Rubio’s Vision of International Justice: War Crimes and No Punishment

If you asked players at the World Cup whether referees are needed, those who commit the most fouls or spend all their time offsides would probably tell you that the game would be better off without them, while those who get fouled would feel very differently. It’s the same with criminals and victims. The former would like it if there were no cops, prosecutors, or judges. The latter, however, view them as essential so that ill-intentioned people cannot take advantage of the law-abiding majority.

Secretary of State Marco Rubio wants to dismantle the International Criminal Court (ICC) — i.e., the entity that investigates things like war crimes or crimes against humanity.

Now, why do you think that is?

As Rubio tells it this week in a Wall Street Journal editorial and a video message, it’s certainly not about Donald Trump threatening Iran with war crimes and total annihilation, the killing of more than 100 school girls in January, torture, extraordinary rendition, the thousands of civilians killed collateral damage in the war on terror, or the double-tapping of suspected drug smugglers in the Caribbean in violation of the military’s own rules of war.

Instead, he wants Americans to believe that this crusade is about their sovereignty and not allowing themselves to be subjected to some highfalutin, faraway entity with its “laws” that wants to dictate how they should conduct their own affairs.

Here is how Rubio puts it.

The ICC’s interfering with American military and law enforcement operations isn’t only a grave overreach of its purported authorities. It would mean the death of the US as a sovereign and independent nation. Our decision and our people would be at the mercy of the ICC and its collaborators in the “international community.” To accept the ICC is to surrender control of our national destiny. Perhaps more polite and compliant nations could make their peace with that arrangement. But this is America.

You know, come to think of it, that sounds awfully familiar — you just have to replace “sovereignty” with “state’s rights.”

Here is an editorial that appeared in 1857 in the Richmond Enquirer:

If the people of the North would cease to hurl thunderbolts at us from their pulpits, to fulminate firebrands into our society through their press, to attempt to intercept us in every territory, to defraud and to force us out of our rights; if, in other words, they would “render unto Ceasar the things that are Ceasars” [sic] concede to us equality in the Union, offer no illegal and unjust obstruction to the extension of our institutions, if they would let us alone and leave slavery to the states, and to the same protection and privileges enjoyed by all other property under the Constitution, the agitation of the question would come to an end on the instant.

Yup, he sounds just like that. If the ICC would just allow the US to break international laws and commit a bunch of war crimes, then everything would be fine.

Of course, Rubio thinks “international law” is a concept so absurd that it should be put in quotation marks. He claims that the ICC is “waging a war against our country. Not with bullets or missiles, but with statutes and compacts and the force of so-called international law.”

That’s like Don Corleone complaining to his consigliere Tom Hagen that the cops are after him with “subpoenas and search warrants and so-called criminal laws.” Then again, that doesn’t quite fit because in the real world, Rubio is the consigliere of Don Trump.

A closer examination of the secretary of state’s reasoning as to why Americans shouldn’t submit themselves to an international court, no matter how serious the crimes they commit, reveals how flawed his arguments are.  

“For 250 years, Americans have governed ourselves as a free and sovereign people,” he said in his video message. “We choose our own leaders, we determine our own laws, and when we are accused of a crime, we stand for judgement before a jury of our peers.”

Is that so?

Then why isn’t anybody facing consequences for killing those girls in Iran, double-tapping the suspected drug smugglers in the boats in the Caribbean, torturing prisoners of war in Iraq and other detainees in so-called “black sites” around the world, murdering Afghan wedding guests, shooting immigrants for no reason, or, for that matter, attempting a coup in the nation’s capital?

Obviously, not all of those offenses are the kind of things the International Criminal Court would get involved in. It claims no jurisdiction over masked federal goons executing emergency room nurses in broad daylight or sore losers trying to violently overturn the results of an election.

But all of those examples show that the US in general, and this administration in particular, don’t do accountability.

To be fair, neither do many other countries, which is exactly why the ICC exists.

True to the Trump playbook of always pretending to be the victim, Rubio makes it sound as though the court is specifically targeting Americans. But that’s not true. It’s targeting bad actors, and the US just happens to be one. 

There are plenty of others from all over the world.

Like Vladimir Putin for kidnapping Ukrainian children and taking them to Russia.

Or Hamas leader Mohammed Deif for the October 7 terrorist attack on Israel.

Or Benjamin Netanyahu for using starvation as a weapon in his retaliatory assault against the Palestinians.

It’s also important to note that, as in any well-founded court of law, not everybody who is tried by the ICC is automatically convicted: There have also been acquittals of people accused of committing heinous crimes.

For all of those reasons, Rubio’s lamentations ring hollow.

This isn’t about sovereignty any more than the Civil War was about states’ rights, which is to say that it is ostensibly about those things but also not really. 

What the South wanted in the mid-19th century was for white people to continue to own slaves and do with them as they pleased without fear of repercussion.

What Rubio wants is to ensure that a lawless administration, which is already insulated from accountability domestically by a compliant Congress and a subservient Supreme Court, be allowed to commit any crime throughout the world.

He can try to dress up this law-defying impunity any way he wishes, but that is the bottom line.

Therefore, the real question we have is not why Rubio is promising to “dismantle the ICC — brick by brick, if necessary”; it’s why he is choosing this moment to do so.

The most obvious answer, which is backed up by Trump’s own rhetoric, is that the administration, which has stumbled into a self-triggered trap in the Middle East, is planning to do some really indefensible things to force Iran to yield.

The kind of things an International Criminal Court might have something to say about.