By Patrick Lawrence / Original to ScheerPost
There are many things to say about the International Criminal Court’s decision to issue an arrest warrant for Vladimir Putin on charges that the Russian president directed the abduction and deportation of thousands of children from eastern Ukraine in the early months of the intervention that began a year ago. Let us settle on three of these things.
Straight off the top, the ICC’s action announced on March 17 is ridiculous in any number of ways. Its legality is questionable at the very least. Its premise appears to bear no relationship with reality; it will have no appreciable effect. It is a political gesture dressed up as law and, as a political gesture dressed up as law, it is sheer propaganda, nothing more.
If an institution such as the ICC behaves ridiculously in these ways, it is not doing its credibility a great deal of good. To ask what use the ICC serves, despite its elevated purpose when it was founded 25 years ago, seems to be a good question.
There is a history behind this kind of conduct. This is the second thing to say about what the ICC has just done. If we study this history even briefly, we are likely to be upset, because this history indicates that the many international institutions to which humanity has looked as a source of impartial order for the past 70–odd years do not work as intended. And they were fated not to work as intended so long as the United States insists, as it has since the 1945 victories, on global dominance. This is a case of either/or: We can have a stable world order on the basis of the U.N. Charter or other such instruments of international law, or we can have the American imperium, but we cannot have both.
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This leads us to the third thing to say about the ICC’s decision to issue a warrant for a head of state’s arrest. And the third thing to say is the one that seems to me to require our attention most urgently if we are to understand the world in which we live.
We must think hard now about what the political philosophers call the state of exception. This notion has a history, too, and it is a very grim one. The state of exception describes powers that make law and at the same time proclaim themselves above the law. The history of this concept runs from the Romans through the European monarchies on up to the Nazi regime.
In this last case, the Third Reich operated under a continual state of exception as against a temporary state of exception deriving from an unforeseen emergency. And to proceed to our point, the U.S. has claimed for itself a similarly continual state of exception since the early Cold War years. Its relations with the ICC are a clear manifestation of this reality.
There was talk among the Western powers for most of last year, readers may recall, of the U.N. forming a special court to try Putin and other Russian officials on charges of war crimes allegedly committed in the course of the Ukraine conflict. But Washington and its allies overestimated international sentiment: They could get no appreciable support among member states for any such project. They similarly failed when, as an alternative, they tried to get the U.N. General Assembly to authorize the ICC, a U.N. body, to investigate the numerous allegations of war crimes leveled since the start of hostilities in February 2022.
It was at this point that the West—reportedly led by Britain—began an intense lobbying campaign at The Hague to get the ICC to act even without a U.N. referral behind it. The arrest warrant announced last Friday appears to be the result of this pressure.
The legalities here are important. While Russia is not a signatory to the ICC’s founding treaty, a U.N. referral such as the U.S. and its allies sought would extend the court’s jurisdiction even to nations that do not recognize it. This is why the Western powers spent all those months trying to bring the General Assembly around.
Is our conclusion other than obvious? The ICC’s action last week has no sound legal basis, and the court has no jurisdiction over a nation that does not recognize it. “But as we have seen on so many occasions, over so many matters in the past few years,” Alexander Mercouris observed in an informed webcast over the weekend, “simple issues of legal procedure, of due process, are no longer allowed to stand in the way when a demand to do something of this nature appears.”
The charges of criminal abduction and forced deportation of children appear to be equally flimsy. The Russian Federation has made no secret of its effort to remove thousands of children from harm’s way over the past year. Some of these children were parentless and living in orphanages, by the Russian account; when parental consent was involved, the Russians running the program say they had it. These children, not to be missed, were removed from areas under constant artillery bombardment from Ukrainian forces in the eight years following the U.S.–cultivated coup in 2014.
CBS News, The New York Times, NPR, The Guardian, CNBC, The Associated Press: News of these alleged abductions was ubiquitous just prior to the ICC’s action last Friday. They all rested on a single source, a report Yale University produced as part of an organization called Conflict Observatory, which describes itself as “a central hub to capture, analyze, and make widely available evidence of Russian-perpetrated war crimes and other atrocities in Ukraine.”
Right out of the box, problems. Conflict Observatory is not interested in war crimes in Ukraine; it is interested in Russian war crimes—another matter altogether. And since we have had no impartial, on-the-ground investigations of any of the countless allegations of Russian war crimes, this seems a presumptuous, not to say prejudicial, statement of purpose.
Michael Tracey, the enterprising independent journalist, has done some excellent spade work since all the press reports appeared last week. And sure enough, it is the usual story. Conflict Observatory claims to operate as a nongovernmental organization, but it is a non–NGO “NGO” funded by the State Department. So much for Conflict Observatory’s claim to conduct disinterested inquiries. It did no on-the-ground research for its report on Russian “abductions,” no interviews with parents, children, officials, or anyone else, and never went anywhere near the 40 or so “re-education camps”—that freighted Cold War term—it says Russia runs. Instead, it skates around social media and relies otherwise on “open source” research and press reports, including Ukrainian press reports.
Let me get to the point: Conflict Observatory bears all the marks—its focus, its funding, its method—of a reprise of the Bellingcat ruse, which is nothing more than a generator of propagandistic nonsense whose funding traces to NATO and various intelligence agencies.
Tracey’s long Twitter thread on the Conflict Observatory case can be read here. Among his more remarkable findings is the testimony of one of the report’s co-authors, a Ms. Howarth, during a presentation at the State Department. Ms. Howarth cites the numerous reasons parents voluntarily sent their children to Russia that she found as she reviewed the open source data: constant shelling, blackouts, disrupted sanitation, malnutrition, and on through the list of wartime calamities. Go figure.
So, we must await evidence, forlorn as this prospect may be, that what a bogus NGO, the State Department, American academia, American media, and the ICC call abductions were other than humanitarian evacuations. In the meantime, two questions. One, where are all the distressed parents whose children have been taken forcefully from them? We have heard no chorus of voices among them raised. There have been a few interviews with distressed parents—The AP did a couple—but the identity of these distressed parents and the circumstances of these interviews must fairly remain open to question. Two, we have to ask what Russia wants with thousands of parentless children. If we are invited to entertain the thought that Russia is a large-scale state kidnapper, we deserve an explanation of this kind. What is the motivation? This seems to me a gaping hole in the story.
Again, let us see. But given the sleazy appearance of Conflict Observatory as the main disseminator of the abduction story, and the sleazy, behind-the-curtain conduct of the Western powers prior to the ICC’s action last week, it looks to me as if evacuations became kidnappings when Western propagandists got to work in The Hague over the past few months.
The Rome Statute establishing the ICC was signed in 1998, and the court formally came into being in mid–2002. In the two decades and a year of its existence, its reputation has been downhill more or less all the way. A year after the court began operating came the American invasion of Iraq, the casualties of up to a million, the Abu Ghraib atrocities, and so on. No charges have ever been brought. Ditto, as John Whitbeck notes in his excellent blog, in the matter of Israeli conduct toward Palestinians, the illegal settlements, etc.: No charges, no warrants, no trials.
Numerous African nations have resigned from the ICC in recent years, and the whole of the African Union has accused the court of acting as an instrument of Western hegemony. This is the front edge of a very long story.
The late Shirley Hazzard, a wonderful novelist and a longtime observer of the U.N. from within its walls and without, published a book in 1973 called Defeat of an Ideal. I recall reading it in my younger years. In it, Hazzard recounted how the U.S. imported its Cold War anti–Communist freak show into the U.N. onward from the organization’s very first years. So began Washington’s effort to neuter the whole of the organization in the cause of American preeminence—“global leadership” as we have persuaded ourselves imperial ambition is rightfully called.
What Hazzard witnessed was a prelude to what has taken place since. I can think of few nominally multilateral organizations whose declared internationalism has not been compromised by the U.S. and the other Western powers. The infamous case of the Organization for the Prohibition of Chemical Weapons, the OPCW, is but one example readily to hand. The International Court of Arbitration is another. And the ICC another.
As Hazzard succinctly had it in her book’s title, the ideals born of the high aspirations shared the world over after 1945 have been subverted. In effect, global public space, as we might call it, has been perverted into American public space. If this is nothing new, the ICC’s action last week reminds us of the damage that has been done and the international justice we must live without.
I loved Joey Biden’s statement after the ICC announced its arrest warrant. “It’s justified,” the president said. Referring to the court he added, “But the question is, it’s not recognized internationally by us, either. But I think it makes a very strong point.”
This is the state of exception when it rolls casually off the famously loose tongue of a senile old man: We don’t abide by it, but let it assert its authority over others. Washington has been viciously adamant over the years in defense of Americans’ immunity from ICC prosecutions, threatening sanctions and military retribution in extreme cases. But as Michael Tracey reports, this has not stopped the State Department from collaborating with the ICC to get proceedings against Russian officials going—this with the authorization of Congress, the Congress that rejects the ICC’s jurisdiction.
There is, indeed, none of Joey Biden’s apple pie in the story of America’s claim to a state of exception as its post–1945 modus operandi.
The modern theorist of the state of exception was Carl Schmitt, a prominent Nazi and a lifelong opponent of liberal democracy in any version of it. He defined the concept in “On Dictatorship,” a 1921 essay, and refined it a year later in “Political Theology.” Schmitt wrote in response to the chaos of the Weimar Republic. Modern societies needed strong leaders willing to promulgate law but stand above it, he argued. The power to proclaim a state of exception is inseparable from the concept of sovereignty. The Reich, needless to say, had a lot of time for Schmitt.Giorgio Agamben, the noted Italian philosopher, published State of Exception in 2005 to trace the roots of Schmitt’s thinking back to Augustus and bring it forward to our time. Here he is on the Nazi regime:
The entire Third Reich can be considered a state of exception that lasted 12 years. In this sense, modern totalitarianism can be defined as the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system.
As I have written elsewhere, the British courts’ treatment of Julian Assange is an excellent if disgraceful example of the state of exception as Agamben describes it here. Assange was tried under British law, but the judges adjudicating his case did not abide by the law during his trials. Agamben goes a little further back, to George W. Bush’s authorization of the abductions, torture, and detention of alleged terrorists at Guantánamo Bay in November 2001:
What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of people charged with a crime according to American laws.
When did all this begin? How did we get from Carl Schmitt and the Nazis to “black sites” and waterboarding to what amounts to a covert op to subvert the ICC? And by whose hand? These were my questions when I called Aaron Good, who last year published American Exception: Empire and the Deep State, to talk about what happened in The Hague last week. The book is an exception in its own right: It plumbs the depths of America’s quiet, not-much-noticed and never declared claim to the state of exception as no book, to my knowledge, has heretofore done.
Good referred me to a document called NSC–68, a paper Paul Nitze and Dean Acheson, two early Cold Warriors, wrote for the National Security Council in 1950. The document cast the Soviets as so overwhelming a threat that it presented the U.S. with an emergency and required, in so many words, a state of exception.
“Along with NSC–10/2, an earlier document, NSC–68 provided what was essentially an open-ended assertion of the state of exception—ostensibly to defend against the allegedly existential threat posed by the global communist conspiracy,” Good said. “A passage in NSC–68 captures it best: ‘The integrity of our system will not be jeopardized by any measures, covert or overt, violent or non-violent, which serve the purposes of frustrating the Kremlin design, nor does the necessity for conducting ourselves so as to affirm our values in actions as well as words forbid such measures.’
“Think about this in conjunction with the elastic clause of the 1947 National Security Act—the provision that authorized the CIA to ‘perform such other functions and duties related to intelligence affecting the national security as the President or the [DCI] may direct,’” Good continued. “With this early Cold War legislation and these secret NSC planning documents, the U.S. had created a clandestine intelligence service secretly authorized to operate without legal restraint. These formed the basis for all the covert ops, the ‘plausible deniability,’ and all else that followed.”
Good had no difficulty fast-forwarding to the ICC’s conduct last week at the very legible behest of the U.S. and its allies. “I read this as the abuse of an instrument of international law and so a violation of the spirit of international law,” he said. “It’s a desperate gambit, a new level of farce for the American empire—and in this a sign of weakness.”
Desperate, fatally damaging to our global public space, dangerous: It is all of these. If there is a virtue in the ICC’s perfectly frivolous conduct last week and what led to it, this lies in exposure: The court and those who manipulate it have at last been exposed. It is not a good place we find ourselves to be in, but it is best we recognize it for what it is.