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Fintan O’Toole: For Putin to pay for war crimes, West has to uphold same standards

By refusing to join International Criminal Court, US continues to undermine system

On September 2nd, 2020 the US imposed sweeping sanctions against Fatou Bensouda and Phakiso Mochochoko. Who are these people? International terrorists? Drug lords? Human rights abusers? War criminals?

The very opposite. Bensouda, a former minister for justice in Ghana, was the chief prosecutor of the International Criminal Court (ICC) that seeks to bring the perpetrators of war crimes to justice. Mochochoko, a lawyer and diplomat from Lesotho, was instrumental in the creation of the ICC in 2002 and heads one of its divisions.

The US sanctioned them, and other unnamed ICC officials, under an executive order that declared their activities a “national emergency”. The emergency was the possibility that they might become “involved in the ICC’s efforts to investigate US personnel”.

The fear, in particular, was that Bensouda might launch investigations into the possibility of direct and indirect US involvement in war crimes in Afghanistan and possible war crimes committed by Israel in Palestine.

A year ago, Joe Biden’s administration quietly lifted the sanctions against Bensouda and Mochochoko, saying they were “inappropriate and ineffective”. But it did not soften its underlying stand, which is that, as Biden’s secretary of state Anthony Blinken put it, “we continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations”.

Calling Putin a war criminal, in other words, is easy; making him so is much more difficult

A year on, and even before the emergence of direct evidence of the murder, rape and torture of Ukrainian civilians by Russian soldiers, Biden was calling Putin a “war criminal”. It is an immensely serious charge and almost certainly an accurate one.

But it is undercut by the continuing refusal of the US to join the 123 states that are members of the ICC. The US is equally fierce in its insistence that the ICC cannot investigate any crimes committed by its citizens in countries (like Afghanistan) that do accept the ICC’s jurisdiction.

At the end of last month, 39 of those member states, Ireland among them, formally asked the ICC “to investigate any acts of war crimes, crimes against humanity and genocide alleged to have occurred on the territory of Ukraine from November 21st, 2013 onwards”. ICC prosecutor Karim Khan has indeed begun to do so.

If there is to be any prospect of bringing Vladimir Putin and his henchmen to justice for murder, rape and torture, it must lie with the ICC – a body whose authority the US refuses to accept.

Calling Putin a war criminal, in other words, is easy; making him so is much more difficult. It requires the US and everyone else to apply to themselves the standards they wish to impose on Russia. It is far from obvious that this is going to happen.

To point this out is not “whataboutery”. Let’s be very clear: no atrocity is diminished or rendered less depraved just because those who purport to be appalled by it may be hypocrites. Nothing ever justifies murder, rape or torture.

That is the whole point of the idea that underlies the ICC: crimes against humanity. All atrocities are equally revolting because the lives and dignity of all human beings are of equal importance – whoever they are and whatever the identity of their attackers.

They cannot be weighed against any notion that those who are committing them are on the right side. The supposed cause or motivation – and whether or not we agree with it – does not mitigate the crime in any way.

In reality, though, “our” atrocities are not the same as “their” atrocities. “We” occasionally suffer an unfortunate lapse by a few junior soldiers from our impeccable standards that does not take way from the honour of our troops and our nation. “They” are barbarians and savages whose violation of civilised rules puts them beyond the pale.

The US, alas, has been a primary practitioner of this double standard. It has managed to maintain its genuine outrage at war crimes by others all through its own moral morass in Vietnam, its support for hideously violent regimes in Latin America and Africa, its official sanction of torture in the “war on terror”, and the overwhelming evidence of atrocities in Iraq and Afghanistan.

To take just one example: US commanders in Afghanistan knew the local warlords they armed and supported often kidnapped boys and kept them as sex slaves. But as Craig Whitlock puts it in his study of declassified American records, The Afghanistan Papers, “although American soldiers were sickened by the abuse, their commanders instructed them to look the other way because they didn’t want to alienate allies in the fight against the Taliban”.

Would anyone doubt that, if these atrocities were being committed by the Taliban, they would have been publicised by the US and Nato as evidence of its criminal depravity?

There is a lot of this double vision closer to home, too. Boris Johnson, who enthusiastically supports the idea that the ICC should prosecute Putin, has been pushing for an amnesty for crimes (including murder) committed by British soldiers in Northern Ireland.

And many Irish people don’t have a big problem with Sinn Féin’s continuing glorification of the IRA’s campaign of violence, most of which (in particular the targeting of civilians by bombs) involved war crimes.

All of this ambivalence helps Putin. In practical terms the US continues to undermine the very system (the ICC) that could prosecute him. It seems to have no idea as to who else might actually try to bring him to justice.

And in the wider court of international opinion, it is all too easy for those (such as China and many African countries) who do not want to criticise Russia, to claim that such condemnations are too selective to be valid. The bodies of Bucha can be shoved behind that great mental screen: “Ah yes, but what about...”

The Ukraine war is being fought on two fronts. It is a brutal physical battle against the invaders. But it is also a struggle of ideas and values in which the very notion of an international order based on universal laws is fighting for its life.

So long as accusations of atrocity can be seen as weapons of war rather than assertions of universal values, impunity will seem like a good bet

That struggle will not succeed if it is waged merely by pointing the finger at Putin’s wickedness. It has to be driven by a genuine and unequivocal recommitment to democracy, human rights and moral decency.

Joe Biden could go a long way towards reanimating that commitment by announcing immediately that the US will join the ICC and support, without exceptions, the prosecution of all those who perpetrate and tolerate crimes against civilians.

Otherwise, Putin will remain as confident as he always has been that he will get away with murder. So long as accusations of atrocity can be seen as weapons of war rather than assertions of universal values, impunity will seem like a good bet.