Meanwhile, after the Commission on Security and Cooperation in Europe hearing, Cardin told The Intercept: “I’m not too concerned physically where the trials take place. I want to make sure there’s accountability.” Asked if the U.S. needs to modify laws to allow for intelligence sharing with the ICC, Cardin said he asked if there’s anything more to do, and he’s been told they have all the authority they need but “if they need anything further we’ll be glad to give it to them.”
While the U.S. races to hold Russia to account, very few American lawmakers have turned the scrutiny inward. A notable exception is Rep. Ilhan Omar, D-Minn., who led several of her progressive colleagues last month calling for the U.S. to join the ICC and repeal the 2002 law that restricts U.S. assistance to the court’s investigations. But otherwise, the United States has largely neglected to look at itself in the mirror.
In its groundbreaking series, the New York Times revealed earlier this year that the U.S. has killed thousands of civilians in botched airstrikes throughout the Middle East since 2015. In July 2016, the publication found, the U.S. intended to bomb Islamic State “staging areas” in northern Syria but actually massacred more than 120 villagers seeking shelter. In March 2019, U.S. jets struck and killed 70 people in the eastern Syrian town of Baghuz when the operators of separate American drones flying overhead knew them to be mostly women and children. Repeatedly, retroactive assessments by the Pentagon were downplayed and resulted in no disciplinary action, and the U.S. made fewer than 12 condolence payments to survivors.
Following these discoveries, Defense Secretary Lloyd Austin, a retired four-star Army general who commanded U.S. military operations in the Middle East from 2013 to 2016, called for reform. “We strive diligently to minimize the harm that armed conflict visits upon civilian populations, but we can and will improve upon our efforts to protect civilians,” Austin wrote in a January memo to Pentagon leadership. “We will revisit the ways in which we assess incidents that may have resulted in civilian harm, acknowledge the harm to civilians that resulted from such incidents, and incorporate lessons learned into the planning and execution of future combat operations and into our tactics, techniques, and procedures.”
In the January 27 memo, Austin called for an action plan within 90 days of issuance. But it’s not yet finished. During a House Armed Services Committee hearing in early April, Austin said the review was about 30 days in. Defense Department spokesman Lt. Col. César Santiago-Santini told The Intercept that the 90-day process remained ongoing. (Asked by Rep. Sara Jacobs, D-Calif., whether the Pentagon would take another look at cases of civilian harm that were dismissed, Austin also said during the hearing that “at this point, we don’t have an intent to relitigate cases from before.”)
Marking the original three-month deadline, Sen. Elizabeth Warren, D-Mass.; Rep. Ro Khanna, D-Calif.; and Rep. Jason Crow, D-Colo. — who are members of the armed services committees — introduced two new bills in late April that would codify several of Austin’s directives into law. Asked what motivated her to propose these measures now, Warren told The Intercept: “The stories keep mounting up about civilian casualties, and the inability or outright refusal of the Department of Defense to make a careful accounting.” Referring to Austin’s memo, she added, “I want to see some results.”
In an email to The Intercept, Annie Shiel, a senior adviser at the Center for Civilians in Conflict who endorsed the new legislation, explained that having involvement from Congress can help guarantee the success of the Pentagon’s reforms. “And while it’s encouraging that civilian harm is being recognized as a high priority at the Department,” she said, “success will require sustained engagement not only from the [Defense Department], but also from Congress — to support the Secretary’s ongoing efforts, to hold the Department accountable for its commitments, and to fill critical remaining gaps.” (The bills will ensure a new center of excellence to advance civilian protection measures, for instance, will outlast the current administration.)
In the Senate, Warren’s bills have the support of Democratic Whip Dick Durbin of Illinois and Sens. Jeff Merkley, D-Ill., and Bernie Sanders, I-Vt. But otherwise, her efforts to keep pressure on the Pentagon weren’t top of mind for influential legislators. Sens. Jack Reed of Rhode Island and James Inhofe of Oklahoma, the most powerful Democrat and Republican on the Senate Armed Services Committee respectively, told The Intercept last week that they hadn’t reviewed the proposals yet. They’ll play a pivotal role in determining whether the bills make their way into the annual defense policy bill, which would be the likeliest legislative vehicle to pass them into law.
In an opinion column for MSNBC last month, Middle East expert Trita Parsi, executive vice president at the Quincy Institute for Responsible Statecraft, laid out a compelling argument for why many countries in the Global South have not joined the U.S.’s efforts to sanction Russia in response to its war on Ukraine. “Many of these states also see flagrant hypocrisy in framing the Ukraine war in terms of the survival of the rules-based order,” he wrote. “From their vantage point, no other country or bloc has undermined international law, norms or the rules-based order more than the U.S. and the West.”
The hypocrisy and excuses for the U.S.’s unwillingness to submit to a fraction of the scrutiny it’s now demanding of Russia were perhaps most blatant in a Washington Post op-ed last month by former Democratic Sen. Christopher Dodd of Connecticut and George W. Bush administration attorney John Bellinger III.
“The United States can help the court in appropriate cases while still strongly opposing ICC investigations (including of U.S. personnel) that do not meet the court’s strict threshold requirements,” Dodd and Bellinger wrote. “The ICC was created to prosecute only the most serious international crimes that are not addressed by the nations that commit them, not to investigate every allegation of misconduct.”
Of course, the U.S. has already managed to dodge ICC inquiries. When the court’s chief prosecutor reopened an investigation into war crimes in Afghanistan last year, it dropped allegations against the U.S. and its allies, choosing to focus only on the Taliban and the Islamic State. Just a few weeks before, the U.S. ended its 20-year war in Afghanistan with a drone attack that the Defense Department initially called a “righteous strike” against the Islamic State. The Pentagon later acknowledged the attack hit and killed 10 civilians, including seven children.