Harris Faulkner
(Fox News Host):”When you invade a sovereign nation, that is a war crime".
Condoleezza
Rice: Nods her head in solemn agreement.
- Exchange
during Fox News Sunday, February 27, 2022.
The exchange between the host of an American politics programme and Condoleezza
Rice, the U.S. National Security adviser to the administration of President
George W. Bush from 2001 to 2005 was a revealing one. For Rice, who had tweeted
three days previously that “Russian aggression cannot stand”, was part of the
team which oversaw the invasion of a sovereign nation under the false pretext
that it possessed Weapons of Mass Destruction.
For many
scholars, the invasion of Iraq was a war crime since it amounted to waging
aggressive war in contravention of the Nuremberg Principles. It also arguably
contravened UN Charter Article 2(4) which provides that all member states must
refrain from the use of force against the territorial integrity or political
independence of any state.
Thus, it is
that there is a widely-held view that those who were party to the invasion
enterprise including Ms. Rice should have been indicted for war crimes by the
ICC. However, the preeminent architects including President Bush and British
Prime Minister Tony Blair have never
faced such indictment.
Apart from the
crime of invasion, the subsequent occupation of Iraq by US and coalition forces
was replete with allegations of wrongdoings such as massacres of insurgents and
civilians during operations, as well as of rape and torture.
The arguments
related to the commission of war crimes extend to other countries including the
actions taken by NATO states in Libya, an endeavour also undertaken by
allegedly false pretences. The claim that forces of the Libyan government were
about to commit widespread massacres in the city of Benghazi, is strenuously
disputed. Indeed, allegations used to justify the invasion such as “eye witness
accounts” of Libyan warplanes firing on protesters were found to be largely
false. The intervention, which was permitted under the “Responsibility to Protect”
doctrine, developed into an endeavour of regime change using Islamist proxies
that included the al-Qaeda-affiliated Libyan Islamic Fighting Group.
Among the
alleged war crimes committed by NATO forces was the bombing of forces loyal to
the eventually overthrown Head of State, Colonel Muammer Gaddafi in his home
town of Sirte where his forces did not pose a threat to civilians. Another
example is held to be the airstrikes carried out by NATO in and around the
north eastern city of Ajdabiya were directed at stationary units of the Libyan
army which were not advancing.
The objective
of destroying the Libyan military and national infrastructure thus took
precedence over the actual protection of civilians. In fact, NATO forces failed
to protect citizens within Libya throughout its intervention. Among those who
bore the brunt of suffering during the conflict were black-skinned Africans who
were subjected to widespread torture by the NATO-backed rebels. The rebels
ethnically cleansed villages populated by black Libyans and also committed mass
rapes against black African females in refugee camps outside Tripoli.
Civilian
supporters of the Gaddafi government were tortured and murdered by rebel
forces.
The record of
NATO forces intervening in Syria, a covert operation to support what turned out
to be a largely Islamist insurgency against the secular government of President
Bashar Assad, is also tainted by numerous allegations of atrocities against
civilians. The United States still illegally occupies the eastern part of
Syria.
But the United
States is demonstrably above the law.
The so-called
Wolfowitz Doctrine developed in the post-Cold War era which sought to maintain
American global hegemony in the wake of the dissolution of the old Soviet
empire, explicitly provided that the United States would use all means at its
disposal to prevent the rise of another power including the abrogation of
multilateral treaties.
In August 2002,
President Bush signed into law an Act of Congress which came to be known as the
“Hague Invasion Act”.
The American Service Members Protection Act
(ASPA) of 2002 empowers the President to use “all means necessary and
appropriate to bring about the release of any U.S. or allied personnel being
detained or imprisoned by, on behalf of, or at the request of the International
Criminal Court.”
It was enacted
as part of the Supplemental Appropriations Act for Further Recovery From
and Response to Terrorist Attacks on the United States
This means that
the United States would be prepared to invade the Netherlands, a fellow NATO
member state, to secure the release of persons charged with war crimes
regardless of the level of evidence against them.
The United
States voted against the adoption of the Rome Statute of the International
Criminal Court, because it believed that any member of its armed forces
stationed abroad needed to be free from the risk of prosecution because they
were acting in the “vital interests” of the country. The Rome Statute also
created a risk that the President and other senior elected and appointed
officials of the United States Government could be prosecuted by the ICC.
During the
present war in Ukraine, the Russian military have been accused of using cluster
bombs and themobaric (“vacuum”) bombs. The former is prohibited among the
nations that ratified the 2008 Convention on Cluster Munitions which became
binding international law among signatory states in August 2010. The latter is
not explicitly prohibited under any international agreements for use against
military targets, although themobaric munitions have been argued to be
impliedly prohibited by the terms of the UN Convention on Certain Conventional
Weapons (CCW).
The armed
forces of the United States, Russia and Israel have in the past been accused of
using prohibited munitions such as white phosphorus but have not been held
accountable. That will likely be the case even if the Russians have used
prohibited munitions. While the former Ukrainian Prime Minister Arseniy
Yatsenyuk has denounced President Vladimir Putin as “a war criminal” at a
meeting of the Council for Foreign Relations (CFR), the Ukrainian Army has itself
been accused of using phosphorus munitions in battles near Kiev. Phosphorus is
banned under the third protocol of the UN Convention on Prohibitions or
Restrictions on the Use of Incendiary Weapons which was adopted in 1980.
So far, there
is no concrete proof of Russia’s use of such weapons and news reports have used
words such as “suspected use”, while the US Ambassador to the UN has claimed
that Russia was “preparing” their use.
Russian accountability
under the Rome Statute is like that of the United States not practicable. Although
it was a signatory state, it withdrew in 2016 over criticism of its absorption
of Crimea in 2014 after the US-backed coup overthrew the pro-Russian government
led by President Viktor Yanukovytch.
On its
creation, the ICC was lauded by some as potentially the most important human
rights institution created for a long time, but so much lies beyond its scope -
including that of the purported future prosecution of President Vladimir Putin.
© Adeyinka
Makinde (2022).
Adeyinka
Makinde is a writer based in London, England.
