Why the U.S and Russia Get Away With War Crimes part one

Invading of Russia in the City of Ukraine.

On Feb. 27, 2022, Russian soldiers entered the Ukrainian city of Bucha, a quiet suburb of Kyiv. At the end of March, after weeks of occupation, they retreated. The stories they left behind are horrible. Russian soldiers had massacred civilians and left their bodies out in the open. Eyewitnesses report that people were subject to systematic torture and executions and that people's homes were looted by invading forces. All potential war crimes.

So can the Russian state, along with President Vladimir Putin, be put on trial by the International Criminal Court, like the United States wants? But Russia isn't a member of the ICC, meaning their leaders can't be tried by the court. And they're not the only ones.

The United States isn't a member of the court either. That's why no American presidents or officials were put on trial for U.S. actions during the so-called war on terror, even after the world saw images of tortured prisoners at Abu Ghraib and the aftermath of civilian massacres in places like Kandahar in Afghanistan and Nisour Square in Baghdad, Iraq.

But how exactly has the U.S. been able to place itself beyond the reach of accountability? And how has this undermined the ICC — and international law —when it goes after other bad actors?

“The decision of one man to launch a wholly unjustified and brutal invasion of Iraq. I mean, of Ukraine. Iraq, too. Anyway...” (A slip of the tongue of George W Bush May 18, 2022)

 

The history of ICC (International court council ) and the Rome Statute

 

International law only came into being after World War II, during the Nuremberg trials, when countries came together to prosecute Nazi officials for their crimes against humanity. Then, in 1949, nations came together at the Geneva Conventions and came up with a list of war crimes, including willful killing and torture.

But no institutions were ever built to enforce the agreement made at Geneva. And for decades, the Nuremberg trials remained the only example of an international tribunal. But then in the 90, war broke out in both the Balkans and Rwanda. Belligerents in both wars went on to commit multiple atrocities, including genocide.

To investigate these crimes, the United Nations organized two separate ad hoc tribunals. Countries then began to unify around the desire for a permanent court. This push resulted in the Rome Statute, which was adopted by the UN General Assembly in 1998.

“I would hope that the establishment of this court will send a powerful message across the world that impunity will no longer be tolerated. And those who commit crimes against humanity, war crimes, and genocide will be made to account for it and be put in the dock and judged”. (Kofi Annan the former united nations secretary-general)

By 2002, more than 60 countries had ratified the Rome Statute, officially establishing the ICC. Today, 123 countries have ratified the statute and are members of the court.

But guess who never got on board? The United States was one of only seven nations to vote against the Rome Statute when it was brought to the UN General Assembly in 1998. U.S. Ambassador David Scheffer told the UN, "We do not accept the concept of universal jurisdiction as reflected in this statute."

The other countries who voted against the Rome Statute are China, Iraq, Libya, Yemen, Qatar, and Israel. Over time, more countries signed it, but 40 still haven't done so. But one region of the world that has embraced the ICC? Africa.

A focus on Africa, ICC, and the power of veto power.

Thirty-three of the court's 123 member countries are in Africa. When you look at the cases that have gone to trial at the ICC, it's clear that Africa is a huge focus. When you look at the statistics, it's quite stark. The reality is that, since 2002, there have been 22 cases in nine situations and all of those cases have involved Africans. There have been 27 warrants, and nine summonses to appear, all Africans.

But the court's referral process has disadvantaged African countries while privileging powerful ones. See, one of the ways that cases can be brought to the ICC is through a referral from the UN Security Council.

What this means is that the UN basically can't bring cases to the ICC if they involve Security Council members, especially permanent members like Russia and the United States, because those countries can just veto the decision and remain unaccountable. African states have long argued that this needs to be rethought, that there needs to be reform, that bringing in a political body — and a political body that has veto power, where states have veto power — and one vote against can stop the pursuit of criminal justice.

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