The U.S. has been accused of war crimes, so here's what will happen — nothing: Neil Macdonald

Let’s be real here: the five veto-holding permanent members of the United Nations Security Council are the ones that control any military enforcement of a UN resolution, writes Neil Macdonald

It's a fantasy to think American officials would ever find themselves at the ICC dock

ICC Chief Prosecutor Fatou Bensouda said there is a reasonable case that the U.S. committed war crimes in Afghanistan. (Peter Dejong/Reuters)

Shockingly, the chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced this week there is a reasonable case that U.S. agents committed war crimes in Afghanistan.

Specifically, Bensouda cited "torture, cruel treatment, outrages upon personal dignity and rape."

It's fantasy, of course. Not the torture and rape and cruelty (and probably a lot more), but the very notion that American officials who committed or ordered such things might ever find themselves at the ICC dock, answering for their actions.

The U.S., which has enthusiastically supported war crimes prosecutions of foreign leaders it disapproves of, would simply never allow it.

In fact, the American Service-Members' Protection Act of 2002 empowers the 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."

It doesn't take much imagination to figure out what that means. The law has been nicknamed the "Hague Invasion Act."

'Inappropriate' findings

The State Department immediately swatted away Bensouda's finding as "inappropriate." The ICC has no business examining the actions of American officials, said spokeswoman Elizabeth Trudeau.

The U.S. voted against setting up the ICC, which has 124 member nations, so it doesn't think the court has any jurisdiction.

Further, said Trudeau, the U.S. has its own highly effective system for prosecuting violations of the laws of war, although she refused to name any recent examples.

But the U.S. is hardly the only nation to regard any ICC examination of its actions as inappropriate.  

Let's be real here: the five veto-holding permanent members of the United Nations Security Council are the ones that control any military enforcement of a UN resolution, or any reference of a war crime to the ICC.

Does anyone really think any of them would ever allow prosecutors in The Hague to proceed against their own officials?

As Prof. Aurel Braun, an expert in international law at the University of Toronto puts it: "If you have a legal system where five players effectively have immunity, you don't have much of a legal system."

Anyway, the ICC prosecutor's declaration about American atrocities in Afghanistan was posturing designed to convince African countries they aren't the ICC's only targets.

It's hard to conclude otherwise, though.

The ICC has so far convicted just four people of crimes against humanity and other atrocities.

Their names are: Jean-Pierre Bemba Gombo, Germain Katanga (nom du guerre Simba), Thomas Lubanga Dyilo and Ahmad al-Faqi al-Mahdi. Guess which continent they all operated on?

Dominic Ongwen, a former senior rebel commander of the Lord's Resistance Army, sits in the courtroom of the International Criminal Court during the confirmation of charges in The Hague on Jan. 21, 2016. (Michael Kooren/Reuters)

The ICC also has several other prosecutions underway. The involve the following nations: Uganda, Democratic Republic of Congo, Central African Republic, Sudan, Kenya, Libya, the Ivory Coast and Mali.

Oh, and also Georgia. So, there's that.

University of Ottawa Prof. Errol Mendes, another expert on such matters, points out that some of the African cases were undertaken at the request of African leaders, who are now hypocritically howling discrimination. (Three African nations just pulled out of the ICC in protest).

But, of course, the Africans are also easy fall guys. Major powers, or even minor powers, are something else completely.

"In war, horrible things are done," says Prof. Braun.

"Shooting prisoners, attacks on civilians, use of torture. The sad thing is that most countries employ all those tactics."

Just talk

Which brings us to the very notion of a war crime, or, indeed, "international law."

An Israeli military expert once chided me for using such terms seriously.

The only real law, he said, is enforceable law. Everything else is just talk. Countries ultimately do what is in their self-interest, and the UN is of little concern.

As Joseph Stalin once said, how many divisions does the Pope have at his disposal?

The Nuremburg trials are often held up as the model of international justice, but even they were utterly one-sided.

Plenty of Nazis were hanged, but Western officials who deliberately bombed civilian populations in Germany were decorated. And what was the deliberate obliteration of nearly every civilian in Hiroshima and Nagasaki, if not a war crime?

There are only war criminals on the losing side.- Wilhelm   Mohnke

I actually once tracked down a former Nazi general, Wilhelm Mohnke, who in 1985 was still officially accused of having gunned down Canadian prisoners of war.

"There are only war criminals on the losing side," he said, advising me to ask my father, who fought in Europe, what Canadians did with their prisoners.

I did. The answer was they were shot, more often than not. There wasn't time for niceties.

But probably the greatest modern self-mockery of international law is the UN's hapless effort to prosecute the murderers of Lebanese prime minister Rafik Hariri.

There's no reasonable doubt that Hezbollah, the fundamentalist Shia party that runs Lebanon, detonated the blast that killed Hariri and dozens of others 11 years ago in downtown Beirut.

The Special Tribunal for Lebanon (STL), headquartered in the Hague, has detention facilities, guards, investigators, researchers, prosecutors, judges, defence lawyers and administrators. It constantly sends out communiqués on its progress.

It just doesn't have any defendants. Hezbollah has laughed at its efforts, and almost certainly penetrated its investigation early on.

So the STL is carrying out four trials in absentia.

Burning through millions

The tribunal has also cited a Lebanese newspaper in contempt and fined it thousands of Euros for publishing information about witnesses. The paper ignored the fine.

But what the STL has managed to do is burn through well over $600 million so far, and that doesn't count the millions spent by the UN's clumsy four-year investigation.

Canada has contributed about $6.5 million. The United States a great deal more.

Why? Well, because Hezbollah are war criminals. And international law demands that the perpetrators of war crimes be held accountable before the world.

Or not, of course.

This column is part of CBC's new Opinion section. For more information about this section, please read this editor's blog and our FAQ.


Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.


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