[Russia is not a signatory to the International Criminal Court,
which means that its nationals can’t be tried at the ICC for war
crimes in Ukraine. The United States is the other Great Exception to
the rules of war.]
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A TALE OF TWO EXCEPTIONALISMS: RUSSIA AND THE USA  
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Rebecca Gordon
January 8, 2023
tomdispatch
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_ Russia is not a signatory to the International Criminal Court,
which means that its nationals can’t be tried at the ICC for war
crimes in Ukraine. The United States is the other Great Exception to
the rules of war. _

Anti-torture vigil, week 28, Palina Prasasouk (CC BY-NC-SA 2.0)

 

Let me start with a confession: I no longer read all the way through
newspaper stories about the war in Ukraine. After years of writing
about war
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I’ve reached my limit. These days, I just can’t pore through the
details of the ongoing nightmare there. It’s shameful, but I don’t
want to know the names of the dead or examine images caught by brave
photographers of half-exploded buildings, exposing details — a shoe,
a chair, a doll, some half-destroyed possessions — of lives lost,
while I remain safe and warm in San Francisco. Increasingly, I find
that I just can’t bear it.

And so I scan the headlines and the opening paragraphs, picking up
just enough to grasp the shape of Vladimir Putin’s horrific military
strategy: the bombing of civilian targets like markets
[[link removed]] and apartment
buildings
[[link removed]],
the attacks on
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civilian power grid, and the outright murder
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the residents of cities and towns occupied by Russian troops. And
these aren’t aberrations in an otherwise lawfully conducted war. No,
they represent an intentional strategy of terror, designed to
demoralize civilians rather than to defeat an enemy military. This
means, of course, that they’re also war crimes: violations of the
laws and customs of war as summarized in 2005 by the International
Committee of the Red Cross (ICRC).

The first rule of war
[[link removed]], as laid
out by the ICRC, requires combatant countries to distinguish between
(permitted) military and (prohibited) civilian targets. The
second states
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“acts or threats of violence the primary purpose of which is to
spread terror among the civilian population” — an
all-too-on-target summary of Russia’s war-making these last 10
months — “are prohibited.” Violating that prohibition is a
crime.

THE GREAT EXCEPTIONS

How should war criminals be held accountable for their actions? At the
end of World War II, the victorious Allies answered this question with
trials of major German, and Japanese officials. The most famous of
these were held in the German city of Nuremberg, where the first 22
defendants included former high government officials, military
commanders, and propagandists of the Nazi regime, as well as the
banker who built its war machine. All but three were convicted and 12
were hanged..

The architects of those Nuremberg trials — representatives of the
United States, the Soviet Union, the United Kingdom, and France —
intended them as a model of accountability for future wars. The best
of those men (and most of them were men) recognized their debt to the
future and knew they were establishing a precedent that might someday
be held against their own nations. The chief prosecutor for the United
States, Robert H. Jackson, put it
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way: “We must not forget that the record on which we judge the
defendants today is the record on which we will be judged tomorrow.”

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Buy the Book
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Indeed, the Nuremberg jurists fully expected that the new United
Nations would establish a permanent court where war criminals who
couldn’t be tried in their home countries might be brought to
justice. In the end, it took more than half a century to establish the
International Criminal Court (ICC). Only in 1998 did 60 nations adopt
the ICC’s founding document, the Rome Statute. Today, 123 countries
have signed.

Russia is a major exception, which means that its nationals can’t be
tried at the ICC for war crimes in Ukraine. And that includes the
crime the Nuremberg tribunal identified as the source of all the rest
of the war crimes the Nazis committed: launching an aggressive,
unprovoked war.

Guess what other superpower has never signed the ICC? Here are a few
hints:

* Its 2021 military budget dwarfed
[[link removed]] that
of the next nine countries combined and was 1.5 times the size of what
the world’s other 144 countries with such budgets spent on defense
that year.
* Its president has just signed
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$1.7 trillion spending bill for 2023, more than half of which is
devoted to “defense” (and that, in turn, is only part of that
country’s full national security budget
[[link removed]]).
* It operates
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750 publicly acknowledged military bases in at least 80 countries.
* In 2003, it began [[link removed]] an
aggressive, unprovoked (and disastrous) war by invading a country
6,900 miles away.

WAR CRIMES? NO, THANK YOU

Yes, the United States is that other Great Exception to the rules of
war. While, in 2000, during the waning days of his presidency, Bill
Clinton did sign
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Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush
administration was ramping up its “global war on terror,”
including its disastrous occupation of Afghanistan and an illegal CIA
global torture program, the United States simply withdrew its
signature entirely. Secretary of Defense Donald Rumsfeld
then explained
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this way:

“…[T]he ICC provisions claim the authority to detain and try
American citizens — U.S. soldiers, sailors, airmen and Marines, as
well as current and future officials — even though the United States
has not given its consent to be bound by the treaty. When the ICC
treaty enters into force this summer, U.S. citizens will be exposed to
the risk of prosecution by a court that is unaccountable to the
American people, and that has no obligation to respect the
Constitutional rights of our citizens.”

That August, in case the U.S. stance remained unclear to anyone,
Congress passed, and President George W. Bush signed, the American
Servicemembers Protection Act of 2002. As Human Rights Watch reported
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the time, “The new law authorizes the use of military force to
liberate any American or citizen of a U.S.-allied country being held
by the [International Criminal] Court, which is located in The
Hague.” Hence, its nickname: the “Hague Invasion Act.” A
lesser-known provision also permitted the United States to withdraw
military support from any nation that participates in the ICC.

The assumption built into Rumsfeld’s explanation was that there was
something special — even exceptional — about U.S. citizens. Unlike
the rest of the world, we have “Constitutional rights,” which
apparently include the right to commit war crimes with impunity. Even
if a citizen is convicted of such a crime in a U.S. court, he or she
has a good chance
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receiving a presidential pardon. And were such a person to turn out to
be one of the “current and future officials” Rumsfeld mentioned,
his or her chance of being hauled into court would be about the same
as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens,
Afghanistan is. In 2018, the court’s chief prosecutor, Fatou
Bensouda, formally requested that a case be opened for war crimes
committed in that country. _The_ _New York Times_ reported
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Bensouda’s “inquiry would mostly focus on large-scale crimes
against civilians attributed to the Taliban and Afghan government
forces.” However, it would also examine “alleged C.I.A. and
American military abuse in detention centers in Afghanistan in 2003
and 2004, and at sites in Poland, Lithuania, and Romania, putting the
court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but
in April 2019, the Trump administration revoked her visa, preventing
her from interviewing any witnesses here. It then followed up
with financial sanctions
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Bensouda and another ICC prosecutor, Phakiso Mochochoko.

Republicans like Bush and Trump are not, however, the only presidents
to resist cooperating with the ICC. Objection to its jurisdiction has
become remarkably bipartisan. It’s true that, in April 2021,
President Joe Biden rescinded
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strictures on Bensouda and Mochochoko, but not without emphasizing
this exceptional nation’s opposition to the ICC as an appropriate
venue for trying Americans. The preamble to his executive order notes
that

“the United States continues to object to the International Criminal
Court’s assertions of jurisdiction over personnel of such non-States
Parties as the United States and its allies absent their consent or
referral by the United Nations Security Council and will vigorously
protect current and former United States personnel from any attempts
to exercise such jurisdiction.”

Neither Donald Rumsfeld nor Donald Trump could have said it more
clearly.

So where do those potential Afghan cases stand today? A new
prosecutor, Karim Khan, took over as 2021 ended. He announced that the
investigation would indeed go forward, but that acts of the U.S. and
allies like the United Kingdom would not be examined. He would instead
focus on actions of the Taliban and the Afghan offshoot of the Islamic
State. When it comes to potential war crimes, the United States
remains the Great Exception.

In other words, although this country isn’t a member of the court,
it wields more influence than many countries that are. All of which
means that, in 2023, the United States is not in the best position
when it comes to accusing Russia of horrifying war crimes in Ukraine.

WHAT THE DICKENS?

I blame my seven decades of life for the way my mind can now meander.
For me, “great exceptions” brings to mind Charles Dickens’s
classic story _Great Expectations_. His novels exposed the cruel
reality of life among the poor in an industrializing Great Britain,
with special attention to the pain felt by children. Even folks whose
only brush with Dickens was reading _Oliver Twist _or watching _The
Muppets Christmas Carol_ [[link removed]] know
what’s meant by the expression “Dickensian poverty.” It’s
poverty with that extra twist of cruelty — the kind the American
version of capitalism has so effectively perpetuated.

When it comes to poverty among children, the United States is indeed
exceptional, even among the 38 largely high-income nations of
the Organization for Economic Cooperation and Development
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child poverty in OECD countries was 12.8%. (In Finland and Denmark, it
was only 4%!) For the United States, with the world’s highest gross
domestic product, however, it was 21%
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Then, something remarkable happened. In year two of the Covid
pandemic, Congress passed
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American Rescue Plan, which (among other measures) expanded the child
tax credit from $2,000 up to as much as $3,600 per child. The payments
came in monthly installments and, unlike the Earned Income Credit, a
family didn’t need to have any income to qualify. The result? An
almost immediate 40% drop in child poverty. Imagine that!

Given such success, you might think that keeping an expanded child tax
credit in place would be an obvious move. Saving little children from
poverty! But if so, you’ve failed to take into account the
Republican Party’s remarkable commitment to maintaining its version
of American exceptionalism. One of the items that the party’s
congressional representatives managed to get expunged from the $1.7
trillion 2023 appropriation bill was that very expanded child tax
credit. It seems that cruelty to children was the Republican party’s
price for funding government operations.

Charles Dickens would have recognized that exceptional — and
gratuitous — piece of meanness.

The same bill, by the way, also thanks to Republican negotiators,
ended universal federal public-school-lunch funding, put in place
during the pandemic’s worst years. And lest you think the Republican
concern with (extending) poverty ended with starving children, the
bill also will allow states to resume kicking people off Medicaid
(federally subsidized health care for low-income people) starting in
April 2023. The Kaiser Family Foundation estimates
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one in five Americans will lose access to medical care as a result.

Great expectations for 2023, indeed.

WE’RE THE EXCEPTION!

There are, in fact, quite a number of other ways in which this country
is also exceptional. Here are just a few of them:

* Children killed by guns
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year. In the U.S. it’s 5.6 per 100,000. That’s seven times as high
as the next highest country, Canada, at 0.8 per 100,000.
* Number of required paid days off
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year. This country is exceptional here as well, with zero mandatory
days off and 10 federal holidays annually. Even Mexico mandates six
paid vacation days and seven holidays, for a total of 13. At the other
end of the scale, Chile, France, Germany, South Korea, Spain, and the
United Kingdom all require a combined total of more than 30 paid days
off per year.
* Life expectancy. According to 2019
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the latest available from the World Health Organization for 183
countries, U.S. average life expectancy at birth for both sexes is
78.5 years. Not too shabby, right? Until you realize that there are 40
countries with higher life expectancy than ours, including Japan at
number one with 84.26 years, not to mention Chile, Greece, Peru, and
Turkey, among many others.
* Economic inequality. The World Bank calculates
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coefficient
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the United States in 2019. The Gini is a 0-to-100-point measure of
inequality, with 0 being perfect equality. The World Bank lists the
U.S. economy as more unequal than those of 142 other countries,
including places as poor as Haiti and Niger. Incomes are certainly
lower in those countries, but unlike the United States, the misery is
spread around far more evenly.
* Women’s rights. The United States signed the United Nations
Convention on the Elimination of All Forms of Discrimination against
Women in 1980, but the Senate has never ratified
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so it doesn’t carry the force of law here. Last year, the right-wing
Supreme Court gave the Senate a helping hand with its decision
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v. Jackson Women’s Health Organization _to overturn_ Roe v. Wade_.
Since then, several state
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rushed to join the handful of nations
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outlaw all abortions. The good news is that voters
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states from Kansas to Kentucky have ratified women’s bodily autonomy
by rejecting anti-abortion ballot propositions.
* Greenhouse gas emissions
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Well, hooray! We’re no longer number one in this category.
China surpassed
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in 2006. Still, give us full credit; we’re a strong second and
remain historically the greatest greenhouse gas emitter
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all time.

MAKE 2023 A (LESS) EXCEPTIONAL YEAR

Wouldn’t it be wonderful if we were just a little less exceptional?
If, for instance, in this new year, we were to transfer some of those
hundreds of billions of dollars Congress and the Biden administration
have just committed to enriching corporate weapons makers, while
propping up an ultimately unsustainable military apparatus, to the
actual needs of Americans? Wouldn’t it be wonderful if just a little
of that money were put into a new child tax credit?

Sadly, it doesn’t look very likely this year, given a Congress in
which, however minimally and madly
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the Republicans control the House of Representatives. Still, whatever
the disappointments, I don’t hate this country of mine. I love it
— or at least I love what it could be. I’ve just spent four months
on the front lines of American politics in Nevada, watching some of
us at our very best
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constant racial invective to get out the vote for a Democratic
senator.

I’m reminded of poet Lloyd Stone’s words that I sang as a teenager
to the tune of Sibelius’s Finlandia hymn
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“My country’s skies are bluer than the ocean
And sunlight beams on cloverleaf and pine
But other lands have sunlight, too, and clover,
And skies are somewhere blue as mine.
Oh, hear my prayer, O gods of all the nations
A song of peace for their lands and for mine”

So, no great expectations in 2023, but we can still hope for a few
exceptions, can’t we?

Copyright 2023 Rebecca Gordon

_Follow TomDispatch on Twitter
[[link removed]] and join us on Facebook
[[link removed]]. Check out the newest Dispatch
Books, John Feffer’s new dystopian novel, Songlands
[[link removed]] (the
final one in his Splinterlands series), Beverly Gologorsky’s
novel Every Body Has a Story
[[link removed]], and
Tom Engelhardt’s A Nation Unmade by War
[[link removed]],
as well as Alfred McCoy’s In the Shadows of the American Century:
The Rise and Decline of U.S. Global Power
[[link removed]], John
Dower’s The Violent American Century: War and Terror Since World
War II
[[link removed]], and
Ann Jones’s They Were Soldiers: How the Wounded Return from
America’s Wars: The Untold Story
[[link removed]]._

_Rebecca Gordon, a TomDispatch regular
[[link removed]], teaches at the
University of San Francisco. She is the author of Mainstreaming
Torture
[[link removed]], American
Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War
Crimes
[[link removed]] and
is now at work on a new book on the history of torture in the United
States._

* war crimes
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* International Criminal Court
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* Russia
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* Ukraine
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* Iraq
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* Afghanistan
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* Torture
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*
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