” that the United States had taken such a hard line.
It was not necessarily the existence of an international court to which the United States government objects; the United States has enthusiastically participated in every major ad hoc international court since the end of the Second World War, and has at times actively supported the ICC when it suited US interests. For example, during President Bush’s second term, the United States took a pause from its anti-ICC hostility and refrained from using its veto power in the UN Security Council to prevent the ICC from investigating alleged atrocities in the Darfur region of Sudan, allowing the process to move forward. On the softening of US hostility to the ICC, State Department spokesperson Richard Boucher stated, “The United States believes very firmly in accountability for the crimes that have been committed in Sudan… [T]here is a mechanism that many members supported in terms of doing that… the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.”
Under President Obama, the US-ICC relationship was “reset” and the United States began actively cooperating with the ICC, although the United States never officially joined. Predictably, President Trump was openly hostile to the ICC, renewing the Bush-era sham complaints and even imposing sanctions against ICC officials. Now, under President Biden, those sanctions have been revoked, but the basic objections remain: the US government is absolutely unwilling to accept international jurisdiction or follow international laws — except when they serve American interests. This obvious hypocrisy and sense of entitlement sets a dangerous precedent of “might makes right” — and what will happen when another country becomes mightier?
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Stompor, John. “The Darfur Dilemma: U.S. Policy Toward the ICC.” Georgetown Journal of International Affairs, vol. 7, no. 1, 2006, pp. 111–119. https://www.jstor.org/stable/43133667
Trahan, Jennifer and Andrew Egan. “U.S. Opposition to the International Criminal Court.” American Bar Association. 1 January 2003 [Accessed 14 July 2021].
Reeves, Teresa Young. “A Global Court?” U.S. Objections to the International Criminal Court and Obstacles to Ratification.” Human Rights Brief, vol. 8, no. 1, article 6, 2000. American University Washington College of Law. https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1472&context=hrbrief
“Q&A: The International Criminal Court and the United States.” Human Rights Watch. 2 September 2020 [Accessed 14 July 2021]. https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states
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