“American Exceptionalism” Threatens ICC Investigation, Afghan Peace, and Rights Practice in the U.S.

On March 5, days after the U.S. signed an already faltering peace deal with Taliban leadership, the International Criminal Court [ICC] approved investigations of potential war crimes by U.S. Armed Forces and CIA in Afghanistan and other “black sites.” The alleged crimes include torture, “rape and other forms of sexual violence,” and other “outrages upon personal dignity,” carried out on battlefields and through the enhanced interrogation program detailed in the 2014 Senate Intelligence Committee report.

This is an historic moment for Afghans, who have yet to see human rights abuses committed during more than 40 years of war systematically investigated and prosecuted by any court inside or outside of the country. Afghanistan became a member country of the ICC in 2003 and it’s been 13 years since ICC Chief Prosecutor Fatou Bensouda began her preliminary examination of the ‘Afghanistan situation.’ Furthermore, the Bonn Agreement, signed in December 2001, laid the foundation for U.S. and NATO-backed state-building efforts in Afghanistan. However, the rebuilding efforts sacrificed justice for what the parties called ‘peace.’ This fueled further atrocities by allowing serious human rights abusers to be part of the new government, run for parliament, and hold unofficial positions of power. The new “Peace Deal” between the U.S. and the Taliban continues the same process. Afghan civilians are watching to see if the so-called “beacon of democracy” will now walk away from Afghanistan with full impunity and offer that to the Taliban as well. Additionally, no U.S. support for the ICC investigation will put the Afghan government in a difficult situation; to cooperate with the ICC or risk losing financial and military support from the U.S.

Despite its effects on the peace deal, Secretary of State Mike Pompeo responded to the recent ICC’s approval with contempt, calling the decision “breathtaking,” threatening to “take all necessary measures” to prevent the prosecution of Americans by the “renegade, so called court.” The decision by the ICC to approve the investigation overturned a lower court denial of Bensouda’s request in April of 2019, following intense pressure from Pompeo’s State Department that included revoking the visas of ICC staff and the chief prosecutor herself.

The approved ICC investigation will include allegations against U.S., Afghan, and Taliban armed fighters. These groups were responsible for most of the 10,400 civilians who were injured or killed as a result of armed conflict in Afghanistan in 2019, according to data from the United Nations Assistance Mission in Afghanistan. If the U.S. government and the Taliban are going to be legitimate partners for peace, then both parties need to agree to be investigated by the ICC.

Pompeo’s stance reflects over 20 years of U.S. policy toward the ICC, but this history was more complicated at the outset. In fact, the U.S. relationship with the ICC since its inception reflects “American exceptionalism”—the notion that the U.S. represents the height of democratic ideals, and thus ultimately should not and cannot fall under the jurisdiction of some higher authority. To human rights scholars the term “American exceptionalism” is also used to describe the political stance and historical tendency of the U.S. relative to international law.

The U.S. actively led efforts to create and legitimate the U.N. Charter, Universal Declaration of Human Rights, and other Human Rights Instruments such as the Convention to End All Forms of Discrimination Against Women (CEDAW). Yet, the U.S. has only ratified three binding Human Rights Instruments (ICCPR, CAT, ICERD), and only with additional “reservations” (read: fine print) that label the treaties as not “self executing.” This is legal speak for, “the law counts for us when we say it counts.” It’s an act of power, and this assertion of exceptionalism is clearly reflected in the origins of the ICC and other deeply disturbing U.S. practices, including state executions (the death penalty).

Under the Clinton Administration, the U.S. signed on to the 1998 Rome Statute of the ICC and made significant contributions to the creation of the Court. In Clinton’s authorization statement, he asserted a “strong support for international accountability and for bringing to justice perpetrators” and “long history of commitment to the principle of accountability.” Indeed, before the creation of the ICC the U.S. supported international tribunals for the former Yugoslavia and Rwanda. Later in 2001, the U.S. government made financial aid to Serbia contingent on the Serbian government arresting and transferring former President Slobodan Milosevic to The Hague. However, by the end of his signatory statement to the ICC President, Clinton demonstrated concern for the Court’s potential to “supersede or interfere with functioning national judicial systems” and the protection of U.S. officials from “unfounded charges” or “politicized prosecutions.”

The George W. Bush administration would heed Clinton’s call not to ratify the Treaty and join the Court until all such “concerns” were met. The Bush administration doubled down on this stance by signing the 2002 American Service-Members’ Protection Act (ASPA), authorizing the President to “use all means necessary” to prevent the detention or prosecution of Americans under the ICC. Though the Obama administration engaged the court in an observational role, no attempt was made to join its jurisdiction. Under President Trump and Secretary of State Pompeo, the U.S. moved toward efforts to disengage from and de-legitimate bodies of international law, noting their withdrawal from UNSECO (2017) and the UN Human Rights Council (2018). Pompeo’s recent bluster toward the ICC is an extension of this stance and of the broader pattern of American exceptionalism for decades that now threatens peaceful conclusions to the Afghan war, and other seemingly unrelated human rights struggles like those to stop state executions.

American exceptionalism extends to all forms of U.S. policy—criminal justice in particular. For instance, the U.S. sentenced juveniles to death—a flagrant human rights violation—until 2005, having only banned the execution of the “mentally retarded” [sic.] three years earlier. Today, the U.S. continues its practice of state executions in such a way that violates all three of the ratified human rights instruments—violations to due process and the execution of innocent people (ICCPR), death row conditions defined as torture (CAT), and incredible racial disparity of death penalty convictions, where African Americans are vastly over-represented (ICERD). Nowhere is the confluence of these violations more obvious than in the recent murder of Nate Woods by the state of Alabama—an African American man executed for the alleged murder of three police officers, despite overwhelming evidence and a massive social movement that forced a temporary stay.

The refusal of the U.S. to join other nations in the vision and legal frameworks literally helped to create is problematic beyond hypocrisy—it directly threatens many of our own foreign (peace in Afghanistan) and domestic (ending racist state executions and the torture of death row) struggles and campaigns. Part of our jobs as American scholars, journalists, and activists must be to hold our own government accountable for their failure to join international legal bodies and courts working toward universal human rights practice.

About the Author:

William Armaline, Ph.D., is the Director of the Human Rights Institute at San Jose State University (SJSU). William is also an associate professor of sociology at the university. Halima Kazem-Stojanovic is the HR News Network Coordinator at the Human Rights Insitute at SJSU and is a lecturer of journalism and justice studies at the university.