On Feb. 27, 2022, Russian soldiers
entered the Ukrainian city of Bucha, a quiet suburb of Kyiv.
At the end of March, after weeks of occupation,
they retreated.
These images are based on real photos of what they left behind.
Russian soldiers had massacred civilians
and left their bodies out in the open.
Eyewitnesses report that people were subject to systematic
torture and executions, and that people's homes were looted by invading forces.
All potential war crimes.
So can the Russian state, along with President Vladimir Putin, be put on
trial by the International Criminal Court, like the United States wants?
But Russia isn't a member of the ICC,
meaning their leaders can't be tried by the court.
And they're not the only ones.
The United States isn't a member of the court either.
That's why no American presidents or officials were put on trial for U.S.
actions during the so-called war on terror, even after the world saw images
of tortured prisoners at Abu Ghraib and the aftermath of civilian massacres
in places like Kandahar in Afghanistan and Nisour Square in Baghdad, Iraq.
We tortured some folks.
But how exactly has the U.S.
been able to place itself beyond the reach of accountability?
And how has this undermined the ICC — and international law —
when it goes after other bad actors?
The decision of one man
to launch a wholly unjustified
and brutal invasion of Iraq.
I mean, of Ukraine.
Iraq, too. Anyway...
International law only came into being after World War II,
during the Nuremberg trials,
when countries came together
to prosecute Nazi officials for their crimes against humanity.
Then, in 1949, nations came together at the Geneva Conventions
and came up with a list of war crimes, including willful killing and torture.
But no institutions were ever built to enforce the agreement made at Geneva.
And for decades, the Nuremberg trials remained
the only example of an international tribunal.
But then in the '90s,
war broke out in both the Balkans and Rwanda.
Belligerents in both wars went on to commit
multiple atrocities, including genocide.
To investigate these crimes, the United Nations
organized two separate ad hoc tribunals.
Countries then began to unify around the desire for a permanent court.
This push resulted in the Rome Statute, which was adopted by the UN
General Assembly in 1998.
I would hope that the establishment of this court will send a powerful message
across the world that impunity will no longer be tolerated.
And those who commit crimes against humanity, war crimes and genocide
will be made to account for it and be put in the dock and judged.
By 2002, more than 60 countries had ratified the Rome Statute,
officially establishing the ICC.
Today, 123 countries
have ratified the statute and are members of the court.
But guess who never got on board?
The United States was one of only seven nations to vote against the Rome Statute
when it was brought to the UN General Assembly in 1998.
U.S. Ambassador David Scheffer told the UN, quote, "We do not accept
the concept of universal jurisdiction as reflected in this statute."
One of the things we agree on, actually, is the approach you've taken to this treaty.
First of all, you did a great job.
Secondly, you reach the right conclusion for our country.
The other countries who voted against the Rome Statute are China,
Iraq, Libya, Yemen, Qatar and Israel.
Over time, more countries signed it, but 40 still haven't done so.
But one region of the world that has embraced the ICC?
Africa.
Thirty-three of the court's 123 member countries are in Africa.
When you look at the cases that have gone to trial at the ICC,
it's clear that Africa is a huge focus.
When you look at the statistics, it's quite stark.
The reality is that, since 2002, there have been 22 cases
in nine situations and all of those cases
have involved Africans.
There have been 27 warrants,
nine summonses to appear, all Africans.
But the court's referral process has disadvantaged
African countries while privileging powerful ones.
See, one of the ways that cases can be brought
to the ICC is through a referral from the UN Security Council.
It is not a democratic body.
This is an important point.
Did you catch that?
It is not a democratic body.
What this means is that the UN
basically can't bring cases to the ICC if they involve Security Council members,
especially permanent members like Russia and the United States,
because those countries can just veto the decision and remain unaccountable.
African states have long argued that this needs to be rethought,
that there needs to be reform, that bringing in a political body —
and a political body that has veto power,
where states have veto power — and one vote against
can stop the pursuit of criminal justice.
In addition to rejecting ICC membership,
the U.S. quickly made moves to undermine the court.
In 2002, under then-President George W. Bush and during the so-called war on terror,
Congress passed another law,
prohibiting the U.S. from cooperating with the ICC at all.
It even included a provision authorizing the president
to invade The Hague if Americans were put on trial there.
No, seriously, that's actually a law.
And remember, this was all happening while the U.S.
was torturing prisoners at sites like Abu Ghraib.
While the U.S. convicted a handful of individuals responsible for war crimes
during the so-called war on terror,
many others, especially higher-ups, went unpunished.
The decision of one man
to launch a wholly unjustified
and brutal invasion of Iraq.
I mean, of Ukraine.
Iraq, too. Anyway...
But the U.S. has supported the ICC in some cases that involved other countries.
Like during the Obama administration,
when the ICC went after Libyan leader Muammar Gaddafi.
The International Criminal Court
identified Gaddafi as having violated international law.
Over time, we have the U.S.
referring and participating in the referral of cases.
We saw that in Libya.
We also saw that with the Darfur situation.
And then a tremendous amount of support for the transference of
Africans who have been indicted and wanted by the court.
But then, in 2020, the ICC finally began to look into crimes
committed in Afghanistan.
When it came to the investigation into Afghanistan, the U.S.
support dwindled completely, and we had a very aggressive
dismissal and repudiation of support.
I mean, the most aggressive yet.
After news of the investigation broke, Trump issued an executive order
that effectively sanctioned all individuals working for the ICC.
Their U.S. bank accounts could be frozen and their visas revoked.
While the Biden administration has since lifted these sanctions, it still opposes
the court's investigations in both Afghanistan and Palestine.
The main argument that the U.S.
has used against the ICC's investigation?
Surprise, surprise — that the U.S.
is not party to the Rome Statute.
The thing is, that's true of Russia as well.
- Now, with the war in Ukraine,
certainly we've seen Biden insisting on war crimes.
The U.S.
has called on the ICC to play a more profound role.
We helped establish investigations through the UN
Human Rights Council and the OSCE of possible violations by Russia.
And we welcome the investigation opened by the ICC prosecutor.
As long as it doesn't have to do with the U.S.
or, of course, Israel, I think
we receive profound support.
The current push to hold Russia accountable at the ICC
has led some U.S. politicians to rethink their own country's policies.
Rep. Ilhan Omar, who sits on the House
Foreign Affairs Committee, introduced a resolution calling on the U.S.
to become a full member of the ICC.
She also introduced a bill to repeal The Hague
Invasion Act that was passed in 2002.
Now, while these reforms would be welcome, many countries
would like to see the ICC itself make changes.
One of the things that African states have been insisting on
is the expansion of the crimes that international criminal justice
takes on, including things like piracy, terrorism, mercenaries,
corruption, money laundering, traffic in drugs, traffic
in persons, as well as the traffic in hazardous wastes
and the explicit exploitation of natural resources.
Whether these reforms would ever happen remains to be seen,
but without any changes, it's hard to see
how the court can live up to the UN's original vision.
I would hope that the establishment of this court would send
a powerful message across the world that impunity will no longer be tolerated.