“If the Nuremberg laws were applied, then every
postwar American president would have been hanged.” -Noam Chomsky (1999)
December 1, 2016
The US State Department was practically insulted that the International Criminal Court (ICC) dared to suggest Americans committed war crimes in Afghanistan through the systematic employment of enhanced interrogation techniques – otherwise known as torture. Not only are the crimes themselves appalling, but US officials legitimately believe international law does not and should not apply to the United States. In fact, Americans seem genuinely surprised when other countries or international institutions refuse to put blind trust in the exceptional nation’s ability to police itself.
The ICC in a preliminary report released on November 14 accused the US military of torturing or mistreating at least 61 detainees in Afghanistan from 2003 to 2014. The report specifically named the CIA as being responsible for torturing and raping at least 27 other detainees in Afghanistan and in “black sites” across Europe.
Journalists Ali Topchi and Ali M Latifi in a November 30 article for TRT World provide a detailed explanation of the difficulties inherent in trying to go after US personnel for war crimes in Afghanistan. For starters, as is well known, the United States is not party to the Rome Statute so it considers itself immune from ICC prosecutions.
Secondly, the United States and Afghanistan signed a Bilateral Security Agreement (BSA) in 2014 which stipulates that Kabul will never “prosecute US forces or hand them over to a third party for any crimes committed in Afghanistan.”
Then there is the political dimension. Since 2002 the United States has appropriated some $113 billion to rebuild Afghanistan – and Kabul sorely needs even more development funding. Not to mention that Afghan security forces will continue to rely heavily on US support to contain a resurgent Taliban. Hence, the Afghan government has close to zero incentive to even raise the issue.
These realities along with the benefits of being one of the most powerful countries on the planet give the United States all the confidence in the world to embrace and flout such double standards. Reactions from the State Department to the ICC allegations are most instructive.
“We do not believe that an ICC examination or investigation with respect to the actions of US personnel in relation to the situation in Afghanistan is warranted or appropriate,” State Department spokesperson Elizabeth Trudeau told reporters November 15. “We believe that we have national systems of accountability that are more than sufficient.”
But that is not all, for the United States does abide international laws when they meet US interests. This is not some conspiracy theory. In fact, it is the State Department’s publicly stated position.
“We’ve supported ICC investigations and prosecution of cases that we believe advance our values in accordance with US law,” Trudeau added, somehow with a straight face.
Of course, this principle does not only apply to potential crimes committed in Afghanistan, evidenced by a November 9 Pentagon assessment of civilians killed in US-led coalition airstrikes in Iraq and Syria over the past two years. The Defense Department wrote these off as accidents and when State Department spokesman Mark Toner was pressed on whether any of the airstrikes that killed 64 civilians during this period amounted to a war crime, his answer was telling.
“I would, frankly, be shocked if that were the case,” Toner said.
US government officials regularly condemn countries around the world for committing atrocities, many of which they have claimed might amount to international violations of the laws of war. The difference is that countries like Syria and Russia intentionally kill innocent civilians whereas the US military would never act based on such depraved motivations.
“Sometimes civilians bear the brunt of military action,” CENTCOM spokesman Air Force Col. John J. Thomas said in a press release accompanying the assessment. “But we do all we can to minimize those occurrences, even at the cost of sometimes missing the chance to strike valid targets in real time.”
Other times innocent civilians are expendable, however, but the strikes are not “intentional” when the United States employs its tried-and-true cost/benefit model to limit collateral damage. A failsafe risk mitigation tool many other countries, obviously, lack.
US Congressman Ted Lieu had the courage recently to admit in a letter to Secretary of State John Kerry that the United States was at risk of violating the Law of Armed Conflict (LOAC) and “aiding and abetting” war crimes by supporting Saudi airstrikes on weddings, funerals, hospitals and marketplaces that have killed scores of innocent civilians in Yemen.
I am sure we already know the answer to Congressman Lieu’s query. If the United States is not guilty of war crimes when they directly kill civilians in places like Afghanistan, Syria and Iraq – it is unthinkable that they would be for refueling Saudi jets to carry out the same in Yemen.
The real rationale is actually pretty simple and one the United States articulates publicly quite often in different ways. It is based on an irrefutable maxim Americans use when assessing every possible war crime violation, summed up best by our friend Noam Chomsky: “That’s not a war crime because we did it.”