On Sept. 21, 2021, President Biden spoke in front of the United Nations for the first time as President of the United States. His speech to the General Assembly occurred in the aftermath of his somewhat controversial decision to remove American troops from Afghanistan the previous month, and as a result, discussion of the United States’ military foreign policy dominated his remarks. At one notable part of the speech, the President made a statement that seemed to encapsulate his personal attitude to how America should act internationally: “As we close this period of relentless war, we’re opening a new era of relentless diplomacy.”
What exactly this means policy-wise remains to be seen over the rest of his tenuous administration, but there is at least one thing the president could push for that would add credibility to his recent statements and show a commitment to the U.S. accepting its diplomatic mission with grace rather than with guns. The United States remains one of the few nations among its allies that has refused to adopt the Rome Statute. To continue to not do so is to essentially treat the United States as above international law and above reproach. Its ratification needs to be among the initiatives of this new, diplomatic United States.
When in Rome, Establish a Court
In 1998, diplomats from around the world met in the Italian capital at the behest of the United Nations to formally draft and create a court designed to deal with a worrying trend of genocide and similar crimes internationally. There had been examples of temporary tribunals to prosecute arbiters of such activity, with the most notable example being the Nuremberg trials after the Holocaust, and there was an increasing codification of international law and international justice system as a result. Yet until 1998, there was not a single, permanent, recognized judicial body with the explicit authority and mission to try individual people accused of crimes against humanity.
To fill this vacuum, the diplomats drafted the Rome Statute of the International Criminal Court, a document to establish an eponymous permanent tribunal with express jurisdiction over “the crime of genocide, crimes against humanity, war crimes, and the crime of aggression,” as well as a further codification of the legal meaning of those crimes. The International Criminal Court, seated in the Hague, has somewhat fulfilled that mission for nearly two decades. As of this writing, most nations in the world have allowed themselves to be party to the statute, and, by proxy, the court’s jurisdiction.
Most of the U.S.’ allies signed and ratified the document relatively quickly after the initial drafting of the treaty. Canada, the United Kingdom, South Korea, Japan, and most of the European Union are all parties to the Rome Statute, along with most UN member states overall. However, there are numerous, notable stragglers that, for whatever reason, refuse to ratify the treaty, including three permanent members of the UN Security Council: China, Russia, and the United States.
Two Decades of Avoidance
When it came time for the U.S. to adopt the Rome Statute, the Clinton administration, already on its way out, resolved to not ratify the treaty due to various concerns about the extent of the power of the ICC. Every administration since has taken a slightly different approach to dealing with the ICC. None of them have chosen to fully adopt it.
The Clinton administration’s policy continued under President Bush. The 107th Congress passed the American Service-Members Protection Act, specifically designed to frustrate the efforts of the ICC and its party states, even to the point of military intervention. Under President Obama, the United States appeared less hostile to the ICC as a whole, yet even then, this “friendliness” on his part only existed insofar as the ICC’s interests did not contradict those of the American military.
It was President Trump and his cabinet, however, that presented the most antagonistic position to the ICC thus far. National Security Advisor John Bolton threatened the Court and its collaborators repeatedly, and the administration was relatively transparent about the fact that these actions were motivated by the desire to protect interests of the American military and specific allies, namely Israel. And President Biden has decided, repeatedly, to repeat the positions and policies of his predecessors, even when he openly campaigned against them less than a year prior.
Holding Ourselves Accountable
For the U.S. to continue to hold such a position as it does in international politics and to also refuse to participate in one of the only opportunities for accountability at an international level is hypocritical. Regardless of whether or not the U.S. truly is the world’s police, it should be party to that world’s laws. To choose not to do so is at best to reduce faith in the modern global system and, at worst, to admit that the U.S. is indeed a guilty party unwilling to face consequences for its actions.
It is likely for this latter reason that so many successive administrations in Washington D.C. have refused to ratify the Rome Statute. President Trump in particular was relatively brazen in his sanctions on ICC chief prosecutor Fatou Bensoud. The fact that they were uniquely enacted immediately after the ICC considered investigating U.S. actions in Afghanistan is no coincidence.
To an extent, President Trump did not have that much to fear. The ICC has consistently been criticized for being too inconsistent and lenient in its enactment of justice for war criminals. To quote the former Dutch minister of foreign affairs, “It’s often easier to prosecute a murderer than a war criminal.”
That being said, if the U.S. intends to live up to the ideals in its founding documents, its government needs to contend with the fact that its leaders, military and civilian, have committed crimes that need to be reproached. It is well known that the U.S. and its allies’ military’s actions have often been improper at best in recent years.
One could argue that if nations such as Russia, China, and North Korea do not allow themselves to be investigated, why should the U.S.? The reason is that the U.S. should hold itself to a higher standard. If it truly is “the land of the free,” the people who commit crimes against humanity, who endanger the freedom of others at home or abroad, should not be the people uniquely protected from the world or from justice. They deserve a fair trial, but they do deserve a trial.
If President Biden truly intends to change the U.S.’ foreign policy from what it was before, ratifying the Rome Statute needs to be a part of that agenda. The first step to changing an issue is to admit one has a problem. In this particular case, the first step to admitting the problem exists is to let the ICC do their job properly, for all other nations and for the U.S.
Image by Chad Greiter is licensed under the Unsplash License.
