Dr. Joanna Rozpedowski is a non-resident senior fellow at the Center for International Policy and international law scholar based in Washington, DC.

July 17th marked the 24th birthday of the draft articles of the Rome Statute of the International Criminal Court (ICC). The 128 articles which comprise one of the leading documents in international criminal law and give the ICC jurisdiction over crimes against humanity, genocide, war crimes, and crimes of aggression, came into force on July 1, 2002. After nearly a quarter century of its existence, 31 countries have still not ratified the document.

Despite the vocal defense of the western rules-based order, the United States (along with China, Iraq, Israel, Libya, Qatar, Russia, and Yemen) is not a state party to the Rome Statute.

In 2002, the Bush Administration notified the United Nation’s secretary general that it no longer intended to ratify the treaty signed by President Clinton two years earlier. The American Servicemembers Protection Act (ASPA) formally rescinded the signature made on behalf of the United States and prohibited U.S. cooperation with the International Criminal Court. The Act also barred the U.S. from participating in peacekeeping activities unless immunity from the ICC could be guaranteed and refused to provide military assistance to any state party to the Rome Statute. The U.S. pressured governments worldwide, including Israel, East Timor, Honduras, Afghanistan, El Salvador, and Sri Lanka among others, to enter into bilateral impunity agreements that would exempt U.S. nationals from prospective ICC jurisdiction. The Trump Administration renewed the U.S. opposition to the Court in 2019 by sanctioning and revoking visas of the ICC’s Chief Prosecutor and her team in response to prospective investigations of the U.S. involvement in Afghanistan. The Biden administration lifted the ICC sanctions in 2021 but continues to strongly disagree with the Court’s efforts to assert jurisdiction over U.S. personnel, contending that doing so would risk extending the Rome Statute to non-state parties and endangering its principle of complementarity.

Observers following the U.S.’ often hostile statements and intimidating campaign against the Rome Statute and the International Criminal Court find evidence of a selective moral outrage when grave crimes falling under the prosecutorial mandate of the ICC are committed by state entities presumed to lie outside of the western hemisphere’s value-laden orbit. In 2005 and 2011 respectively, the US offered support to the ICC’s crime investigations in Sudan and Libya. In 2013, the U.S. expanded the war crimes rewards program to assist in arresting foreign individuals wanted by international courts and tribunals. It also remains an outspoken proponent of the international investigation into alleged war crimes committed by Russia in the Ukraine situation.

Up till now, the ICC’s intent to investigate past U.S. activities in Afghanistan has regularly met with America’s fury and indignation. Largely due to U.S. objections, the questions surrounding the controversial execution of the so-called drone wars, extrajudicial killings of citizens suspected of acts of terrorism, the use of torture, CIA black sites, and the conduct of the war on terror have yet to meet with an appropriate and proportional domestic and international legal response.

The inconsistent and contradictory support for international law principles results, as some have rightly contended, from the country’s long-standing culture of suspicion and distrust of foreign courts which stymied the work of international justice and hindered the coherence and uniformity of international law’s application. This, in turn, impeded the creation of a robust legal precedent in particularly egregious violations of international criminal law and international humanitarian law. The erratic recourse to the ICC mandate, particularly when strategically advantageous, risks undermining the hegemonic status of the post-1945 liberal consensus at a time of a profoundly challenging global stress test.

The unbiased and apolitical work of international courts in upholding the law, ensuring enforcement and compliance, and ultimately preventing or deterring future violations is needed more than ever. Victims of violent conflicts provoked by geopolitical opportunism deserve no less. However, genuine accountability and international justice can only come about when the international community prompts investigations into the U.S. and NATO’s record of violence in Afghanistan and Iraq as much as that of Russia in Ukraine. After all, are Ukrainian lives worth more than Afghani or Iraqi lives? Are Russian war crimes any more perfidious than American, Australian, or British? The only way to find out definitively is to subject state and individual conduct and behavior in conflict situations to blind justice and public scrutiny of international law while keeping in mind that not every wartime civilian death, however tragic, is an act of genocide, constitutes a war crime, or a crime against humanity.

The 2014 Amnesty International report documented the “possible war crimes” committed by the U.S. and NATO troops urging the investigation and prosecution of “those suspected of criminal responsibility for such crimes.” In November 2020, the Australian Defence Force’s (ADF) four-year inquiry into misconduct by its forces found that Australian soldiers have killed innocent civilians and misreported engagements in order to “deflect or deceive future inquiries into the circumstances of their deaths.” Similar allegations have been lodged against NATO Special Operations Forces and the British Special Forces’ pattern of illegal killings in Afghanistan.  

It is estimated that some 243,000 people have been killed as a result of an American war in Afghanistan since 2001 with 70,000 of those killed being civilians. The 2017 relaxation of the U.S. military rules of engagement led to a 330% increase in civilian deaths. According to Brown University’s Watson Institute of International and Public Affairs “Costs of War” program, the U.S. war and continued occupation in Afghanistan destroyed lives due to the “war-induced breakdown of the economy, public health, security, and infrastructure.” A staggering 92% of the population faces food insecurity or famine. Among those, some 3 million children are at risk of “acute malnutrition.” Poverty and environmental degradation have been significantly exacerbated by the war and punishing U.S. sanctions only deepened the humanitarian crises.

It is only proper that the international legal community credibly reckons with past U.S. and NATO interventions as a matter of transparency, accountability, and international justice. Impartial recourse to the international courts and tribunals’ investigative and prosecutorial powers offers an opportunity to do just that: ending a culture of pro-Western impunity. Only then can the U.S. and its allies inoculate themselves against the accusations of blunt political bias, double standards, and hypocrisy and regain the moral high ground and respect they had lost by defying their avowed principles and critically failing to deliver peace, security, and social order in the war-torn Middle East.