The International Criminal Court was created in 2002 by a founding treaty known as the Rome Statute. The court was designed to be an independent body capable of prosecuting major transgressions such as genocide, war crimes and crimes against humanity.
However, there were also conflicting amendments built into the founding document. Among others, the court’s jurisdiction is usually limited to crimes committed by a national of a state that is party to the treaty or committed on such a state’s territory. Nonetheless, the court is also obligated to investigate any case referred to it by the United Nations Security Council, whether the nation or individuals involved are covered by the treaty or not.
Presently, 114 countries are party to the treaty and thus subject to the jurisdiction of the ICC. Some 34 others, including Russia, have signed the treaty but are yet to ratify it. Thus, they are still outside its jurisdiction. An additional 44 states, including China, have never signed the treaty. And finally, several states, such as the United States and Israel, while having initially adhered to the treaty have subsequently “unsigned” it and thereby withdrawn from its jurisdiction.
Just what is going on here? It would seem that the leaders of many of the major world powers – China, Russia and the United States – know that they operate in the world on the basis of exceptionalism. They actually are or likely will occupy foreign lands, pursue foreign wars, massacre civilian populations, etc. In other words, the behaviour of their nationals is very likely to transgress the laws against war crimes and crimes against humanity, and perhaps genocide as well.
So they seek to stay clear of the ICC’s jurisdiction. And, in the case of the United States, the government is tied so closely to the criminal behaviour of the Israelis that it has dedicated itself to protecting Israeli nationals as well.
That is why, if you look at the record of ICC prosecutions, all of them have to do with smaller states, mostly African, who have relatively little power and no great power patrons.
Yet this skewed record gets worse, for the United States and other great powers, which are not even a party to the Rome Statute, have found a way to turn the court into a weapon to be directed at their assumed enemies. They have done so by taking advantage of the treaty clause requiring the ICC to pursue cases referred to it by the UN Security Council.
Height of hypocrisy
It is the sad height of hypocrisy when the United States, whose leaders claim to have the secret to world salvation (both politically and economically), not only corrupts international law to target others, but simultaneously goes to extraordinary lengths to protect its own nationals from that same law.
For instance, if Americans were to commit war crimes in the territories of states party to the Rome Statute, those states could refer the matter to the International Criminal Court and the court could then go after US citizens. Washington has negotiated bilateral agreements with over 100 nations that specifically forbid those states from doing just that. No nation can receive military aide from the US without making this pledge.
This is the behaviour of a government that knows it acts in a criminal fashion, be it on a small scale or large, and claims the exceptional right to do so with impunity. The leaders of the US do this because, as so many presidents have told us time and again, the free expression and expansion of the American way of life is best for the world. God has decreed it so. This is extraordinary hubris in action and it is why so much of the rest of the world have, at best, a love-hate relationship with the US and what it claims to stand for.
The notable English thinker and politician, Edmund Burke (1729-97), once observed that “the greater the power, the more dangerous the abuse”. What can be more powerful, and therefore more abusive, than great powers claiming the right of free expression in an international arena devoid of restraining rules? In a world that is, like ours, mostly lawless.