(Se puede leer este artículo en español aquí.)
Many countries in the Global South have denounced the International Criminal Court as a neocolonial institution, biased in favor of the West. Its leadership has been dominated by Europeans, and as of 2016, only Africans had been brought to trial at the court.
In a rare point of agreement, the United States has also opposed the International Criminal Court (ICC) since its inception. The US is not a member of the ICC, and Washington has even imposed sanctions on its top officials and threatened to arrest judges and prosecutors.
In fact, when the court first opened in the Netherlands in 2002, the United States passed a law known as the “Hague Invasion Act”, according to which Washington threatens to send its soldiers to free anyone being tried at the ICC who is a US citizen or is deemed important to its “national security” interests.
But after relentlessly attacking the ICC for its 21-year history, Washington has suddenly done a 180, and now publicly supports the ICC in its attempt to arrest Russian President Vladimir Putin.
The ICC arrest warrant was issued almost exactly 20 years to the day after the beginning of the US invasion of Iraq, which caused more than 1 million deaths, and which even United Nations Secretary General Kofi Annan said was illegal and violated the UN Charter.
Not a single US official was held responsible for the war crimes committed in Iraq. But the ICC now has its sights on Russia.
Russia is not party to the ICC. Ukraine is not a full member either.
Moscow said the “criminal prosecution is obviously illegal” and is a reflection of the Western-dominated court’s “clear hostility” to Russia.
Despite the fact that the United States is not a member of the ICC, President Joe Biden strongly supported the court’s arrest warrant.
This is quite a reversal for Blinken, because in March 2021, when the court was investigating Israel over war crimes it committed in the occupied Palestinian territories, the top US diplomat published a furious statement denouncing the ICC.
The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel. The Palestinians do not qualify as a sovereign state and therefore, are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.
Like Israel and the United States, Russia is not a member of the ICC. But just two years after arguing that the court cannot investigate non-member Israel over its war crimes, Blinken is suddenly insisting that the ICC must take action against non-member Russia on behalf of non-member Ukraine.
US imposes sanctions on ICC, threatens family members of officials
Blinken’s predecessor went so far as to impose sanctions on top ICC officials.
In 2020, when President Donald Trump was in office, the ICC opened an investigation into war crimes committed in Afghanistan by the US, NATO, and Afghan government allies.
In response, Trump’s former CIA Director turned Secretary of State Mike Pompeo delivered an angry rant denouncing the court.
“We oppose any effort by the ICC to exercise jurisdiction over U.S. personnel. We will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans”, he declared in March.
Pompeo blasted the ICC as “an embarrassment” and “a so-called court which is revealing itself to be a nakedly political body”. He asserted that “we are exposing and confronting its abuses”.
The top US diplomat even threatened the family members of top ICC officials, vowing, “We want to identify those responsible for this partisan investigation and their family members”.
Later that September, the US State Department hit the court’s chief prosecutor Fatou Bensouda and her colleagues with sanctions.
BREAKING: In shocking attack on #ICC @secpompeo threatens collective punishment against named staff of the court and their FAMILIES for court's ongoing investigation into #Afghanistan crimes that implicate US https://t.co/OsCTrC5YJs
— Sarah Leah Whitson (@sarahleah1) March 17, 2020
When the Biden administration entered office in early 2021, it removed these US sanctions on the ICC. But Washington still kept attacking and undermining the court.
US state media outlet Voice of America cited Blinken, who stressed that Washington continued “to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations” and object to ICC “efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel”.
That is to say, the Biden administration strongly opposed the ICC’s efforts to investigate US and NATO war crimes committed in Afghanistan and Israeli war crimes committed in the occupied Palestinian territories.
But now that the ICC is going after Putin, the political class in Washington is ecstatic.
The military leadership in the Department of Defense, on the other hand, is more cautious.
The New York Times reported in early March, just a week before the ICC issued its arrest warrant for Putin: “The Pentagon is blocking the U.S. from sharing evidence on Russian atrocities in Ukraine with the International Criminal Court, officials said. Military leaders fear setting a precedent that might pave the way for it to prosecute Americans”.
Breaking News: The Pentagon is blocking the U.S. from sharing evidence on Russian atrocities in Ukraine with the International Criminal Court, officials said. Military leaders fear setting a precedent that might pave the way for it to prosecute Americans. https://t.co/xnHCjkkZnK
— The New York Times (@nytimes) March 8, 2023
The ICC’s well documented bias against the Global South, and Africa in particular
The International Criminal Court is only 21 years old, but it has clearly demonstrated an extreme bias toward the Global South, and against Africa in particular.
The Los Angeles Times published an article in 2016 that clearly illustrated the one-sidedness: “Only Africans have been tried at the court for the worst crimes on Earth”.
Only Africans have been tried at the court for the worst crimes on Earth https://t.co/lxy2AEejbX
— Los Angeles Times (@latimes) October 24, 2016
That same year, Canada’s state media outlet CBC reported: “International Criminal Court facing exodus of African nations over charges of racism”.
CBC acknowledged that “nine of the 10 cases currently under investigation by the ICC are based in Africa”.
Burundi, Gambia, and South Africa condemned the ICC as a racist institution, vowing to withdraw from the court.
Gambia’s information minister said the ICC “is in fact an International Caucasian Court, for the prosecution and humiliation of people of colour, especially Africans”.
In 2016, Gambia did withdraw from the court.
South Africa left as well – although its high court later revoked the withdrawal.
In 2017, the African Union called on its members to leave the ICC.
How colonialism's legacy continues to plague the International Criminal Court https://t.co/wuV2K1tzTG
— The Conversation Africa (@TC_Africa) July 16, 2020
Gambian ICC prosecutor Fatou Bensouda appeared to try to change the court’s reputation by opening the investigations into US and NATO war crimes in Afghanistan and Israeli war crimes in the occupied Palestinian territories.
The Trump administration hit back with sanctions and threats. Israel’s far-right Prime Minister Benjamin Netanyahu responded by baselessly accusing the ICC of “anti-semitism”.
But Bensouda’s efforts – as minimal as they were – were thwarted when her nine-year term ended in 2021.
She was replaced with the ICC’s current prosecutor, a Karim Ahmad Khan, a British lawyer.
Khan is the brother of right-wing politician Imran Ahmad Khan, a former member of Parliament for the UK Conservative Party (who also happens to be a convicted pedophile).
Almost immediately after Karim Khan took over the ICC, he ended the investigations into US and NATO war crimes in Afghanistan and Israeli war crimes in the occupied Palestinian territories.
Reuters cited Afghan human rights activist Horia Mosadiq, who called Khan’s decision “an insult to thousands of other victims of crimes by Afghan government forces and U.S. and NATO forces”.
This story should be a huge scandal:
The new International Criminal Court prosecutor, @KarimKhanQC, quietly dropped the investigation into US war crimes committed in Afghanistan, supposedly "due to lack of resources"
More impunity for US war criminalshttps://t.co/KFXR7RUDOv
— Ben Norton (@BenjaminNorton) October 6, 2021
Khan claimed in 2021 that the ICC was struggling with a lack of resources and would instead focus on “the scale and nature of crimes within the jurisdiction of the court”.
But the issuing of an arrest warrant for the president of Russia – a non member – over alleged atrocities committed in Ukraine – which is not a full member either – clearly contradicts Khan’s purported commitment to focus on “crimes within the jurisdiction of the court”.
The Israeli media revealed that Israel, which is not a member of the ICC, had “worked hard behind the scenes” to pressure countries that are parties to the court to elect Khan as chief prosecutor.
— Noa Landau נעה לנדאו (@noa_landau) February 12, 2021
In 2022, the Times of Israel praised Khan, noting that the “new ICC prosecutor has not issued a single public statement nor taken any single public action regarding Israel-Palestine to date”.
The Israeli newspaper added excitingly, “Many Israeli officials believe that Bensouda would already have taken actions and maybe even have issued arrest warrants had she continued in office past her nine-year term”.
The ICC is not a UN body – the ICJ is
Washington’s opposition to the International Criminal Court goes back to before it was even officially opened in 2002.
On the last day of 2000, just three weeks before his term ended, US President Bill Clinton signed the Rome Statute that laid the foundations for the ICC. But his successor President George W. Bush later “unsigned” the treaty.
The Bush administration then waged a political war against the newly created ICC.
Arch-neoconservative John Bolton, who helped lead Bush’s State Department, called the US withdrawal from the ICC “the happiest moment of my government service”. (Bolton also threatened the family members of the chief of the Organization for the Prohibition of Chemical Weapons, José Bustani, telling him, “We know where your kids live”.)
Even the billionaire oligarch-funded lobby group Human Rights Watch, which is notorious for its pro-Western bias, warned in July 2002 that the “principle of universal justice is still under serious threat from Washington”. And that was before the US government passed the notorious “Hague Invasion Act”.
Following Bush, Presidents Obama, Trump, and Biden have refused to re-sign the Rome Statute, meaning the US is not a member of the ICC.
After Trump appointed Bolton as his national security advisor, the neoconservative hawk promised in 2018: “We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us”.
Bolton even threatened to arrest ICC judges and prosecutors, proclaiming, “We will ban its judges and prosecutors from entering the United States, we will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans”.
— FRANCE 24 (@FRANCE24) September 10, 2018
Only 123 countries are members of the ICC. (The United Nations recognizes 193 countries on Earth, meaning less than two-thirds are parties to the ICC, and these nations represent less than half of the global population.)
Prominent countries that are not state parties include the US, Israel, Ukraine, Russia, China, India, Pakistan, Indonesia, Ethiopia, Cuba, Vietnam, Türkiye, Saudi Arabia, and Qatar.
Despite popular confusion, the ICC is not an organ of the United Nations. The court is independent from the UN’s official judicial arm, the International Court of Justice (ICJ).
While the ICC was founded in 2002, the ICJ opened in 1945. Further compounding the confusion is the fact that both are located in the Hague, in the Netherlands.
The ICJ litigates state disputes, whereas the ICC focuses on individuals.
But the ICJ has been very limited in its capabilities due to a fundamental problem with the structure of the UN: permanent members of the Security Council can use their veto to block the implementation of the court’s decisions.
The United States has done precisely this, effectively neutering the ICJ.
In 1984, Nicaragua took the US to the Hague over its support for the Contras, far-right death squads that systematically used terrorism against civilians in an attempt to violently overthrow the Central American nation’s revolutionary Sandinista government.
In the case Nicaragua v. United States of America, the ICJ found Washington guilty of violating international law, by supporting the Contra terrorists and putting mines in Nicaragua’s ports.
The ICJ ordered that the US pay Nicaragua reparations. But Washington refused to do so, and used its veto in the Security Council to prevent any implementation of the ruling.