Russian "War Crimes" in Ukraine and the U.S. “Hague Invasion Act”

The ongoing Russian military invasion and occupation of Ukraine has led to calls for the International Criminal Court (ICC) to launch an investigation into the possibility of the commission of war crimes by the Russian armed forces. A chorus of voices have called for the prosecution of Russian President Vladimir Putin. Yet, whatever the merits of these calls, the reference to war crimes resulting from the invasion of a sovereign nation state by another brings into sharp focus the previous conduct of the United States and its allies in relation to military operations and invasions of countries such as Iraq, Libya and Syria. For while the sentiment that political and military leaders should be held accountable for the violations of international law is a morally sound one, the selectivity in regard to which leaders and militaries should bear responsibility is a glaring one, not only because of the inherent difficulty of indicting leaders from powerful states, but also because almost twenty years ago, the United States passed a law which authorises the president to use military force to liberate any American held by the ICC which is located in The Hague, a city in the Netherlands which is a member of NATO.

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.