Sauce for Both Goose and Gander
by Paul A. Olson
A few weeks ago, I published the following letter in the Lincoln Journal Star:
I was pleased when Justice Roberts, at his confirmation, spoke of our being “a nation of laws and not of men.” ... However, outside our borders, men and not laws decide. President Biden and NATO leaders have taken to calling President Putin a war criminal. He becomes a punishable war criminal only when an international court convicts and sentences him, but the U.S. and Russia recognize no international courts. The U.S. did not accept the World Court’s judgment in 1986 when it convicted the U.S. of “unlawful use of force” in the Contra War. We have not joined the International Criminal Court, which tries those who “commit genocide, crimes against humanity, war crimes, and crimes of aggression.” If the U.S. arrested Putin, it could not accuse him of his crimes in international courts because we do not belong to ICC, which tries them. We act as if international court decisions applied only to other nations. We say we respect laws and not men, but until we join the ICC, enforcing international law, we do not, talk about trying Putin has no international authority.
Curtis Bryant, of the NFP Anti-War Committee, and Rich Maciejewski of the NFP board have also written newspaper letters on this issue.
Some online comments on my letter insisted that joining the International Criminal Court (ICC) would violate our sovereignty. But if we do not recognize the ICC’s authority over war crimes, violations of international law, and crimes against humanity, how are we to prosecute Russia for Ukraine? Let me be clear: I believe that Russia has committed crimes against humanity and violated international law in the Ukraine war. I believe that Mr. Putin and his senior advisers and generals should be tried in the International Criminal Court.
There may be momentum in Congress to recognize and to fund the court; even Republicans are creating resolutions about it, but few have called for it to have authority over all countries. However, on February 20, 2020, Representative Ilhan Omar introduced the following resolution in the House of Representatives (quoted in part):
Whereas crimes of genocide, crimes against humanity, and war crimes are uniquely heinous and of global concern;
Whereas the United States has been a global leader in the field of international criminal justice for atrocity crimes since the Nuremberg Trials;
Whereas the fundamental principles of the rule of law and accountability for atrocity crimes are central to the United States values and interests at home and abroad;
Whereas the United States has demonstrated its commitment to these values and interests by tangibly supporting numerous domestic, international, and hybrid courts for atrocity crimes, including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Extraordinary African Chambers, and the Special Tribunal for Lebanon;
Whereas the United States further demonstrates this commitment by being party to the Convention on the Prevention and Punishment of the Crime of Genocide, the United Nations Convention Against Torture, and the Geneva Conventions; . . .
Whereas the United States signed the Rome Statute of the International Criminal Court on December 31, 2000, but has yet to ratify the statute and join the Court as a full member;
Whereas the International Criminal Court is an important institution in the global fight against impunity for war crimes, crimes against humanity, and genocide;
Whereas the International Criminal Court operates on the principle of complementarity and as a court of last resort;
Whereas because of these principles, cases are not admissible before the International Criminal Court where they are being genuinely investigated or prosecuted before domestic courts; . . .
Resolved, That it is the sense of the House of Representatives that—
(1) the United States Senate should ratify the Rome Statute;
(2) any visa restrictions put in place by the Department of State on International Criminal Court personnel should be lifted; and
(3) the United States should use its voice, vote, and influence in bilateral and multilateral relationships and institutions to encourage foreign countries that are not party to the International Criminal Court to join the International Criminal Court.
The important points in Representative Omar’s resolution are that we now espouse the principles of the ICC without joining the court or recognizing its authority, especially over our citizens; that we have not ratified the Rome Statute that created the court or become a member of the ICC; and that, to put matters less politely than Representative Omar does, we use the ICC when convenient and deny its authority when not.
Our oldest, closest allies—France, Australia, Brazil, Denmark, Greece, Netherlands, Sweden, and United Kingdom—all belong to the court. Our more recent allies such as thirty-three African countries, Finland, and twenty-one Asian ones belong to the ICC and recognize its authority. One hundred twenty-three nations belong. Almost no one denies that, as Representative Omar declares in her resolution, the ICC is “an important institution in the global fight against impunity for war crimes, crimes against humanity, and genocide.” However, Russia, China, and United States—the three largest military powers in the world—have refused to join. They do not want others looking over the shoulders of their militaries.
Russia has reason to fear the ICC because of its atrocities in Ukraine, Syria, and Georgia. China has reason for ICC fear—its tormenting of Uighurs and Tibetans. The United States clearly committed atrocities and crimes against humanity in Iraq and Afghanistan. Yet, no U.S. military have been prosecuted. We are so afraid of being held accountable for what we do that we also prevent other countries from being held accountable. The ironic situation in which we are placed is that, when President Biden speaks about prosecuting war crimes in Ukraine, he seems to indicate that we will find somewhere—somewhere, we do not know where—to do the prosecution.
In the same vein, recently, Republican and Democratic leaders of the House Intelligence Committee wrote the following letter to the Director of National Intelligence:
[E]ven as we continue to support Ukraine and work to bring this conflict to a close, all elements of our government should collect and preserve evidence of Russia’s possible war crimes. We[sic] commend the Administration’s public commitments to support investigations by the ICC and other institutions into Russia’s conduct. … Taken as a whole, the ICC possess[es] unparalleled resources and insights into the ground truth in Ukraine, which would be critically important in any potential war crimes proceeding.
This letter comes from members of the same committee that has traditionally rejected joining the ICC.
Our hypocritical position is the product of both political parties. The Rome Statute creating the ICC was signed on December 31, 2000 by President Clinton’s representative for the United States to the UN Rome Statute meeting. However, as soon as the statute was signed, Clinton said that the treaty had major flaws and that the Senate should address these flaws before it ratified anything.
Later, John Bolton, speaking for the Republicans as the Undersecretary of State for Arms Control, said that the treaty would undermine our constitutionalism and urged President George W. Bush to withdraw the United States from the treaty. Bush did so. During the Bush Two and Trump eras, it became a crime for an American citizen to cooperate with the ICC. As one commentator wrote during the Trump days:
[D]espite the growing evidence suggesting that the best course of action would be a renewed effort to promote U.S. foreign policy efforts through a more formalized reengagement with the ICC, it appears that the current [i.e. Trump] Administration is pursuing a . . . confrontational approach to the ICC in light of the ICC Prosecutor’s decision to continue her pursuit of an investigation into alleged atrocities committed in Afghanistan (which might potentially involve ICC criminal action against American service-members). In fact, with the issuance of his 11 June 2020 “Executive Order on Blocking Property of Certain Persons Associated with the [ICC],” President Trump has now declared a “national emergency” related to threat of any such investigation and imposed sanctions against individuals associated with the ICC.
Biden has mostly withdrawn Trump-era rules punishing people for cooperating with the ICC. However, because of specious nationalist claims that the court violates our sovereignty, few people in the Congress have pushed for United States court participation and funding. As the Omar resolutions says, the ICC cannot prosecute crimes unless they are egregious violations of international law and have been ignored by the national courts, as is the case now in Russia and in the U.S. with Iraq and Afghanistan. The claim that we always defend our sovereignty is specious. All our international military arrangements with other countries commit the United States to defending those countries if they are attacked, thereby surrendering the constitutional sovereignty that Congress has over declarations of war. The NATO alliance, the ANZUS alliance in the South Pacific, and our other regional military alliances all surrender, to an international treaty exactly like the Rome Statute, the Congress’s sovereign power to declare war. We should surrender sovereign power to create international peace rather to create a ring of “defensive” treaties that require war.
The International Criminal Court has one flaw the U.S. created. When we negotiated the Rome Statute, we included the idea that no one who did not belong to the court would have its citizens prosecuted for crimes of aggression, genocide, crimes against humanity, or war crimes. Since, in all likelihood, neither we nor Russia seriously contemplated belonging to the court, we both knew that provision would keep their citizens from prison. However, that clause in the Rome Statute could be dropped as easily as a new court created by the world community [the new court solution is proposed by Oona Hathaway, in her brilliant recent article “A Crime in Search of a Court” (May 19, 2022, Foreign Affairs)]. Changing the Rome Statute would mean conceding that our warriors like those of other countries fall under international law. We would override laws passed at the behest of our military and their advocates in Congress prohibiting Americans from aiding or cooperating with the ICC. We would have to admit that what is sauce for the goose must flavor the gander’s meat. Law is not law that does not apply to all; justice is justice only when blind to differences between great and small.
A few weeks ago, I published the following letter in the Lincoln Journal Star:
I was pleased when Justice Roberts, at his confirmation, spoke of our being “a nation of laws and not of men.” ... However, outside our borders, men and not laws decide. President Biden and NATO leaders have taken to calling President Putin a war criminal. He becomes a punishable war criminal only when an international court convicts and sentences him, but the U.S. and Russia recognize no international courts. The U.S. did not accept the World Court’s judgment in 1986 when it convicted the U.S. of “unlawful use of force” in the Contra War. We have not joined the International Criminal Court, which tries those who “commit genocide, crimes against humanity, war crimes, and crimes of aggression.” If the U.S. arrested Putin, it could not accuse him of his crimes in international courts because we do not belong to ICC, which tries them. We act as if international court decisions applied only to other nations. We say we respect laws and not men, but until we join the ICC, enforcing international law, we do not, talk about trying Putin has no international authority.
Curtis Bryant, of the NFP Anti-War Committee, and Rich Maciejewski of the NFP board have also written newspaper letters on this issue.
Some online comments on my letter insisted that joining the International Criminal Court (ICC) would violate our sovereignty. But if we do not recognize the ICC’s authority over war crimes, violations of international law, and crimes against humanity, how are we to prosecute Russia for Ukraine? Let me be clear: I believe that Russia has committed crimes against humanity and violated international law in the Ukraine war. I believe that Mr. Putin and his senior advisers and generals should be tried in the International Criminal Court.
There may be momentum in Congress to recognize and to fund the court; even Republicans are creating resolutions about it, but few have called for it to have authority over all countries. However, on February 20, 2020, Representative Ilhan Omar introduced the following resolution in the House of Representatives (quoted in part):
Whereas crimes of genocide, crimes against humanity, and war crimes are uniquely heinous and of global concern;
Whereas the United States has been a global leader in the field of international criminal justice for atrocity crimes since the Nuremberg Trials;
Whereas the fundamental principles of the rule of law and accountability for atrocity crimes are central to the United States values and interests at home and abroad;
Whereas the United States has demonstrated its commitment to these values and interests by tangibly supporting numerous domestic, international, and hybrid courts for atrocity crimes, including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Extraordinary African Chambers, and the Special Tribunal for Lebanon;
Whereas the United States further demonstrates this commitment by being party to the Convention on the Prevention and Punishment of the Crime of Genocide, the United Nations Convention Against Torture, and the Geneva Conventions; . . .
Whereas the United States signed the Rome Statute of the International Criminal Court on December 31, 2000, but has yet to ratify the statute and join the Court as a full member;
Whereas the International Criminal Court is an important institution in the global fight against impunity for war crimes, crimes against humanity, and genocide;
Whereas the International Criminal Court operates on the principle of complementarity and as a court of last resort;
Whereas because of these principles, cases are not admissible before the International Criminal Court where they are being genuinely investigated or prosecuted before domestic courts; . . .
Resolved, That it is the sense of the House of Representatives that—
(1) the United States Senate should ratify the Rome Statute;
(2) any visa restrictions put in place by the Department of State on International Criminal Court personnel should be lifted; and
(3) the United States should use its voice, vote, and influence in bilateral and multilateral relationships and institutions to encourage foreign countries that are not party to the International Criminal Court to join the International Criminal Court.
The important points in Representative Omar’s resolution are that we now espouse the principles of the ICC without joining the court or recognizing its authority, especially over our citizens; that we have not ratified the Rome Statute that created the court or become a member of the ICC; and that, to put matters less politely than Representative Omar does, we use the ICC when convenient and deny its authority when not.
Our oldest, closest allies—France, Australia, Brazil, Denmark, Greece, Netherlands, Sweden, and United Kingdom—all belong to the court. Our more recent allies such as thirty-three African countries, Finland, and twenty-one Asian ones belong to the ICC and recognize its authority. One hundred twenty-three nations belong. Almost no one denies that, as Representative Omar declares in her resolution, the ICC is “an important institution in the global fight against impunity for war crimes, crimes against humanity, and genocide.” However, Russia, China, and United States—the three largest military powers in the world—have refused to join. They do not want others looking over the shoulders of their militaries.
Russia has reason to fear the ICC because of its atrocities in Ukraine, Syria, and Georgia. China has reason for ICC fear—its tormenting of Uighurs and Tibetans. The United States clearly committed atrocities and crimes against humanity in Iraq and Afghanistan. Yet, no U.S. military have been prosecuted. We are so afraid of being held accountable for what we do that we also prevent other countries from being held accountable. The ironic situation in which we are placed is that, when President Biden speaks about prosecuting war crimes in Ukraine, he seems to indicate that we will find somewhere—somewhere, we do not know where—to do the prosecution.
In the same vein, recently, Republican and Democratic leaders of the House Intelligence Committee wrote the following letter to the Director of National Intelligence:
[E]ven as we continue to support Ukraine and work to bring this conflict to a close, all elements of our government should collect and preserve evidence of Russia’s possible war crimes. We[sic] commend the Administration’s public commitments to support investigations by the ICC and other institutions into Russia’s conduct. … Taken as a whole, the ICC possess[es] unparalleled resources and insights into the ground truth in Ukraine, which would be critically important in any potential war crimes proceeding.
This letter comes from members of the same committee that has traditionally rejected joining the ICC.
Our hypocritical position is the product of both political parties. The Rome Statute creating the ICC was signed on December 31, 2000 by President Clinton’s representative for the United States to the UN Rome Statute meeting. However, as soon as the statute was signed, Clinton said that the treaty had major flaws and that the Senate should address these flaws before it ratified anything.
Later, John Bolton, speaking for the Republicans as the Undersecretary of State for Arms Control, said that the treaty would undermine our constitutionalism and urged President George W. Bush to withdraw the United States from the treaty. Bush did so. During the Bush Two and Trump eras, it became a crime for an American citizen to cooperate with the ICC. As one commentator wrote during the Trump days:
[D]espite the growing evidence suggesting that the best course of action would be a renewed effort to promote U.S. foreign policy efforts through a more formalized reengagement with the ICC, it appears that the current [i.e. Trump] Administration is pursuing a . . . confrontational approach to the ICC in light of the ICC Prosecutor’s decision to continue her pursuit of an investigation into alleged atrocities committed in Afghanistan (which might potentially involve ICC criminal action against American service-members). In fact, with the issuance of his 11 June 2020 “Executive Order on Blocking Property of Certain Persons Associated with the [ICC],” President Trump has now declared a “national emergency” related to threat of any such investigation and imposed sanctions against individuals associated with the ICC.
Biden has mostly withdrawn Trump-era rules punishing people for cooperating with the ICC. However, because of specious nationalist claims that the court violates our sovereignty, few people in the Congress have pushed for United States court participation and funding. As the Omar resolutions says, the ICC cannot prosecute crimes unless they are egregious violations of international law and have been ignored by the national courts, as is the case now in Russia and in the U.S. with Iraq and Afghanistan. The claim that we always defend our sovereignty is specious. All our international military arrangements with other countries commit the United States to defending those countries if they are attacked, thereby surrendering the constitutional sovereignty that Congress has over declarations of war. The NATO alliance, the ANZUS alliance in the South Pacific, and our other regional military alliances all surrender, to an international treaty exactly like the Rome Statute, the Congress’s sovereign power to declare war. We should surrender sovereign power to create international peace rather to create a ring of “defensive” treaties that require war.
The International Criminal Court has one flaw the U.S. created. When we negotiated the Rome Statute, we included the idea that no one who did not belong to the court would have its citizens prosecuted for crimes of aggression, genocide, crimes against humanity, or war crimes. Since, in all likelihood, neither we nor Russia seriously contemplated belonging to the court, we both knew that provision would keep their citizens from prison. However, that clause in the Rome Statute could be dropped as easily as a new court created by the world community [the new court solution is proposed by Oona Hathaway, in her brilliant recent article “A Crime in Search of a Court” (May 19, 2022, Foreign Affairs)]. Changing the Rome Statute would mean conceding that our warriors like those of other countries fall under international law. We would override laws passed at the behest of our military and their advocates in Congress prohibiting Americans from aiding or cooperating with the ICC. We would have to admit that what is sauce for the goose must flavor the gander’s meat. Law is not law that does not apply to all; justice is justice only when blind to differences between great and small.
