by Faramarz Farbod
The U.S. has a bloody history of trampling on the sovereignty of other nations and committing atrocious acts, including torture, against the peoples of these countries. The U.S. also uses all means it deems necessary to stop others from effectively challenging the impunity it enjoys in the international arena for its nefarious behavior. However, none of this would be possible without a subservient intelligentsia at home that sets the boundaries of acceptable thought and critique. In this essay I aim to support the above propositions through a brief examination of (1) the use of torture as an instrument of U.S. foreign policy, with a particular focus on the first decade of the present century, (2) the U.S. relation with the International Criminal Court (ICC) and President Trump’s recent Executive Order (EO) against that court, and (3) the mainstream liberal critiques of Trump’s ICC EO.
Since 1950 the U.S. has developed a covert capacity to torture. Most North Americans are unaware of this fact and that the U.S. has used this capacity where and when it has deemed it necessary globally. When at times the use of torture is exposed or revealed, the mainstream pundits and politicians treat it as an isolated event and as the work of a few rogue elements. They invariably ignore the long history of the CIA working to develop torture techniques and using them from Asia to Latin America: like the CIA’s Phoenix program of torture and assassination that killed up to 50,000 Vietnamese from 1968 to 1972, or the CIA’s help in establishing repressive police and state security forces in numerous countries like Iran, Brazil, Uruguay, Honduras, or the CIA’s drug experiments that were exposed in the U.S. Senate Church Committee in 1975, to name just a few examples. And when at times the U.S. must refrain from direct use of torture, it can resort to ‘rendition programs’ or the sending of targeted individuals to allied countries that practice direct torture.
The most recent exposure of the use of direct torture by the CIA dates back to 2004 when pictures of Iraqi detainees being tortured in the Abu Ghraib prison surfaced. The U.S. had invaded and occupied Afghanistan in 2001 and Iraq in 2003. The CIA tortured detainees according to a 2014 report by the U.S. Senate Select Committee on Intelligence. What had begun as the use of torture on captured al-Qaeda detainees in Afghanistan soon spread to thousands of Iraqis once resistance to U.S. occupation began in mid-2003. It was then revealed that the U.S. had indeed built a global gulag of torture centers, referred to as ‘black sites,’ in its so-called ‘war on terror.’
The 2014 Senate report details a variety of torture practices, including “slaps and ‘wallings’ (slamming detainees against a wall)… used in combination, frequently concurrent with sleep deprivation and nudity,” “waterboarding… inducing convulsions and vomiting,” “keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads,” “‘rectal rehydration’ or rectal feeding without documented medical necessity,” “ice water baths’,” “threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to ‘cut’ [a detainee’s] mother’s throat,” detainees “kept in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste,” “lack of heat” in cold cells, and detainees subjected to “a ‘rough takedown,’ in which approximately five CIA officers would scream at a detainee, drag him outside of his cell, cut his clothes off, and secure him with Mylar tape. The detainees would then be hooded and dragged up and down a long corridor while being slapped and punched.”
Clearly, where there is such brutality, rule of law, justice, human rights and dignity vanish.
Impunity for the Strong, Accountability for the Weak
On 11 June 2020 Trump administration, undeterred by a global pandemic and an unprecedented economic shutdown, found the time to sign an EO declaring a ‘national emergency’ and imposing sanctions on the Hague-based ICC, punishing it for its insubordination to the wishes of the U.S. officials. The ICC is the only permanent court with a mandate to hold those responsible for crimes within its jurisdiction accountable to rule of law and justice; these crimes are the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The Trump’s EO revokes the visas of ICC officials, imposes travel restrictions, and freezes the assets and properties of the ICC judges, officials, investigators, lawyers, even witnesses and scholars whose work the court may cite or rely upon, as well as of any other persons, organizations, or even states that may aid the court in its work.
In signing the EO, the U.S. was responding to the ICC decision on 5 March 2020 to authorize its Chief Prosecutor, Fatou Bensouda, to commence an investigation into potential crimes by U.S. Armed Forces and the CIA personnel in Afghanistan, as well as to the Prosecutor’s push to commence a preliminary investigation into potential Israeli crimes in the Palestinian occupied territories. These ICC decisions represent a potentially important break from the past investigations by the court. The African states have long criticized the ICC for only going after African officials and ignoring the U.S. and European officials and personnel. They African Union even contemplated exiting the Rome Statute. Some critics argue that the ICC has served the interests of the former colonial states and not served its purpose as mandated by the Rome Statute. They urge the ICC to decolonize and stop looking the other way regarding alleged U.S. and European crimes. The ICC decisions on the Afghanistan and Palestine situations could be the break that it needs to gain the respect of many in the Global South.
The ICC can commence investigations when cases are referred to it either by the UN Security Council or the states that are party to the court and its founding document (the Rome Statute), or if the Prosecutor’s office decides to do so on its own initiative. And therein the latter, lies the trouble from the U.S. perspective. The U.S. controls the UN Security Council via its veto power and has entered into dozens of bilateral agreements with states that are party to the ICC in order to ensure that they would not surrender U.S. nationals to the court for alleged crimes. What the U.S. cannot control is the office of the Chief Prosecutor if that office chooses to pursue investigations into alleged US crimes.
Washington’s main concerns with the ICC (dating back to the early 1990s when the idea of an international criminal court was discussed) have been (1) the Prosecutor’s independent authority to commence investigations in the absence of referrals from either the UN Security Council or states that are party to the court, (2) the court’s jurisdiction over ‘crime of aggression,’ and (3) the court’s claim of jurisdiction over nationals of countries not party to the court. The U.S. insists that ICC’s jurisdiction over crime of aggression be linked first to the Security Council decision determining that a state has committed such an act. The U.S. also worries that the court could initiate investigations against its personnel, even though the U.S. is not a party to the court, since the court will have jurisdiction over nationals of non-state parties who have allegedly committed crimes in the territories of states who are party to the statute.
The heart of the issue for Washington is how to maintain its impunity in the international arena, a concern that the state and its apologists regularly cloak by stating that they care about protecting “the sovereignty of individual nations.” (‘Sovereignty’ like ‘national security,’ ‘national interest’ and the like have double meanings, a dictionary meaning and another technical one used politically to cloak intent.) To secure that end the U.S. has shown that it will go to any length necessary. For example, a few months after the U.S. invaded Iraq in 2003, Congress passed the American Service-Members’ Protection Act, which required the Bush administration to cut off financial aid to any state party to the ICC that would surrender U.S. nationals to the court and even authorized the U.S. president to rescue any of its or its allies’ personnel held by the ICC – thereby leading some to refer to the law as “the Hague Invasion Act.”
Years ago, the US dissident Noam Chomsky said that “If the Nuremberg laws were applied, then every post-war American president would have been hanged.” Many may have felt that this is an outrageous commentary worthy of censure in polite company, but it would be folly to think that state officials in high places don’t worry about such prospects. Avoiding prosecution and protecting themselves, including the President, is a top concern of officials wherever it becomes a possibility. Here is how the same 2003 law expressed this fear: “In addition to exposing members of the Armed Forces of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court. Particularly if the Preparatory Commission agrees on a definition of the Crime of Aggression over United States objections, senior United States officials may be at risk of criminal prosecution for national security decisions involving such matters as responding to acts of terrorism, preventing the proliferation of weapons of mass destruction, and deterring aggression. No less than members of the Armed Forces of the United States, senior officials of the United States Government should be free from the risk of prosecution by the International Criminal Court, especially with respect to official actions taken by them to protect the national interests of the United States.”
It is not just the top U.S. officials who have expressed concern with protect- ing top officials from criminal investigations and prosecutions. “Israel is preparing a secret list of hundreds of its officials who are liable to be tried in The Hague on war crimes charges. The government is warning them not to travel in case they are arrested.” Reportedly, the list has the names of “between 200 and 300 military and intelligence officials who could be arrested and put on trial for war crimes committed against civilians in the occupied Palestinian territories of the West Bank and the Gaza Strip.”
Hence the Trump administration’s use of sanctions against the ICC for its insubordination to Washington regarding the Afghanistan and Palestine situations.
Mainstream Critics are Apologists for U.S. Aggression
One should not look for liberal or mainstream critics of President Trump’s 11 June EO to take principled stances against U.S. aggression abroad. That much should be clear. However, given the intra-elite strife today regarding the Trump presidency, one is never sure whether an elementary observation that acknowledges the existence of a broad consensus on core U.S. interests abroad needs no repeating.
On the one hand, there are rightwing voices that praise Trump for signing the EO They consider the ICC to be a supranational court without jurisdiction over the U.S. constitution. They see Trump’s action as “push back against the ICC’s infringement of U.S. sovereignty,” see the ICC engaging in politicized cases against the U.S. and Israel, and Trump as protecting U.S. personnel. “America must not be held accountable to a foreign court,” said James Carafano, vice president of the Davis Institute for National Security and Foreign Policy and E.W. Richardson fellow, “that wants to paint our brave men and women in uniform as monsters.”
Then there are the mainstream critics. Here is one William Burke-White, a University of Pennsylvania law professor and visiting fellow at the Brookings Institution, who served in the Obama administration on the Secretary of State Hillary Clinton’s Policy Planning Staff from 2009-2011. He wrote a critical piece for the Brookings Institution about Trump’s signing of the EO. He criticizes it on several grounds including its ineffectiveness against the court personnel who may be motivated less by finances and more by conscience and who are likely to have little assets to begin with. But his final and most important criticism is rather revealing of the liberal position. “Finally,” he writes, “the use of U.S. sanctions against ICC personnel is a dangerous step toward undermining one of the most powerful and important tools of U.S. foreign policy — international sanctions.” He goes on: “In a world where the use of force is difficult and often ineffective, carefully crafted and strategically applied sanctions are a key tool of U.S. power. For sanctions to work, however, they must be used judicially and viewed as broadly legitimate. Overuse of sanctions creates incentives for actors to find work-arounds to avoid the pain. Sanctions that are seen as illegitimate fail to garner international cooperation for enforcement and compliance. Applying tough sanctions against the personnel of an international organization undermines their efficacy and legitimacy for times when they could actually advance U.S. national security.”
Here William Burke-White is most concerned that Trump’s ill-advised use of sanctions against the ICC threatens above all to undermine the legitimacy and efficacy of sanctions as a key U.S. foreign policy tool. Note that sanctions are a form of economic warfare with devastating consequences for the people’s livelihood and wellbeing and that the U.S. is currently imposing a form of sanctions on about a third of humanity to punish uncooperative and revisionist states who the U.S. views as challenging its dominance.
Another liberal critic, Rob Berschinksi, a Senior Vice President for Policy at Human Rights First, and a former Deputy Assistant Secretary of State for Democracy, Human Rights and Labor in the Obama administration, writes that “the ICC EO threatens to undercut the legitimacy of other important U.S. targeted sanctions programs.” He continues: “Sanctions are among the most important, and most coercive, tools in U.S. foreign policy short of war. The dollar’s position as the world’s reserve currency gives our economic sanctions unprecedented power. And in keeping with a foreign policy that prioritizes unilateralism and frequently shuns expertise, the Trump administration has responded to the United States’ unique position by treating sanctions as a tool of first resort.”
It’s noteworthy that Berschinksi is also interested in not giving any ammunition to those we may think of as more principled critics of US policies abroad. “No matter what one thinks of the legitimacy of the ICC’s investigations,” he notes, “threatening the use of the most severe tool in the U.S. diplomatic arsenal against ICC officials plays to the advantage of every critic of unilateral U.S. action.” And who wants that!
“The upshot of this ill-advised decision,” he continues, “will be a delegitimization of U.S. sanctions programs in general.” He worries that “the tool’s overuse will incentivize the EU, China, and other actors to consider ways to evade U.S. sanctions or promote the use of alternative currencies.” He wonders how Trump’s escalation and unilateralism “jeopardizes the kind of international cooperation the United States relies upon to amplify the effect of our sanctions” elsewhere. We get a clear idea of what ‘multilateralism’ means to liberal critics of Trump’s unilateral approach. It does refer to several parties or states working together but it is supposed to function to “amplify” U.S. objectives. Hence, we have another word with both a dictionary and a technical meaning meant to cloak real intentions and interests.
In the end, both Trump’s Executive Order against the ICC and the liberal critics of Trump who embrace US imperialism remind us that we have a long struggle ahead against imperialism and its apologists if we are to reach the ICC’s goal of end- ing impunity for crime of genocide, crimes against humanity, war crimes, and crime of aggression.
Faramarz Farbod, a native of Iran, teaches politics at Moravian College. He is the editor of Left Turn and the founder of Beyond Capitalism Working Group. He can be reached at firstname.lastname@example.org.