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After Undermining International Criminal Court, US Now Wants It to Charge Russians,  

Marjorie Cohn, Truthout,  17 Apr 22

Athough the United States has tried mightily to undermine the International Criminal Court (ICC) since it became operational in 2002, the U.S. government is now pushing for the ICC to prosecute Russian leaders for war crimes in Ukraine. Apparently, Washington thinks the ICC is reliable enough to try Russians but not to bring U.S. or Israeli officials to justice.

On March 15, the Senate unanimously passed S. Res 546, which “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces.”

When he introduced the resolution, Sen. Lindsey Graham (R-South Carolina) said, “This is a proper exercise of jurisdiction. This is what the court was created for.” The United States has refused to join the ICC and consistently tries to undercut the court. Yet a unanimous U.S. Senate voted to utilize the ICC in the Ukraine conflict.

Since February 24, when the Russian Federation launched an armed attack against Ukraine, horrific images of destruction have been ubiquitous. The Office of the UN High Commissioner for Human Rights has documented 3,455 civilian casualties, including 1,417 killed and 2,038 injured as of April 3. Most of those casualties have been caused by explosive weapons with a wide impact area, which includes heavy artillery and multiple launch systems as well as air and missile strikes.

On February 28, Karim Khan, chief prosecutor of the International Criminal Court, opened an investigation into the situation in Ukraine. He said that his preliminary examination found a reasonable basis to believe that alleged war crimes and crimes against humanity had been committed in Ukraine. Khan’s formal investigation will “also encompass any new alleged crimes . . . that are committed by any party to the conflict on any part of the territory of Ukraine.”

As I explained in prior Truthout columns, in spite of U.S.-led NATO’s provocation of Russia over the past several years, the Russian invasion of Ukraine constitutes illegal aggression.

Nevertheless, the ICC does not have jurisdiction to prosecute Russian leaders for the crime of aggression.

The ICC’s Rome Statute Prohibits Aggression

In 1946, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing,” adding that, “to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

U.S. Supreme Court Justice Robert Jackson, chief prosecutor at the Nuremberg Tribunal, called aggressive war “the greatest menace of our times.” Jackson said, “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”

Aggression is prohibited by the ICC’s Rome Statute. Article 8bis defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”

Adopting the central prohibition of the UN Charter against the use of aggressive force, Article 8bis defines an act of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” The charter only allows the use of military force in self-defense or with the consent of the Security Council, neither of which happened before Russia invaded Ukraine.

In order to secure a conviction for aggression, the prosecutor of the ICC must prove that a leader who exercised control over the military or political apparatus of a country ordered an armed attack against another country. An armed attack can include bombing or attacking the armed forces of other country. The attack must be a “manifest” violation of the UN Charter in its character, scale and gravity, which includes only the most serious forms of the illegal use of force. For example, a single gunshot would not qualify but George W. Bush’s illegal invasion of Iraq would………………………………………….

When he introduced the resolution, Sen. Lindsey Graham (R-South Carolina) said, “This is a proper exercise of jurisdiction. This is what the court was created for.” The United States has refused to join the ICC and consistently tries to undercut the court. Yet a unanimous U.S. Senate voted to utilize the ICC in the Ukraine conflict.

Since February 24, when the Russian Federation launched an armed attack against Ukraine, horrific images of destruction have been ubiquitous. The Office of the UN High Commissioner for Human Rights has documented 3,455 civilian casualties, including 1,417 killed and 2,038 injured as of April 3. Most of those casualties have been caused by explosive weapons with a wide impact area, which includes heavy artillery and multiple launch systems as well as air and missile strikes.

On February 28, Karim Khan, chief prosecutor of the International Criminal Court, opened an investigation into the situation in Ukraine. He said that his preliminary examination found a reasonable basis to believe that alleged war crimes and crimes against humanity had been committed in Ukraine. Khan’s formal investigation will “also encompass any new alleged crimes . . . that are committed by any party to the conflict on any part of the territory of Ukraine.”

As I explained in prior Truthout columns, in spite of U.S.-led NATO’s provocation of Russia over the past several years, the Russian invasion of Ukraine constitutes illegal aggression.

Nevertheless, the ICC does not have jurisdiction to prosecute Russian leaders for the crime of aggression……………….

“So, the U.S. wants to help the International Criminal Court prosecute Russian war crimes while barring any possibility the ICC could probe U.S. (or Israeli) war crimes,” observed Reed Brody, a commissioner for the International Commission of Jurists, an international human rights nongovernmental organization.

U.S. hypocrisy is no more apparent than in the first “Whereas” clause of the Senate’s unanimous resolution condemning Russia. It says, “Whereas the United States of America is a beacon for the values of freedom, democracy, and human rights across the globe . . .”

One hundred members of the U.S. Senate affirmed that sentiment in spite of the U.S. wars of aggression in Kosovo, Iraq and Afghanistan, and the commission of U.S war crimes. If the senators truly believe that the ICC is dependable enough to prosecute Russian leaders, they should push Biden to send the Rome Statute to them for advice and consent to ratification. What’s good for the Russian goose should also be good for the U.S. gander.  https://truthout.org/articles/after-undermining-international-criminal-court-us-wants-it-to-charge-russians/?eType=EmailBlastContent&eId=1f951de0-ce82-4df9-b85e-0a76f6faf974

April 18, 2022 - Posted by Christina Macpherson | Legal, USA