By Elizabeth Beavers

In a recent House Foreign Affairs Committee hearing, Representative Ilhan Omar asked Secretary of State Antony Blinken an obvious question. She first reflected on the fact that the United States opposes International Criminal Court (ICC) probes into alleged war crimes in Afghanistan and Palestine because such investigations would include examining US and Israeli actions, respectively. She also noted that neither Israel nor the United States have utilized their domestic justice systems to hold their own officials accountable for these atrocities. And so she posed this query: if both domestic and international courts are unavailable to victims of atrocities in Afghanistan and Palestine – whether committed by Hamas, the Taliban, Israel, or the United States – where are those victims supposed to go for justice? 

For this, she was roundly condemned, including by her own party’s leadership. Progressives rightfully pointed out that the bad-faith backlash was rooted in racism, misogyny, and anti-Muslim bigotry. Unfortunately, the controversy has drawn attention away from Omar’s original point. Her question gets at a truth that is crucial to acknowledge and confront: there is a two-tiered system of international justice, and the United States plays an active role in maintaining that injustice. Here is what progressives should know about the legal and historical context behind Omar’s important line of questioning.

Rep. Omar’s question was about two specific ICC investigations that the United States opposes

In March 2020, International Criminal Court Prosecutor Fatou Bensouda opened a formal investigation into crimes in Afghanistan. This means that the Prosecutor reviews evidence of crimes committed by all parties to the conflict, which includes the Afghan government, the Taliban and, yes, the United States. In February 2021, the ICC also elected to move forward with an investigation requested by Palestine, which means scrutinizing not just Hamas and Palestinan armed groups, but also Israel. 

However, the United States has unequivocally opposed both the Afghanistan and Palestine investigations. Thus, when Omar observed that atrocities have been committed by the United States, Hamas, Israel, Afghanistan, and the Taliban, she was not arbitrarily listing international actors. She was referring to specific ICC investigations in Afghanistan and Palestine that the United States is working to oppose. 

When Omar asked where victims of atrocities committed by those actors are supposed to go, she was simply asking the Biden administration to reconcile its stated goal of “promoting human rights and accountability for rights abuses and violations” with its refusal to support concrete mechanisms for that accountability when it comes to crimes committed by the United States and its allies.

US-ICC tensions are bipartisan and longstanding

The United States’ posture toward the International Criminal Court has always been steeped in American exceptionalism. No US administration has ever supported becoming a member of the Court by ratifying its governing treaty, known as the Rome Statute. The Clinton administration signed the treaty, but did not seek to ratify it, and George W. Bush’s administration promptly “un-signed” it. The Bush administration further sought to shield the United States by negotiating a series of bilateral immunity agreements, threatening to revoke aid to countries that refused to protect US personnel against the ICC. 

This fury of anti-ICC action culminated in a truly bizarre piece of legislation that remains active law to this day: the American Servicemembers Protection Act of 2002, better known as the “Hague Invasion Act,” which would trigger an authorization of military force if the ICC attempts to detain any US or allied personnel, and also bars any cooperation in the Court’s investigations. 

Tensions between the United States and the ICC came to a head during the Trump administration when Prosecutor Bensouda opened the Afghanistan investigation and Trump retaliated by instituting sanctions and a travel ban against her. The Biden administration lifted the Trump-era sanctions and travel ban but reiterated its opposition to the ICC’s Afghanistan and Palestine investigations. Thus, although the Biden administration has rolled back the visible, punitive elements of the Trump-era ICC policy, it has maintained the same fundamental position: opposition to accountability for atrocities committed by the United States and its powerful allies. 

Choosing Impunity

The United States insists that it opposes these investigations as neither the United States nor Israel are members of the Court and thus should not be under its jurisdiction. This logic is clearly flawed for two key reasons. 

First, it misrepresents ICC jurisdiction – both the Afghanistan and Palestine investigations are well within the ICC’s authority. A potential case (a “situation,” in the Court’s parlance) regarding genocide, war crimes, or crimes against humanity committed in a member state’s territory or by its nationals can arise if a member state requests it (as in the case of Palestine), or if the Court’s Prosecutor takes it up on her own with approval from the Court’s Pre-Trial Chamber (as in the case of Afghanistan).  

Secondly, and this is key, the ICC adheres to a principle called “complementarity,” which means that the Court will not proceed on a case if the country in question is handling the matter in its own domestic justice system. Thus, if the United States demonstrated that it was at all willing to conduct genuine criminal investigations into its own citizens’ crimes in Afghanistan, the ICC would have no standing to pursue the case. 

In 2018, former National Security Advisor John Bolton acknowledged this in insisting that the ICC was:

superfluous, given that domestic US judicial systems already hold American citizens to the highest legal and ethical standards…When violations of law do occur, the United States takes appropriate and swift action to hold perpetrators accountable. We are a democratic nation with the most robust system of investigation, accountability, and transparency in the world. We believe in the rule of law, and we uphold it. We don’t need the ICC to tell us our duty or second-guess our decisions.

Needless to say, this has not happened. The United States maintained at least four “black sites” on Afghan soil as part of the post-9/11 CIA program that facilitated rendition, enforced disappearances, and torture. The US officials who planned, carried out, covered up, and defended these monstrosities have not only never faced prosecution – they have never faced even an investigation. Many have returned to powerful positions in government, business, and academia, and some have sold memoirs about their crimes.

These officials’ actions harmed real people. One Afghan black site was described by an interrogator as “the closest thing he had seen to a dungeon,” where men were chained to the ceiling clad only in diapers, prevented from sleeping, left that way for days or weeks, causing some to experience hallucinations. Many detainees began to cower when their cell doors were opened. One man was literally tortured to death, and others were subjected to humiliating nudity and sexual assault. These are the abuses that are known – there has still been no full accounting of everything that happened.

There is no need for nuance: these actions were crimes. Torture is a crime against humanity and a war crime under the Rome Statute, but is also indisputably a grave crime under US domestic law and treaties that the United States has willingly ratified. 

Famously, soon after he was elected, President Obama declared his desire to “look forward, not backward.” And that is exactly what happened. There have been administrative and congressional fact-finding investigations, but they were limited, took place outside the justice system, and their findings remain mostly classified. In 2009, Attorney General Eric Holder did appoint US Attorney John Durham to conduct a “review,” but he was not an independent counsel, it was not a criminal investigation, and he was barred from reviewing abuses conducted under the auspices of the “torture memos.” Durham eventually closed his review without initiating charges or prosecutions, and no concluding report or findings from his investigation have been made public. 

The United States is perpetuating a global justice apartheid

The ICC is supposed to be a last resort against rogue actors committing atrocities with impunity. In this case, that is the United States. If this were any other country, the path forward would seem clear: either the United States should initiate genuine investigations and prosecutions into its own atrocities, or it should admit it is a country that the Rome Statute defines as “unable or unwilling” to hold its own citizens accountable, and subsequently submit to the Court’s jurisdiction.

But instead, US ICC policy is American exceptionalism and white supremacy in action. Most of the world’s resources, people, and power belong to states that are not members of the ICC. The resulting status quo is unacceptable: a two-tiered system of international accountability that results in justice for some but impunity for most, determined by the relative power of the states perpetrating the crimes. This can already be seen in the ICC’s thus-far exclusive and much-maligned prosecutorial focus on Africa. Scholar Kathryn Sikkink has pointed out that “the real test of international law and new norms will be their ability to influence the actions of even the most powerful states.” 

She’s right. So long as the ICC operates without the cooperation of global superpowers, it will continue to replicate injustices, because amnesty for the powerful and standard criminal procedure for everyone else is no justice at all. So, here is the Biden administration’s effective answer to Omar’s question (at least for now): the United States is indeed a champion of accountability and the rule of law, and encourages victims of atrocities to seek justice – but only so long as such efforts do not threaten US wealth, military supremacy, or power.

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Elizabeth Beavers is an attorney, analyst, and advocate for peace and security. She tweets at @_ElizabethRB.