America has a love-hate relationship with the International Criminal Court (ICC)

By Tom Arms

America has a love-hate relationship with the International Criminal Court (ICC). At the moment it is a virulent hate.

Ironically, Washington also claims to be the chief supporter of International law. “The United States does believe that international law matters,” said John Bellinger, the State Department’s chief Legal Adviser. “We help develop it, rely on it, and abide by it.”

The problem is that you cannot cherry pick the law. To do so is to choose the road called hypocrisy which leads—eventually—to chaos.

It is the charge of hypocrisy that America risks in its relations with the ICC. It applauded seeing the world’s top criminal court send brutal African dictators to prison. It has celebrated the court’s warrants for the arrest of Vladimir Putin. But it has condemned as “outrageous” the decision of ICC Chief Prosecutor Karim Khan to request warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity committed during the Gaza War.

The problem for America was the activities of its soldiers and the CIA around the world

There are several reasons for American duplicity. Washington fears that the arrest warrants will only make the Israelis more intransigent. It also believes that it is important to be seen to be supporting an ally; and, finally there is the sovereignty issue. As a super power, Washington has difficulty with any international law or organization which appears to supersede American law.  The US, for instance, has failed to ratify the UN Convention on the Law of the Sea and will almost certainly pull out of the climate change convention—again– if Donald Trump is elected.

Washington has had doubts about the ICC since before its founding by the Rome Statute in 1998. It refused to sign the treaty documents, although 123 other countries (including Britain) have. If a country is a signatory to the Rome Statute then they are obligated to detain and extradite anyone for whom the ICC has issued an arrest warrant. Being a non-signatory, does not protect a country’s citizens from investigation.

The problem for America was the activities of its soldiers and the CIA around the world. In August 2002 President George W. Bush signed the American Service Members Protection Act, aka “The Hague Invasion Act”. This gave the president the power to “use all means necessary and appropriate to bring about the release of any US or Allied personnel being detained, or imprisoned, on behalf of, or at the request of, the International Criminal Court.” Effectively this meant that any country that carried out an ICC arrest warrant against an American citizen risked the wrath of Washington.

In 2009, the Department of Justice announced that it was launching an investigation into alleged abuse in Afghanistan. They opened 101 cases of CIA abuse of detainees.

Under President Barack Obama Washington’s relationship with the ICC “evolved into positive engagement.” But it quickly deteriorated under Donald Trump when Khan’s predecessor, Fatou Bensouda announced that he would be seeking warrants for war crimes in Afghanistan. A furious Trump threatened prosecution, financial sanctions and barred Bensouda and his colleagues from visiting the US. Attorney General Bill Barr accused the court of “corrupt practices.”

Under Biden relations again improved. The sanctions against Bensouda were lifted and the State Department expressed delighted support for the arrest warrants for Putin. Then Gaza pushed everything back to square one.

BUT– as with most legal matters, there is a loophole. It is called the “Principle of Complementarity.” This recognizes that the ICC is a “court of last resort” to which victims can appeal only if the offending state is unwilling or unable to investigate itself. Israel can simply head off the arrest warrants (which still have to be approved by three of the court’s 18 judges), by announcing an investigation into its actions in Gaza.

The US tried this route. In 2009, the Department of Justice announced that it was launching an investigation into alleged abuse in Afghanistan. They opened 101 cases of CIA abuse of detainees. Two of the detainees died. But as of 2024 no charges had been brought and Human Rights Watch reported that none of the victims had even been interviewed.

World Review

British Prime Minister Rishi Sunak is gambling on British xenophobia to return him to Downing Street. Or at the very least limit the damage to his troubled and divided ruling Conservative Party.

Of course, there are other factors he is throwing into the electoral mix. The lowering of inflation, the threat of China and the Ukraine War being a few of the political ingredients he is hoping will counter 14 years of Conservative austerity, corruption and misrule.

But playing on the average British voter’s deep-seated fear and mistrust of foreigners is one of the few issues the prime minister can control. And at the same time claim that the opposition Labor Party will not or cannot control.

Immigration played a major role in the Brexit vote. It should not have. But it did and being tough on it proved to be a vote winner. The average Briton dislikes foreigners, especially when they speak differently, pray differently, dress differently and eat different foods. They are perceived as a threat to British culture.

The “small boats people”—as they are known—are in their own xenophobic category. Not because there are a lot of them (29,347 in 2023), but because they are visible. They are shown on the nightly news and British Coast Guard vessels are sent to rescue them and long-faced quayside crowds watch them land.

Rishi Sunak’s policy of shipping them off to Rwanda as soon as their feet touched British soil has been one of his government’s top priorities. It was blocked by the UK Supreme Court because under British law people cannot be deported to unsafe countries. So the Sunak government passed a law which said parliament had the right to declare a country safe and to overrule the courts if they ruled otherwise.

With the legislation in place, Sunak pledged that the first refugees would be Rwandan-bound “within weeks.” That was another untruth. More legal challenges– and possibly industrial action by civil servants—are planned and would have delayed the Rwandan flights for several more months.

Calling the election for the 4th of July has turned the Rwanda Policy into an election issue. Vote for me, says Sunak, and we will air freight the refugees to Rwanda. Vote for Labor and the Rwanda policy is lost.

___________________

After next Sunday Mexico will have its first woman president. That is guaranteed because the two main contenders are women.

The favorite is Claudia Sheinbaum, the hand-picked successor of popular populist Anders Manuel Lopez Obrador leader of the Morena Pary. With a week to go, she is 24 points ahead of her nearest rival—businesswoman and coalition candidate Xochitl Galvez.

The elections are important because the Mexican-American relationship is having an increasing impact on world affairs. It affects migration, the illicit drug trade and world economic issues. If Sheinbaum wins with the majority that she is expected to secure than she will have considerable latitude to either crackdown or cooperate with her super power neighbor to the north.

Because she has been handpicked by President Obrador the most likely scenario will be more of the same.

On immigration that means cooperation. During the Biden Administration, it has involved the Mexican National Guard in arresting migrants from central and South American travelling north through Mexico to the United States. It has also meant accepting without question migrants returned by the US authorities to Mexico.

The drug trade and the Mexican drug cartels are a sore point. The US wants the Mexican government to do more to crack down on the cartels, especially as related to fentanyl. Obrador says that the best way to stop the flow of drugs is to end the demand by American drug users. He is particularly opposed to agents from the US Drug Enforcement Agency operating on Mexican soil.

Mexican-American trade is booming. This is because of punitive US tariffs on Chinese goods. Chinese firms that exported from China have moved operations to Mexico as have foreign companies that had export-led production based in China. Mexico—not China—is now America’s biggest trading partner. This could lead to increased pressure on American companies in Mexico to “re-shore” to America. Or it could, Mexicans hope, make Mexico “too big to fail.”

Of course, the scenarios could dramatically change if the Mexican elections are followed by a Donald Trump victory in November. Trump was not popular south of the border during his first administration. The likelihood is that he will be more unpopular if given a second chance. He has spoken about sending US troops in Mexico to stop immigrants and the drug trade. In the past, he has pressed American companies to leave Mexico and has threatened to send 11 million immigrants—mainly Mexicans—to the countries of their birth.

Booting millions of Mexicans out of the US would have a huge detrimental impact on the Mexican economy. The Mexican-American community is estimated to remit $63.3 billion back home every year.

Both Sheinbaum (if she is elected) and Trump (if he is elected) should remember that every border has two sides and each side has a story.

___________________

Tom Arms is foreign editor of Liberal Democrat Voice. He is also author of “The Encyclopedia of the Cold War” and “America Made in Britain.” You can subscribe to his blog at observationsofanexpat.substack.com

Read: Observations of an Expat: Robert Fico: From Sinner to Saint to Martyr