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End the Double Standard: U.S. Accuses Russia of War Crimes While Continuing to Oppose the ICC

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The United Nations General Assembly voted to suspend Russia from the U.N. Human Rights Council on Thursday, a resolution that accused Russia of committing human rights abuses in Ukraine. We speak with human rights lawyer Wolfgang Kaleck about the apparent double standards and weaknesses in the current international criminal justice system in light of the U.S. committing similar crimes in Iraq and Afghanistan. Nations like the U.S. have refused to submit themselves to any kind of international jurisdiction because “they want to lead their wars,” says Kaleck. “The International Criminal Court will only get off the ground in the near future if Western states agree to apply universal standards.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The United Nations General Assembly voted 93 to 24 to suspend Russia from the U.N. Human Rights Council Thursday. Fifty-eight nations abstained from the vote. The resolution accused Russia of “gross and systematic violations and abuses of human rights” in Ukraine. The vote came just days after President Biden said Russian President Vladimir Putin should be tried for war crimes.

PRESIDENT JOE BIDEN: He is a war criminal. But we have to gather the information. We have to continue to provide Ukraine with the weapons they need to continue the fight. And we have to gather all the detail so this can be an actual — have a war crime trial. This guy is brutal. And what’s happening in Bucha is outrageous, and everyone’s seen it.

AMY GOODMAN: President Biden’s call for Putin to be tried for war crimes came after the publication of images of dead bodies in the streets of the Ukrainian city of Bucha, which was occupied by Russian forces up until last week. Ukraine and its allies have accused Russia of carrying out atrocities there. Russia has denied this, claiming the deaths were staged or carried out by Ukrainian forces after Russia left the city. Earlier this week, U.N. Secretary-General António Guterres decried the killing of civilians of Bucha and called for an independent investigation.

SECRETARY-GENERAL ANTÓNIO GUTERRES: I will never forget the horrifying images of civilians killed in Bucha. And I immediately called for an independent investigation to guarantee effective accountability.

AMY GOODMAN: While President Biden is calling for President Putin to face a war crimes trial, the United States has long opposed the International Criminal Court, which was created by the Rome Statute. The statue has been ratified by 123 nations, but not the United states, Russia or Ukraine. In 2020, Donald Trump went so far as to sanction senior ICC figures involved in investigating possible U.S. war crimes in Afghanistan. While Biden removed these sanctions, he still refuses to submit to the authority of the International Criminal Court.

We’re joined now by the prominent German human rights attorney Wolfgang Kaleck. He’s the general secretary of the European Center for Constitutional and Human Rights. His books include Double Standards: International Criminal Law and the West. He’s currently a scholar-in-residence at Sorensen Center for International Peace and Justice at CUNY School of Law here in New York.

Welcome to Democracy Now!, Wolfgang. If you can start off by talking about the significance of the expulsion of Russia from the U.N. Human Rights Council and then talk about where this war crimes tribunal would take place, and particularly the U.S. and Russia not being signatories to the ICC?

WOLFGANG KALECK: Yeah. Good morning, Amy.

There are several venues for accountability regarding the Ukraine war. One is obviously the ICC, the International Criminal Court in The Hague. And as you were right, neither Russia nor the U.S. ratified and are signature states. But there are other ways to take cases. And one way — and that’s what happened here — is a so-called state referral. So, Lithuania, who is a signature state, as well as the U.K. and then 25 other states, referred the case of the Ukraine situation to the chief prosecutor of the ICC. And so, this chief prosecutor opened an investigation, but this is restricted to war crimes, so the so-called crime of aggression is not covered by this investigation. And that is due to the very weak legislation when it comes to war of aggression — to crime of aggression, because many states don’t want to submit themselves under any kind of international jurisdiction. They want to lead their wars. So, war crimes can also be investigated under the principle of universal jurisdiction in a number of European and other states. And so, several prosecutors, including the federal prosecutor in Germany, also opened investigations into the Ukraine situation. And last but not least — and that is what you mentioned, and that is what is in discussion — a special tribunal could be established covering war crimes, as well as the crime of aggression.

And that’s where we are in the middle of a discussion about double standards, because, I mean, you just read the news, and I listened to the new recent crimes in Colombia, you know, the growing violence against Indigenous communities, growing violence against social movements, but the chief prosecutor at the ICC a couple of months ago put a halt to a preliminary examination into the Colombian situation. And, I mean, who talks about Ethiopia? So, that’s something, you know? There is nothing to say into a serious, impartial, independent investigation when it comes to the suspicion of war crimes, and that’s the case in Ukraine. So, nothing to say against that, but, please, stop this double standards and establish a system with universal standards.

AMY GOODMAN: I mean, you have both the ICC, the U.S. not being a signatory; you have — though cooperating sometimes, but being deeply concerned about U.S. officials or U.S. soldiers being held to account by the same body. And you have when they raise the outrage of landmines being used, for example, in Ukraine, the POM-3, Russia using it, anti-personnel landmines, particularly meant to inflict harm on human beings. Not only do you have to step on it, but you could be a ways away, and these would blow up. But the U.S., once again, is not a signatory to the treaty that Princess Di once campaigned so fiercely for, the anti-landmine treaty, the ban on landmines.

WOLFGANG KALECK: Yeah, that’s perfectly true. So, when it comes to the development of the last 20 years, we have to assess the situation as a kind of erosion of international law and erosion of international criminal law. And that’s not only due to the usual suspects — so, Russia and China and the others — but that’s also due to the attitude of Western states, and that includes the U.S. And, I mean, the most important incident was the 2003 war against Iraq, which caused 1 million deaths, including the war crimes committed in this war, torture, as well as the U.K., because the U.K. is also responsible for systematic torture in their zone in southern Iraq. And that’s something I really cannot understand.

You mentioned the vote at the Human Rights — regarding the Human Rights Council. We had also the other vote on the U.N. resolution condemning the Russian war. And people are wondering: Why did so many states absented? Why did so many states even voted against it, and including states that were — are considered as Western allies, for example, India or South Africa? I mean, there are a number of reasons, of geopolitical reasons — dependence of Russian gas and oil, that’s the one thing. But the other thing is that Global Southern states are not buying anymore this Western attitude of using international law only when it’s serving their own interest, and objecting it when it’s against their interest. So that is an attitude that erodes the legitimation of international and especially of international criminal law. So, the International Criminal Court will only get off the ground in the near future if Western states agree to apply universal standards. And that means if it hits one of their allies, if it hits themselves, they have to buy into this.

AMY GOODMAN: I want to play for you a comment Noam Chomsky recently made in an interview with Nathan Robinson, editor-in-chief of the publication Current Affairs. Professor Chomsky said the world faces two options in Ukraine.

NOAM CHOMSKY: One option is a negotiated settlement which will offer Putin an escape — an ugly settlement. Is it within reach? We don’t know. You can only find out by trying. We’re refusing to try. But that’s one option. The other option is to make it explicit and clear to Putin and the small circle of hard men around him that “You have no escape. You’re going to go to a war crimes trial, no matter what you do.” Boris Johnson just reiterated this. “Sanctions will go on, no matter what you do.” What does that mean? It means “Go ahead and obliterate Ukraine, and go on to lay the basis for a terminal war.” Those are the two options. We’re picking the second — and praising ourselves for our heroism in doing it: fighting Russia to the last Ukrainian.

AMY GOODMAN: That’s professor Noam Chomsky, speaking from his home in Tucson, Arizona. Your response, Wolfgang Kaleck?

WOLFGANG KALECK: I mean, I am not particularly agreeing to Noam Chomsky, for one reason. I think international criminal justice is currently overestimated. And that’s — I mean, on one hand, it’s a progress that people think of accountability when there is evidence that war crimes have been committed. That’s definitely a progress. And as I said, it has to become the standard. On the other hand, we are far away that Putin and his inner circle are really put on trial. That requires years-long investigations. We had the examples of the Yugoslavian war, of the Rwandese war and many other cases. If you look at the record of the International Criminal Court, we have to say it’s poor. It’s poor because they needed very long time and did not even reach the highest ranks. And that is because international law, especially the so-called international humanitarian law, allows too much.

And so, we have — in this case, we have to, first of all, prove that war crimes have been committed. And as I said, there is a lot of evidence. Second, we have to prove that not only the soldiers or the officers on the ground are responsible for that, but we have to go up the chain of command and Putin. And although there is a lot of evidence that what happens in Ukraine now is within a certain pattern of warfare of Russia, because we saw similar attacks against civilian population in Grozny, in Chechnya and also in Aleppo in Syria, but still you have to prove it. And that costs a while.

And so, we have to — the Biden qualification of Putin as a war criminal, that’s a political statement. May he say it or not, but courts and the prosecutor have to thoroughfully regard the standards of criminal law. And that requires more than people would think. But, in general, I would, of course, agree with Chomsky in this. In this particular moment, the most important thing is to stop the war — not at any costs, but to stop the war — and then, maybe after a while, justice, international criminal justice, might come.

AMY GOODMAN: Wolfgang Kaleck, I want to thank you for being with us, general secretary of the European Center for Constitutional and Human Rights. We usually speak to him in Berlin, Germany, but now he’s in New York City.

Next up, we get an update on the Iran nuclear talks. Is a deal within reach? Stay with us.

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