The United States Thinks It’s the Exception to the Rules of War | The Nation
Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.
How should war criminals be held accountable for their actions? At the end of World War II, the victorious Allies answered this question with trials of major German, and Japanese officials. The most famous of these were held in the German city of Nuremberg, where the first 22 defendants included former high government officials, military commanders, and propagandists of the Nazi regime, as well as the banker who built its war machine. All but three were convicted and 12 were hanged..
The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom, and France—intended them as a model of accountability for future wars. The best of those men (and most of them were men) recognized their debt to the future and knew they were establishing a precedent that might someday be held against their own nations. The chief prosecutor for the United States, Robert H. Jackson, put it this way: “We must not forget that the record on which we judge the defendants today is the record on which we will be judged tomorrow.”
Indeed, the Nuremberg jurists fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.
Russia is a major exception, which means that its nationals can’t be tried at the ICC for war crimes in Ukraine. And that includes the crime the Nuremberg tribunal identified as the source of all the rest of the war crimes the Nazis committed: launching an aggressive, unprovoked war.
Guess what other superpower has never signed the ICC? Here are a few hints:
[T]he ICC provisions claim the authority to detain and try American citizens—U.S. soldiers, sailors, airmen and Marines, as well as current and future officials—even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force this summer, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.
That August, in case the US stance remained unclear to anyone, Congress passed, and President George W. Bush signed, the American Servicemembers Protection Act of 2002. As Human Rights Watch reported at the time, “The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the [International Criminal] Court, which is located in The Hague.” Hence, its nickname: the “Hague Invasion Act.” A lesser-known provision also permitted the United States to withdraw military support from any nation that participates in the ICC.
The assumption built into Rumsfeld’s explanation was that there was something special—even exceptional—about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity. Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.
Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.
Republicans like Bush and Trump are not, however, the only presidents to resist cooperating with the ICC. Objection to its jurisdiction has become remarkably bipartisan. It’s true that, in April 2021, President Joe Biden rescinded the strictures on Bensouda and Mochochoko, but not without emphasizing this exceptional nation’s opposition to the ICC as an appropriate venue for trying Americans. The preamble to his executive order notes that
the United States continues to object to the International Criminal Court’s assertions of jurisdiction over personnel of such non-States Parties as the United States and its allies absent their consent or referral by the United Nations Security Council and will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction.
Neither Donald Rumsfeld nor Donald Trump could have said it more clearly.
So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State. When it comes to potential war crimes, the United States remains the Great Exception.
In other words, although this country isn’t a member of the court, it wields more influence than many countries that are. All of which means that, in 2023, the United States is not in the best position when it comes to accusing Russia of horrifying war crimes in Ukraine.
When it comes to poverty among children, the United States is indeed exceptional, even among the 38 largely high-income nations of the (OECD). As of 2018, the average rate of child poverty in OECD countries was 12.8 percent. (In Finland and Denmark, it was only 4 percent!) For the United States, with the world’s highest gross domestic product, however, it was 21 percent.
Then, something remarkable happened. In year two of the Covid pandemic, Congress passed the American Rescue Plan, which (among other measures) expanded the child tax credit from $2,000 up to as much as $3,600 per child. The payments came in monthly installments and, unlike the Earned Income Credit, a family didn’t need to have any income to qualify. The result? An almost immediate 40 percent drop in child poverty. Imagine that!
Given such success, you might think that keeping an expanded child tax credit in place would be an obvious move. Saving little children from poverty! But if so, you’ve failed to take into account the Republican Party’s remarkable commitment to maintaining its version of American exceptionalism. One of the items that the party’s congressional representatives managed to get expunged from the $1.7 trillion 2023 appropriation bill was that very expanded child tax credit. It seems that cruelty to children was the Republican party’s price for funding government operations.
Charles Dickens would have recognized that exceptional—and gratuitous—piece of meanness.
The same bill, by the way, also thanks to Republican negotiators, ended universal federal public-school-lunch funding, put in place during the pandemic’s worst years. And lest you think the Republican concern with (extending) poverty ended with starving children, the bill also will allow states to resume kicking people off Medicaid (federally subsidized health care for low-income people) starting in April 2023. The Kaiser Family Foundation estimates that one in five Americans will lose access to medical care as a result.
There are, in fact, quite a number of other ways in which this country is also exceptional. Here are just a few of them:
Wouldn’t it be wonderful if we were just a little less exceptional? If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans? Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit?
I’m reminded of poet Lloyd Stone’s words that I sang as a teenager to the tune of Sibelius’s ”Finlandia Hymn”:
So, no great expectations in 2023, but we can still hope for a few exceptions, can’t we?