The Unaccountable Nation

Exceptionalism, triumphalism, chauvinism. These characteristics define most empires, including, like it or not, these United States. The sequence matters. A people and national government that fancies itself exceptional — an example for the rest of the world — is apt to assert itself militarily, economically, and culturally around the globe. If that self-righteous state happens to possess prodigious power, as the U.S. has since the Second World War, then any perceived success will lead to a sense of triumphalism, and thus put into motion a feedback loop whereby national “achievement” justifies and validates that conception of exceptionalism.

Then the exceptionalist-triumphalist power inevitably runs off-the-rails, and — especially when it feels threatened or insecure — lashes out in fits of aggressive military, economic, religious, or racial chauvinism. This cycle tends to replay again and again until the empire collapses, usually through some combination of external power displacement and internal exhaustion or collapse.

Such imperial hyper-powers, particularly in their late-stages, often employ foot soldiers across vast swathes of the planet, and eventually either lose control of their actions or aren’t concerned with their resultant atrocities in the first place. On that, the jury is perhaps still out. Regardless, the discomfiting fact is that by nearly any measure, the United States today coheres, to a remarkable degree, with each and every one of these tenets of empire evolution. This includes, despite the hysterical denials of sitting political and Pentagon leaders, the troubling truth that American soldiers and intelligence agents have committed war crimes across the Greater Middle East since 9/11 on a not so trivial number of occasions. These law of war violations also occurred during the Cold War generation — notably in Korea and Vietnam — and the one consistent strain has been the almost complete inability or unwillingness of the U.S. Government to hold perpetrators, and their enabling commanders, accountable.

Enter the International Criminal Court (ICC). First proposed, conceptually, in 1919 (and again in 1937, 1948, and 1971), in response to massive war crimes and human rights violations of the two world wars, the Hague-headquartered court finally opened for business in 2002. With more than 120 signatory member states (though not, any longer, the U.S.) the ICC has the jurisdiction to prosecute international violations including “genocide, crimes against humanity, war crimes, and the crime of aggression.” A compliment, rather than a replacement, to sovereign national justice systems, the ICC is designed to be the “court of last resort,” obliged to exercise jurisdiction only when a nation’s courts prove unwilling or unable to prosecute such crimes.

All of which sounds both admirable and unthreatening (at least to reasonably well-behaved states with accountable, responsive justice systems), but to the contemporary American imperial hyper-power, the very existence of the ICC is viewed as a mortal threat. Matters demonstrably came to a head this past week when an ICC appeals court reversed a lower-level decision and allowed its special prosecutor — whose visa Washington has already revoked — to simply open an official investigation into alleged war crimes committed in Afghanistan by all three major parties to the conflict: the Taliban, U.S., and U.S.-backed Kabul-based Afghan government. This decidedly mild decision, which only allows a multi-directional inquiry, unleashed an immediate firestorm in Washington.

The reflexive reactions and responses of current and former Trump officials was both instructive and totally in line with decades worth of bipartisan U.S. disavowal of the very notion of international norms and standards. Trump’s recent hawkish national security adviser, John Bolton — now an MSNBC-DNC darling for his apparent critique of the president in a new memoir — has spearheaded opposition to the ICC since its inception, has asserted that the ICC is “illegitimate,” and that the U.S. Government “will not sit quietly,” if “the court comes after us.” After the most recent ruling, Secretary of State (and former director of the very CIA that is likely to be implicated in said war crimes investigation) Mike Pompeo declared the ruling a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body,” adding, threateningly, that “we will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court.”

On that latter point, Pompeo is neither wrong, nor espousing a policy — no matter how aggressive or rejectionist — unique to Donald Trump’s administration. Here, a brief bit of all but forgotten history is in order. In 1998, the UN General Assembly voted 120-7 to establish the ICC. The United States, in good company with a gaggle of criminally compromised states — China, Iraq, Israel, Libya, Yemen, and Qatar — voted against the measure. Two years later, however, President Bill Clinton unenthusiastically signed onto this foundational Rome Statute, but with some dubiousness and the requisite American exceptionalist caveat that he “will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”

Then came the 9/11 terrorist attacks. This tragedy turned (for then ascendant neoconservatives) opportunity for expanded U.S. military global assertiveness, ensured that Clinton’s successor — one George W. Bush — wouldn’t even consider ICC treaty submission to the Senate. Rather, in May 2002, Bush sent a note to the UN Secretary General informing him that the most powerful and influential country in the world no longer intended to ratify the Rome Statute or recognize any obligations to the ICC (which officially opened for business only two months later). Never simply a morality tale of Republican villainy, Bush’s disavowal didn’t explain the half of it.

Far more disturbingly, a stunningly euphemistic American Service-members’ Protection Act of 2001 amendment, first introduced just 15 days after the 9/11 attacks, to the Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States, was already under consideration in Congress. With broad bipartisan majorities, that legislation — which authorized the U.S. 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” — passed in the House a couple weeks after Bush sent his note to the UN, and the Senate just two weeks later. President Bush then signed this authorization for, up to and including military, force into law on August 2, 2002. Much of the world was appalled and international human rights organizations took to – quite appropriately – calling it the “Hague Invasion Act.” It remains in force today.

The timeline is instructive and itself tells a vital part of the story. Democrats and Republicans alike had chosen to “preempt” — an internationally prohibited precedent that Bush would later invoke to invade Iraq — the not yet in force ICC with this bill. They did so, I’d assert, because they knew a salient dirty secret: the U.S. was about to unleash martial fury across the Greater Middle East. In the process, inevitably, American troopers and intelligence spooks would push the limits of acceptable wartime behavior, and thus be vulnerable to international prosecution by the soon effective ICC.

This was unacceptable for an exceptionalist, triumphalist nation, about to undertake chauvinist actions the world over. That unilateral, world-order-be-damned national position held, and still holds, sway in the intervening 18 years. So, for all the Trump administration’s coarse obtuseness in response to the opening of the latest ICC Afghan investigation, this is, at root, not (as the mainstream media will inevitably now claim) a Donald phenomenon.Three administrations, and multiple guard-changing Congresses, chose to not to touch the infamous Hague Invasion Act or realign the U.S. with the ICC or the spirit (or even the pretense) of international law.

The cast of elite characters, many still politically influential, who voted for the Hague Invasion Act is nothing short of astounding. The bill passed the House by a margin of 280-138, and counted such “yea” votes as House Intelligence Committee Chair — top Trump opponent and Russiagate investigator — Democrat Adam Schiff. Notably, especially in this ongoing electoral cycle, then Vermont Representative Bernie Sanders opposed the measure.In the Senate, an even larger portion of Democrats joined current Speaker Mitch McConnell (and most of his Republican caucus), to vote for the Act. These included such past and present notables as former Secretaries of State John Kerry and Hillary Clinton, current Minority Leader Chuck Schumer, and, then Foreign Relations Committee Chair, and now Democratic presidential frontrunner, Joe Biden. His vote, naturally, should come as scant surprise since even in early Senate committee hearings four years earlier, ranking minority member Biden was at best tepid, and at worst quite skeptical of the ICC – even finding unlikely points of agreement with the later Hague Invasion Bill’s sponsor, and longtime unilateralist hawk, Republican Senator Jesse Helms.

Still, the swift, frenetic response of senior Trump officials to ICC decision is telling. I suspect that Pompeo and Bolton know the inconvenient truth – that U.S. national security forces have committed crimes in Afghanistan (and elsewhere) and that the U.S. Government hasn’t ever truly held these select perpetrators sufficiently accountable. Contra Pompeo, Bolton, and other Trump officials’ ardent public assertions, the U.S. military and intelligence community are, in fact – due to being demonstrably “unwilling or unable to prosecute such [war] crimes” – the perfect candidates for ICC investigation, and if evidentiary appropriate, prosecution. The U.S. has a historically abysmal record either of restraining or punishing wartime violations.

The rarely recounted record is an extensive as it is appalling:

• After U.S. Air Force pilots and U.S. Army soldiers strafed and gunned down some 400 Korean refugees (most women, children, and old men) hiding under a bridge at No Gun Ri over the course of four days in 1950, there was no criminal investigation when the military determined the killings represented naught but an “unfortunate tragedy inherent to war.”
• When, after a two-year coverup, the journalist Seymour Hersh brought to light the blatant execution of at least 504 civilians in the hamlet of My Lai, South Vietnam, just six soldiers were charged, and only one – Lieutenant William Calley – convicted. Though countless victims were beheaded, scalped, or had their throats slit in an orgy of violence, even Calley’s original life sentence was repeatedly reduced by senior generals until he was ultimately granted clemency by President Richard Nixon. Convicted by jury of military officer peers of personally killing at least 22 civilians, Calley served only five months in detention and some three years under house arrest.
• Later in the Vietnam War, when Lieutenant Colonel Anthony Herbert blew the whistle on endemic torture among some U.S. troops, and a subsequent investigation uncovered 141 confirmed incidents of prisoner abuse, not a single criminal charge was filed and only three soldiers were administratively fined or reduced in rank. The only significant punishment meted out was leveled at Herbert — recipient of four Silver Stars and three Bronze Stars, who was also shot 10 ten times and bayonet thrice — when his reputation and career were ruined in retaliation.
• When allegations of systemic prisoner abuse at Iraq’s Abu Ghraib Prison were reported by Major General Antonio Taguba, and simultaneously uncovered by the very same Seymour Hersh, not a single soldier above the rank of staff sergeant faced charges. Taguba, incidentally, did suffer — his career unceremoniously curtailed in the wake of threats, intimidation, and harassment by the senior army commander in Iraq (General John Abizaid) and the then Secretary of Defense Donald Rumsfeld.
• Finally, and perhaps most relevant to the current ICC investigatory backlash, after an American AC-130 gunship unloaded on a civilian hospital (by definition, a war crime) repeatedly for 30-60 minutes and killed 42 doctors, patients, and staff members, the top theater commander, General John Campbell, and then Secretary of Defense Ashton Carter changed their stories four times in four days without ever fully explicating what exactly caused the massacre. An official military probe – instructively, the generals always investigate themselves in these matters – found no criminal culpability, and, while Campbell’s nominal boss, General Joseph Votel, claimed to have administratively disciplined sixteen soldiers and officers, the names of those personnel – and he details of their punishment – were never released.

Add to that the disconcerting fact that the U.S. crossed a rather macabre tipping point in 2019, whereby, for the first time, the American military and its Afghan allies killed more civilians than the Taliban, and this brings us full circle to an alarming present reality. The very figures who championed and supported the wildly chauvinistic “Hague Invasion” Act seem set to hold sway over, and in Biden’s case serve as candidate for, the Democratic Party.In November, that faction will likely, then face off against a Trump team that vehemently opposes even a basic investigation into alleged American criminal misbehavior in the Afghan theater of its ongoing forever wars.

All of which demonstrates, once and for all, that human rights, and international law or norms were never of genuine interest to the United States. None of this will play well on the “Arab,” or even broader global, “Street,” and will – just like U.S. abuses at Abu Ghraib, Guantanamo – actually increase worldwide “terrorism” and anti-Americanism. None of which matters to, or greatly concerns, a Washington elite lacking even a modicum of self-awareness.

Because empires, like the United States, which peddle in exceptionalism, triumphalism, and chauvinism are, historically, the world’s true rogue states.

Danny Sjursen is a retired U.S. Army officer and a contributing editor at antiwar.com. His work has appeared in the LA Times, The Nation, Huff Post, The Hill, Salon, Truthdig, Tom Dispatch, among other publications. He served combat tours with reconnaissance units in Iraq and Afghanistan and later taught history at his alma mater, West Point. He is the author of a memoir and critical analysis of the Iraq War, Ghostriders of Baghdad: Soldiers, Civilians, and the Myth of the Surge. His forthcoming book, Patriotic Dissent: America in the Age of Endless War is now available for pre-order. Follow him on Twitter at @SkepticalVet. Check out his professional website for contact info, scheduling speeches, and/or access to the full corpus of his writing and media appearances.