The United States emerged from World War II as a principal architect of the modern international legal order, including the Nuremberg principles, the Geneva Conventions, and the Universal Declaration of Human Rights. Supreme Court Justice Robert Jackson, who served as chief prosecutor at Nuremberg, articulated a principle that would become foundational to international criminal law when he stated in his opening address on November 21, 1945, that the tribunal represented law applied equally to victor and vanquished alike. Jackson warned that to apply these principles selectively would poison the well of international justice. Yet this same nation has systematically positioned itself outside the accountability mechanisms it helped establish, creating what international legal scholar Michael Glennon has termed a “constitutional crisis in international law.”
American exceptionalism, as both ideology and practice, has functioned to create what legal scholars term a “structural impunity” wherein acts that would trigger international criminal liability for other states are systematically shielded from legal consequence. Political scientist Michael Ignatieff, in his 2005 work “American Exceptionalism and Human Rights,” describes this as a stance where the United States promotes international human rights standards while simultaneously exempting itself from their binding force. This paradox extends beyond mere hypocrisy to constitute a systematic architecture of exception embedded in policy, law, and institutional practice. This article examines this phenomenon through three analytical lenses: historical documentation of violations, institutional mechanisms of impunity, and contemporary manifestations in domestic enforcement agencies.
The systematic nature of this exemption becomes evident when examining the institutional decisions made by successive administrations. From the Reagan administration’s rejection of the International Court of Justice’s jurisdiction in 1986 following the Nicaragua case, to the Clinton administration’s signing but refusing to ratify the Rome Statute, to the Bush administration’s “unsigning” of the ICC treaty in 2002, to the Trump administration’s sanctioning of ICC prosecutors, a consistent pattern emerges across ideological lines. This suggests structural rather than partisan causation, rooted in conceptions of sovereignty and power that transcend individual political movements.
Theoretical Framework: Impunity and Hegemonic Power
Impunity, as conceptualised by international human rights bodies, refers to the absence of legal accountability for serious violations of international humanitarian law and human rights law. The UN Commission on Human Rights, in its 1997 report by Special Rapporteur Louis Joinet, defines it as “the impossibility, de jure or de facto, of bringing perpetrators of violations to account—whether in criminal, civil, administrative or disciplinary proceedings—since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.” This definition encompasses both formal legal barriers to prosecution and practical obstacles that prevent accountability from being realized.
The concept gained prominence in Latin American transitional justice contexts, where amnesty laws and other mechanisms prevented prosecution of military and security forces responsible for disappearances, torture, and extrajudicial killings. Argentine legal theorist Carlos Nino, in his work on transitional justice following Argentina’s military dictatorship, identified impunity as fundamentally corrosive to the rule of law because it establishes a dual system: one law for ordinary citizens and another (or none) for those wielding state power. The Inter-American Court of Human Rights has repeatedly ruled that amnesty laws violating states’ duty to investigate and punish serious human rights violations are themselves violations of the American Convention on Human Rights. In the 2001 Barrios Altos case concerning Peru, the court established that amnesty laws for crimes against humanity and war crimes are per se incompatible with states’ international obligations.
Within international criminal law scholarship, impunity is understood as violating the principle of complementarity enshrined in the Rome Statute. This principle holds that international prosecution becomes appropriate when national systems are “unwilling or unable genuinely to carry out the investigation or prosecution.” The International Criminal Court’s Office of the Prosecutor, in policy papers issued in 2013 and updated in 2016, elaborated criteria for assessing unwillingness, including proceedings conducted to shield perpetrators from criminal responsibility, unjustified delays inconsistent with intent to bring perpetrators to justice, and proceedings not conducted independently or impartially. By these standards, systematic failure to investigate and prosecute serious violations constitutes not merely a gap in enforcement but an affirmative violation of international legal obligations.
Structural impunity operates differentely, It involves creating legal, institutional, and political architectures that systematically preclude accountability before violations even occur. The American Service-Members’ Protection Act of 2002, colloquially known as “The Hague Invasion Act,” exemplifies structural impunity. This legislation, codified at 22 U.S.C. § 7421-7433, authorizes the President to use “all means necessary and appropriate” ,including military force to release any U.S. personnel detained by the International Criminal Court. The Act further prohibits U.S. cooperation with the ICC, restricts military assistance to countries that are ICC parties unless they sign bilateral immunity agreements, and protects U.S. personnel from surrender to the court. This creates a prophylactic shield preventing accountability before any specific act occurs. protection of specific perpetrators from legal consequence—and structural impunity—systemic mechanisms that prevent accountability at the state level. Individual impunity might manifest through pardons, as when President Gerald Ford pardoned Richard Nixon in 1974, or when President George H.W. Bush pardoned six Reagan administration officials involved in the Iran-Contra affair in 1992. These acts shield particular individuals from prosecution but do not necessarily prevent future accountability for others or alter the formal legal framework.
Legal scholar Diane Orentlicher, in her work on duty to prosecute human rights violations, distinguishes between de jure impunity created through formal legal barriers like amnesty laws, and de facto impunity resulting from practical obstacles such as lack of political will, inadequate resources, or corrupted institutions. The United States exhibits both forms. De jure impunity exists through legislation like the ASPA, through doctrines like qualified immunity that shield officials from civil liability, and through Status of Forces Agreements that grant the United States exclusive criminal jurisdiction over its personnel abroad. De facto impunity operates through prosecutorial discretion declining to pursue cases, through military justice systems that rarely hold senior officials accountable, and through use of state secrets privilege to prevent judicial review of classified programs.
The distinction matters because remedies differ. Individual impunity might be addressed through political pressure, prosecutorial courage, or eventual accountability mechanisms as political conditions change. Structural impunity requires dismantling or reforming the institutional architecture itself—a far more difficult undertaking requiring fundamental shifts in how state sovereignty and international obligation are conceived. Political scientist Kathryn Sikkink, in her 2011 book “The Justice Cascade,” documents how individual prosecutions can sometimes catalyze broader institutional reforms. However, where structural impunity is deeply embedded in national security frameworks and conceptions of sovereignty, as with the United States, such cascades face substantial barriers.
Hegemonic Power and Legal Exception
Drawing on Carl Schmitt’s theory of sovereignty articulated in his 1922 work “Political Theology,” wherein he defined the sovereign as “he who decides on the exception,” this framework examines how hegemonic states create zones of legal exemption. Schmitt argued that sovereignty fundamentally involves the power to suspend normal legal order when deemed necessary. While Schmitt developed this theory in the context of Weimar Germany’s constitutional crisis, the concept illuminates how powerful states position themselves outside constraints they impose on others. Giorgio Agamben, building on Schmitt’s work, developed the concept of the “state of exception” in his 2005 book of the same name. Agamben traces how states of emergency—initially temporary suspensions of normal legal order—become permanent conditions, creating what he calls “zones of indistinction” where law applies selectively. The U.S. detention facility at Guantánamo Bay exemplifies such a zone. Located on Cuban territory over which the United States exercises complete jurisdiction without sovereignty, detainees were held in what the Bush administration termed a “legal black hole” where neither U.S. constitutional protections nor international humanitarian law fully applied. Despite Supreme Court rulings in Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), and Boumediene v. Bush (2008) affirming some judicial review and habeas corpus rights, the facility continues operating over two decades after opening, with many detainees never charged or tried.
The US position demonstrates what might be termed “imperial sovereignty”—the capacity to create and enforce international law while remaining exempt from its jurisdiction. This concept draws on historical imperial systems where metropolitan powers imposed legal regimes on colonial subjects while reserving different legal treatment for themselves. Legal historian Lauren Benton, in her 2010 work “A Search for Sovereignty,” documents how European empires created layered legal geographies where different rules applied based on status and location. The contemporary international system ostensibly abolished such hierarchies through principles of sovereign equality enshrined in the UN Charter. Yet practice reveals persistent hierarchies where powerful states enjoy legal privileges unavailable to weaker ones.
International relations scholar David Kennedy describes this in his 2006 work “Of War and Law” as international law functioning not as a constraint on hegemonic power but as a vocabulary through which such power is exercised. The United States routinely invokes international law to justify actions—humanitarian intervention in Kosovo, collective security operations against Iraq, counterterrorism measures globally—while simultaneously rejecting international legal institutions’ authority to review those actions. This produces what Kennedy terms a “dark side” of international humanitarian law: the same legal vocabulary that promises restraint on warfare becomes a tool legitimating expanded military action. The hegemonic exemption also manifests in institutional design. The UN Security Council’s permanent member veto power, granted to the five victors of World War II, ensures that no binding resolution can pass against their interests or those of their close allies. The United States has exercised this veto 89 times as of 2024, frequently to shield Israel from accountability measures, to block ICC referrals, and to prevent investigations of its own conduct. This institutional architecture, established when American power was at its zenith in 1945, embeds hierarchical power relations into the supposedly universal legal order. Political scientist Ian Hurd, in his 2007 work “After Anarchy,” argues that this arrangement produces legitimacy costs as the gap between universal principles and particular privileges becomes increasingly visible and contested.
Historical Documentation: Major Cases and Patterns
The atomic destruction of Hiroshima on August 6, 1945, and Nagasaki on August 9, 1945, killed approximately 200,000 people, predominantly civilians, by the end of 1945. These figures, documented by Japanese and American researchers including the Radiation Effects Research Foundation, include both immediate deaths from blast, heat, and acute radiation, and deaths within months from injuries and radiation sickness. Tens of thousands more died in subsequent years from radiation-related cancers and other illnesses. Historian Tsuyoshi Hasegawa, in his 2005 book “Racing the Enemy,” documents that approximately 95% of casualties were civilians, including women, children, the elderly, and Korean forced labourers.
While defenders cite military necessity and the context of total war, international legal scholars, including Francis Boyle of the University of Illinois and Richard Falk of Princeton, have argued these actions would constitute violations of the principle of distinction between civilian and military targets under customary international law applicable even before the 1949 Geneva Conventions. The 1907 Hague Convention IV, which the United States had ratified, prohibited bombardment of undefended cities. While both Hiroshima and Nagasaki contained military facilities, the weapons used could not discriminate between military and civilian targets—the defining characteristic of weapons subsequently prohibited under international humanitarian law.
The U.S. Strategic Bombing Survey, published in 1946, concluded that “Japan would have surrendered even if the atomic bombs had not been dropped, even if Russia had not entered the war, and even if no invasion had been planned or contemplated.” This assessment, based on interrogations of Japanese officials, suggests that the military necessity justification may not withstand scrutiny. General Dwight Eisenhower later wrote in his memoir “Mandate for Change” that he opposed using atomic weapons against Japan, believing them unnecessary and that the United States should avoid shocking world opinion by being first to use such weapons. Admiral William Leahy, Truman’s Chief of Staff, wrote in his memoir “I Was There” that “the use of this barbarous weapon at Hiroshima and Nagasaki was of no material assistance in our war against Japan” and that “in being the first to use it, we had adopted an ethical standard common to the barbarians of the Dark Ages.”
No accountability mechanisms were ever engaged for these actions. The International Military Tribunal for the Far East (Tokyo Trials) prosecuted Japanese leaders for war crimes but did not examine Allied conduct. This established a precedent of victors’ justice that would characterise subsequent accountability efforts. Historian John Dower, in his Pulitzer Prize-winning book “Embracing Defeat,” notes how the asymmetry of accountability in the Tokyo Trials—examining Japanese actions while exempting American conduct from scrutiny—undermined the tribunals’ claim to represent universal justice rather than merely the interests of victorious powers.
Korean War (1950-1953)
The US bombing campaign against North Korea destroyed approximately 85% of buildings in the country, according to Dean Rusk, who served as Assistant Secretary of State for Far Eastern Affairs during the conflict. In a 1984 interview, Rusk stated that “we burned down just about every city in North Korea and South Korea too.” Air Force General Curtis LeMay, who commanded the Strategic Air Command during the Korean War, later acknowledged in a 1984 interview with historian Richard Rhodes that “we went over there and fought the war and eventually burned down every town in North Korea anyway, some way or another, and some in South Korea, too.” LeMay candidly admitted, “We killed off—what—twenty per cent of the population of Korea as direct casualties of war, or from starvation and exposure?”
The bombing campaign’s intensity exceeded even that of World War II. According to Air Force data compiled by historian Bruce Cumings in his 2010 book “The Korean War: A History,” US forces dropped 635,000 tons of bombs on Korea, more than the total dropped in the Pacific theatre during World War II. This included 32,557 tons of napalm, which caused particularly horrific civilian casualties. The indiscriminate nature of these attacks raised serious questions under the laws of war. The principle of distinction, even as understood in 1950, required distinguishing between civilian and military targets. The deliberate destruction of civilian infrastructure and agricultural resources appeared aimed not at military objectives but at breaking the population’s will to resist.
Particularly troubling were attacks on North Korean dams in 1953. In May and June of that year, US aircraft bombed the Toksan and Chasan irrigation dams, flooding rice fields and destroying crops that fed millions. These attacks, documented in contemporary military publications including the official Air Force history and in articles in Air University Quarterly Review, deliberately targeted agricultural infrastructure. The attacks killed an estimated 1,500-2,000 civilians in the immediate flooding and threatened famine for millions more. International legal scholars, including William Bradford writing in the Air Force Law Review and Chantal Meloni in the Journal of International Criminal Justice, have argued these attacks would violate Article 54 of Additional Protocol I to the Geneva Conventions, which prohibits attacking objects indispensable to civilian survival, though that protocol was not adopted until 1977.
Declassified documents reveal deliberate targeting of civilian populations to break morale. A 1952 intelligence memorandum cited by historian Sahr Conway-Lanz in his 2006 book “Collateral Damage” noted that psychological warfare strategy included “creating a condition of dependence upon the UN through the destruction of North Korea’s economy.” Military planners explicitly discussed maximising civilian suffering to pressure the North Korean government. General LeMay’s statement that if the United States had lost the war, he and others would have been prosecuted as war criminals suggests awareness that these tactics violated accepted norms even by the standards of the time.
The war’s civilian toll remains disputed but was catastrophic. Estimates of North Korean civilian deaths range from 600,000 to over 1.5 million in a population of approximately 10 million—between 6% and 15% of the entire population. South Korean civilian deaths totalled approximately 990,000 according to data compiled by the Truth and Reconciliation Commission established by the South Korean government in 2005. The commission also documented systematic massacres of suspected communist sympathisers by South Korean forces, often with US knowledge or participation, including the killing of hundreds of civilians at Nogun-ri in July 1950 by US troops, an incident the US military investigated and acknowledged in 2001.
Vietnam War (1955-1975)
The conflict in Southeast Asia produced multiple documented incidents that international legal experts classify as potential war crimes. The war’s civilian toll exceeded even that of Korea. Various estimates place total Vietnamese deaths—military and civilian, North and South—between 1.5 and 3.8 million. Historian Nick Turse, in his 2013 book “Kill Anything That Moves,” documents systematic patterns of violence against civilians that extended far beyond isolated incidents.
The My Lai Massacre on March 16, 1968, represents the best-documented but far from unique atrocity. US troops from Charlie Company, 1st Battalion, 20th Infantry Regiment, killed between 347 and 504 unarmed civilians, including children and the elderly. The killings occurred over four hours as soldiers systematically went through the hamlet, shooting residents, burning homes, raping women, and killing livestock. Army photographer Ronald Haeberle documented the aftermath, producing images that shocked the American public when they were published in 1969. Despite the extensive documentation and the military’s own investigation led by Lieutenant General William Peers, only one soldier, Lieutenant William Calley, was convicted. Calley initially received a life sentence, but this was reduced to twenty years, then ten years, and he ultimately served three and a half years under house arrest before being paroled in 1974. Captain Ernest Medina, who commanded the company, was acquitted. No senior officers faced prosecution despite the Peers Commission finding that commanders had failed in their oversight responsibilities.
The aerial bombardment campaigns produced far larger casualties. Operation Rolling Thunder, conducted from March 1965 to November 1968, involved the systematic bombing of North Vietnam. The Pentagon Papers, the classified government study leaked by Daniel Ellsberg, documented that planners understood these operations would kill thousands of civilians and that the campaign’s strategic bombing component deliberately targeted population centres to pressure the North Vietnamese government. Assistant Secretary of Defence John McNaughton wrote in a 1965 memo that the bombing aimed “to create enough pain and pressure to cause NVN [North Vietnam] to cease and desist.” The Johnson administration’s own estimates, documented by historian Mark Clodfelter in “The Limits of Air Power,” projected 52,000 civilian casualties from Rolling Thunder. Subsequent research suggests actual civilian deaths were considerably higher. Historian Guenter Lewy, in “America in Vietnam,” estimates 52,000 civilian deaths from Rolling Thunder, while the Vietnamese government figures claim 182,000 civilian deaths from US bombing throughout the war, though these higher figures are disputed.
Operation Arc Light, the B-52 bombing campaign, dropped over 2.7 million tons of bombs on Southeast Asia, according to Air Force data. These carpet bombing operations, using planes carrying 27 tons of explosives each, devastated vast areas. Much of the bombing occurred in rural areas where distinguishing civilian from military targets was impossible. The “free-fire zone” policy, documented by journalist Neil Sheehan in “A Bright Shining Lie,” designated entire areas where anyone present could be killed without verification of combatant status. This policy, which affected millions of civilians living in areas deemed hostile, effectively eliminated the principle of distinction in large regions.
The use of chemical warfare constituted perhaps the most enduring violation. From 1962 to 1971, the US military sprayed approximately 20 million gallons of herbicides, including Agent Orange containing dioxin, over South Vietnam. The Ranch Hand program, documented in Air Force and Pentagon records, aimed to defoliate forests where insurgents hid and to destroy crops that might feed them. The ecological destruction was immense: approximately 20% of South Vietnam’s jungles were sprayed, some areas repeatedly. But the human cost proved even more severe. The Red Cross of Vietnam estimates 4.8 million Vietnamese people were exposed to Agent Orange. The Vietnamese government estimates 400,000 people killed or maimed by chemical exposure and 500,000 children born with birth defects. While US government figures dispute these numbers, the link between dioxin exposure and numerous health conditions is scientifically established. The Institute of Medicine, in a series of reports commissioned by the US Department of Veterans Affairs, has recognised presumptive service connection for US veterans between numerous conditions and Agent Orange exposure, implicitly acknowledging the chemical’s harm.
International legal scholars, including Francis Boyle and international law professor Ved Nanda, have argued that this use of chemical agents against civilian populations and agricultural systems violated the 1925 Geneva Protocol, which prohibited “asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices” in warfare. The United States maintained that herbicides were not covered by this prohibition, but the UN General Assembly passed Resolution 2603 in 1969, with a vote of 80 to 3 (with 36 abstentions), declaring that the prohibition on chemical weapons applied to any chemical agents of warfare, including herbicides. The United States voted against this resolution.
The Phoenix Program represented systematic violence cloaked in bureaucratic language. This CIA-coordinated operation, described in detail in congressional testimony by program director William Colby and documented by historian Douglas Valentine in “The Phoenix Program,” aimed to “neutralise” the Viet Cong infrastructure through capture, interrogation, and often assassination of suspected members and sympathisers. CIA documents and congressional investigations revealed that the program resulted in the deaths of 26,000 to 41,000 individuals between 1968 and 1972. Many were civilians not engaged in combat. Methods included torture during interrogation, assassination without trial, and terrorization of civilian populations. Former military intelligence officer K. Barton Osborn testified to Congress in 1971 about systematic torture, including electrical torture, water torture, beatings, and executions, stating he never saw any Viet Cong suspect survive interrogation. While program defenders argued these were legitimate counterinsurgency operations, the deliberate targeting of civilian political infrastructure, the absence of judicial process, and the systematic use of torture would constitute grave violations under contemporary international humanitarian law.
Latin American Operations (1960s-1990s)
Declassified documents, particularly those released through the National Security Archive’s efforts under the Freedom of Information Act, reveal extensive US involvement in operations throughout Latin America that resulted in civilian deaths and systematic human rights violations. These operations shared common patterns: training and support for military forces that committed atrocities, intelligence sharing to enable repression of political opposition, and diplomatic protection for regimes engaged in systematic human rights violations.
Operation Condor represented the most systematic coordination of state terror across national boundaries. Declassified State Department cables and CIA documents reveal that in 1975, intelligence services from Argentina, Chile, Uruguay, Paraguay, Bolivia, and Brazil, with US knowledge and tacit support, created a coordinated network for tracking, capturing, and eliminating political opponents across South American borders. A 1976 State Department cable from Secretary of State Henry Kissinger to the US Ambassador in Argentina, declassified in 2010, shows Kissinger was informed of the program and chose not to object. Journalist John Dinges, in his book “The Condor Years,” documents how this coordination resulted in an estimated 60,000 deaths and 30,000 disappearances across South America.
The Argentina case is particularly well-documented due to the truth commission established after the military junta fell in 1983. The National Commission on the Disappearance of Persons (CONADEP), led by writer Ernesto Sábana, documented 8,961 disappearances (with the Madres de Plaza de Mayo and other human rights groups estimating the actual number exceeded 30,000), systematic torture in approximately 340 secret detention centres, and the theft of an estimated 500 babies born to detained mothers. Declassified documents show US officials were informed of these abuses. A 1978 State Department cable reported that Argentina’s military government had created a policy of systematic disappearance and murder of political opponents. Yet the United States continued military and economic support. The School of the Americas in Fort Benning, Georgia, trained numerous Argentine military officers who later participated in the repression, as documented in researcher Lesley Gill’s book “The School of the Americas.”
In Guatemala, the historical record is even more damning. The UN-sponsored Historical Clarification Commission, which published its report “Memory of Silence” in 1999 after investigating human rights violations during Guatemala’s 36-year civil war, reached several devastating conclusions. The commission documented over 200,000 deaths and disappearances, 93% attributed to state forces and allied paramilitaries, and concluded that acts of genocide were committed against Maya populations. The report specifically examined US involvement, stating: “Until the mid-1980s, the United States Government and U.S. private companies exercised pressure to maintain the country’s archaic and unjust socio-economic structure.” It further found that “the majority of human rights violations occurred with the knowledge or by order of the highest authorities of the State.”
Declassified CIA documents reveal the agency’s central role in overthrowing Guatemala’s democratically elected government of Jacobo Árbenz in 1954, initiating decades of military rule. Historian Stephen Schlesinger’s book “Bitter Fruit,” drawing on declassified materials, documents how the CIA recruited, trained, and armed the forces that toppled Árbenz, primarily because his land reform threatened United Fruit Company’s holdings. The resulting military governments received extensive US training and support. The Guatemalan army’s intelligence service, the G-2, worked closely with CIA operatives. Documents show US officials were aware of military operations against civilian populations. A 1966 State Department memorandum described Guatemalan security forces’ program of eliminating communist party members, and others deemed threats, noting “it is clear that we have not been able to control the extent of repression.”
The genocide finding deserves emphasis. In the Ixil Triangle region, the commission documented that between 1981 and 1983, the military destroyed approximately 70 to 90 per cent of Ixil Maya villages. In one operation, “Victoria 82,” the army killed an estimated 1,771 Ixil Maya civilians in 86 villages. Anthropologist Beatriz Manz, in her book “Paradise in Ashes,” documents how soldiers would arrive in villages, gather residents, separate men from women and children, then systematically massacre the population before burning the village. The Historical Clarification Commission concluded these were not isolated incidents but part of a deliberate plan to destroy Maya communities. Guatemala’s own courts have subsequently convicted military officers, including former dictator Efraín Ríos Montt, of genocide, though his conviction was later overturned on procedural grounds.
In El Salvador, US involvement was even more direct and contemporary. Throughout the 1980s civil war, the United States provided over $4 billion in military and economic aid to the Salvadoran government and trained thousands of Salvadoran soldiers. The UN Truth Commission for El Salvador, which reported in 1993, documented over 75,000 deaths during the conflict and found that 85% of violations were committed by state forces, with only 5% attributable to leftist guerrillas. The commission documented systematic patterns of extrajudicial killing, torture, and disappearance.
The El Mozote massacre in December 1981 represents the largest single documented atrocity. The elite Atlacatl Battalion, trained by US forces at Fort Bragg, North Carolina, spent three days killing approximately 800 civilians in El Mozote and surrounding hamlets, including over 300 children. Survivors testified that soldiers separated residents by age and sex before shooting the men, then the women, and finally the children. The Atlacatl soldiers were armed with M16 rifles provided by the United States. Contemporary New York Times and Washington Post reports on the massacre were disputed by the Reagan administration. Thomas Enders, Assistant Secretary of State for Inter-American Affairs, testified to Congress in February 1982 that there was no evidence a massacre had occurred. Elliott Abrams, then Assistant Secretary of State for Human Rights, similarly dismissed the reports. It was not until 1992 that forensic investigations by Argentine anthropologists excavated the site, finding clear physical evidence of the massacre. Clothing, shell casings from US-made ammunition, and skeletons of children clustered in buildings confirmed survivors’ accounts.
Archbishop Óscar Romero’s assassination on March 24, 1980, illustrates how US-supported forces targeted even church leaders advocating for human rights. Romero had written to President Jimmy Carter pleading that the United States stop military aid to El Salvador’s government, warning that such aid would be “used to repress the people.” He was shot while celebrating Christian Mass by a professional assassin connected to military death squads. Despite clear evidence of military involvement, the United States continued and expanded aid. No perpetrators were prosecuted until decades later, and even then, only the triggerman, not those who ordered the killing, faced justice.
The case of Nicaragua differed in that it reached the International Court of Justice, providing the most authoritative legal determination of US conduct in the region. In 1986, in Nicaragua v. United States, the ICJ found by a 12-3 vote that US support for Contra forces violated international law. The court found the United States had mined Nicaraguan harbours, attacked Nicaraguan ports and oil installations, and produced a manual encouraging extrajudicial killings. The court ruled that these actions violated Nicaragua’s sovereignty and breached the customary international law prohibition on the use of force. The court found the United States “in breach of its obligation under customary international law not to use force against another State” and ordered reparations.
The United States first challenged the court’s jurisdiction, then, when the court ruled it did have jurisdiction, withdrew from compulsory jurisdiction of the ICJ entirely. When Nicaragua sought Security Council enforcement of the judgment, the United States vetoed the resolution. The UN General Assembly then passed a non-binding resolution calling on all states to respect international law, which passed 94-3 with the United States voting against. The case established international legal precedent that US actions violated international law, yet produced zero accountability or change in policy. Contra operations resulted in approximately 30,000 deaths in Nicaragua according to Nicaraguan government figures, though exact numbers remain disputed. Human Rights Watch and Amnesty International documented systematic atrocities by Contra forces, including torture, rape, mutilation, and killing of civilians, including teachers, health workers, and agricultural cooperative members. The CIA’s “Psychological Operations in Guerrilla Warfare” manual, distributed to Contra forces, explicitly advocated “neutralising” civilian leaders and creating martyrs, euphemisms for assassination that the intelligence committee investigation found appalling.
Iraq Wars and Sanctions (1991-2011)
The 1991 Gulf War, Operation Desert Storm, involved approximately 100,000 tons of bombs dropped on Iraq over 43 days. Estimates of Iraqi military and civilian deaths vary dramatically, ranging from 25,000 to over 200,000. The low estimates come from US military sources focusing on confirmed kills, while higher estimates, including analyses by physicians’ groups and independent researchers, account for deaths from bombing, disease, and infrastructure destruction. The disparities reflect deeply political questions about which deaths count as war casualties.
The destruction of water treatment facilities proved particularly devastating. Colonel John Warden, one of the air campaign’s principal planners, later wrote in “The Air Campaign” that planners explicitly targeted water purification systems to create “ticking time bombs” of disease. Documents obtained through FOIA requests and published by Professor Thomas Nagy in a 2001 article in The Progressive magazine revealed that US planners knew destroying water systems would cause epidemics and child mortality. A January 1991 Defence Intelligence Agency document titled “Iraq Water Treatment Vulnerabilities” noted that without chlorine for purification, “epidemics of such diseases as cholera, hepatitis, and typhoid could occur.” Another DIA document from March 1991 assessed that within six months of sanctions beginning, Iraq’s water treatment capacity would be significantly degraded. This suggests intentional creation of conditions calculated to harm the civilian population.
The “Highway of Death” incident on February 26-27, 1991, when Coalition forces attacked retreating Iraqi military and civilian vehicles on Highway 80 between Kuwait and Iraq, raised questions under international humanitarian law. Estimates suggest 2,000-10,000 Iraqi military personnel and an unknown number of civilians died in the attacks. While retreating military forces remain legitimate military targets, the one-sided nature of the attack—Coalition aircraft and artillery destroying defenceless columns—prompted some military officers, including General Barry McCaffrey, to question whether the attacks continued beyond military necessity into revenge. Journalist Seymour Hersh, in his 1991 New Yorker article, quoted a pilot describing it as “shooting fish in a barrel,” raising questions about whether the principle of proportionality was respected.
The sanctions regime imposed on Iraq from 1990 to 2003 represents one of the most controversial US policies. UN humanitarian coordinators Denis Halliday and Hans von Sponeck both resigned in protest over sanctions they termed genocidal. Halliday, who resigned in 1998 after serving as UN Humanitarian Coordinator in Iraq, stated in a 2000 interview that “we are in the process of destroying an entire society” and that the sanctions met the definition of genocide under the Genocide Convention as “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
UNICEF studies estimated 500,000 excess child deaths attributable to the sanctions regime through the 1990s. A 1999 UNICEF survey found that under-five mortality had increased from 56 per 1,000 live births in 1984-1989 to 131 per 1,000 in 1994-1999 in southern and central Iraq. This represented an over 100% increase in child mortality. While some scholars, including International Relations professor Joy Gordon, dispute the methodology of these estimates and question attributing all excess deaths to sanctions rather than government policy, the humanitarian catastrophe was undeniable. Medical researchers Richard Garfield and Bethany Barnum wrote in the Journal of the American Medical Association that while sanctions themselves were legal, their implementation and continuation despite known humanitarian catastrophe raised questions about crimes against humanity under the principle of willfully causing great suffering.
Secretary of State Madeleine Albright’s response to a 1996 “60 Minutes” interview question about whether the death of 500,000 children was worth the policy goals became emblematic of the administration’s position. When asked “We have heard that a half million children have died. I mean, that’s more children than died in Hiroshima. And—and you know, is the price worth it?” Albright responded, “I think this is a very hard choice, but the price—we think the price is worth it.” Though she later stated she regretted the comment and questioned the statistics, the statement reflected a calculation that massive civilian suffering constituted acceptable collateral damage to policy objectives. This utilitarian calculus, placing strategic goals above humanitarian costs to innocent populations, appears inconsistent with international humanitarian law’s principle that military necessity cannot justify unlimited civilian harm.
The 2003 invasion of Iraq and subsequent occupation produced comprehensive documentation of violations. The war itself, initiated without Security Council authorization, has been characterized by numerous international legal scholars including Professor Richard Falk of Princeton, Professor Francis Boyle of the University of Illinois, and UK Deputy Legal Adviser to the Foreign Office Elizabeth Wilmshurst (who resigned in protest) as a crime of aggression—the “supreme international crime” identified at Nuremberg. UN Secretary-General Kofi Annan stated in a September 2004 BBC interview that the invasion was “not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal.” Former UN Assistant Secretary-General Denis Halliday called it “a criminal act of aggression” in violation of the Nuremberg principles.
The justifications for war—claims of weapons of mass destruction and links to Al-Qaeda—proved false. The comprehensive Iraq Survey Group report, led by Charles Duelfer and published in 2004, found no WMD stockpiles and no active production programs after 1991. The 9/11 Commission Report found no credible evidence of collaboration between Saddam Hussein and Al-Qaeda. Evidence has emerged that intelligence was manipulated to support predetermined policy conclusions. The Downing Street Memo, leaked in 2005, recorded British intelligence chief Richard Dearlove’s July 2002 assessment that in Washington “the intelligence and facts were being fixed around the policy.” Former CIA analyst Paul Pillar wrote in Foreign Affairs that intelligence “was misused publicly to justify decisions already made” and that the administration “went to war without requesting—and evidently without being influenced by—any strategic-level intelligence assessments on any aspect of Iraq.”
The human cost was staggering. The Iraq Body Count project, using conservative methodology based on documented deaths, counts over 200,000 violent civilian deaths through 2019. Population-based mortality surveys produce much higher estimates. The 2006 Lancet study by Johns Hopkins researchers, led by Dr. Les Roberts and Dr. Gilbert Burnbaum, estimated 655,000 excess deaths through June 2006, with 601,000 directly attributable to violence. A follow-up 2007 Opinion Research Business survey estimated over 1 million violent deaths through 2007. While these higher figures remain disputed and criticized for methodological concerns by some epidemiologists, even the most conservative documented counts represent a massive civilian toll. The UN Assistance Mission for Iraq documented 34,452 civilian deaths in 2006 alone, the war’s deadliest year.
The Abu Ghraib scandal, which became public in April 2004 when CBS News aired photographs, revealed systematic torture and abuse at US-run detention facilities. The images showed prisoners subjected to sexual humiliation, physical abuse, being threatened with dogs, stress positions, and other treatment that clearly violated the Geneva Conventions’ Common Article 3 prohibiting “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Major General Antonio Taguba’s internal Army investigation, known as the Taguba Report, found “numerous incidents of sadistic, blatant, and wanton criminal abuses” between October and December 2003. The report documented prisoners being punched, kicked, beaten with chairs, threatened with rape, forced into sexual acts, and subjected to unmuzzled dogs.
Crucially, the abuses were not isolated to Abu Ghraib or the actions of “a few bad apples” as administration officials initially claimed. The Senate Armed Services Committee’s 2008 bipartisan inquiry, led by Chairman Carl Levin and Ranking Member John McCain, concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” The report traced abusive techniques directly to interrogation policies approved by Secretary of Defense Donald Rumsfeld in December 2002 for use at Guantánamo, which then migrated to Afghanistan and Iraq. An April 2003 memo from Rumsfeld to commanders authorized techniques including stress positions for up to four hours, isolation for up to thirty days, removal of clothing, and use of phobias (like fear of dogs) to induce stress.
The International Committee of the Red Cross, in a confidential report leaked to the Wall Street Journal in 2004, concluded that the abusive practices were “tantamount to torture” and that military intelligence personnel were responsible for requesting that guards “soften up” detainees. Physician examinations documented injuries consistent with severe beatings. At least two detainees died during interrogation at Abu Ghraib. Manadel al-Jamadi died in November 2003 during CIA interrogation; the autopsy ruled it a homicide caused by “blunt force injuries to the torso complicated by compromised respiration.” His body was photographed with Specialist Charles Graner giving a thumbs-up beside it—one of the iconic images of the scandal.
Despite extensive documentation, accountability remained minimal and focused on lower-ranking personnel. Eleven soldiers were convicted in courts-martial, receiving sentences ranging from no jail time to ten years. Specialist Charles Graner, identified as a ringleader, received the longest sentence of ten years and served six and a half. No officers above the rank of lieutenant colonel faced criminal charges. Brigadier General Janis Karpinski, who commanded the military police brigade at Abu Ghraib, was demoted but not court-martialed. No civilian leaders—including those who authorized the interrogation techniques or created the legal framework justifying them—faced prosecution. President Bush commuted the sentence of Scooter Libby, Vice President Cheney’s chief of staff, who was convicted of perjury and obstruction of justice in a case related to the political fallout from the war.
The destruction of Fallujah in 2004 raised additional concerns. Two major assaults, Operation Vigilant Resolve in April and Operation Phantom Fury in November, devastated the city. The November operation involved approximately 10,000 US troops and resulted in the destruction of approximately 60% of buildings according to assessments by Iraqi officials and NGOs. The US military used white phosphorus munitions, which burn intensely and can cause severe injuries. While the US initially denied using white phosphorus as a weapon, military officials later acknowledged its use against enemy combatants. International legal experts debated whether this use violated Protocol III of the Convention on Certain Conventional Weapons, which restricts incendiary weapons use in civilian areas. Human Rights Watch, in a 2005 report, concluded the use raised concerns but was not definitively illegal, while critics argued the weapon’s indiscriminate effects in urban areas violated customary law.
The civilian toll in Fallujah remains disputed. Iraqi doctors reported treating numerous civilians with unusual injuries consistent with chemical burns. The Iraq Body Count documented at least 600 civilian deaths in November 2004, while Iraqi Red Crescent estimates ranged much higher. The city was declared a free-fire zone, with military-age males prevented from leaving before operations began—effectively treating all such persons as combatants regardless of their actual status. This raised serious questions about the principle of distinction. The UN Special Rapporteur on Extrajudicial Executions expressed concern in 2006 about “the unclear and seemingly discretionary definition of ‘enemy’ and the fact that in armed conflict, civilians may be killed unlawfully for reasons unconnected to any military necessity.”
The Haditha killings on November 19, 2005, revealed how stresses of counterinsurgency warfare led to atrocities against civilians. After a roadside bomb killed one Marine, members of Kilo Company went through nearby houses systematically killing 24 unarmed civilians, including women, children, and elderly. Time magazine broke the story in March 2006 based on video evidence and Iraqi testimonies. The victims included a 76-year-old amputee in a wheelchair, a four-year-old girl shot in the head at close range, and multiple family groups killed in their homes. Initial Marine reports claimed the civilians died from the roadside bomb or in crossfire with insurgents. Only after Iraqi human rights workers presented evidence to Time did the military investigate. Eight Marines were charged, but seven had charges dropped or were acquitted. Staff Sergeant Frank Wuterich, the squad leader, pleaded guilty to dereliction of duty and received a reduction in rank with no jail time. The disparity between the severity of the crimes and minimal punishment exemplifies the accountability gap.
The Mahmudiyah rape and killings on March 12, 2006, demonstrated how some soldiers engaged in utterly lawless conduct. Five soldiers from the 502nd Infantry Regiment planned and executed the rape of a 14-year-old Iraqi girl, Abeer Qassim Hamza al-Janabi, then murdered her and her family—her parents and six-year-old sister—and burned the bodies to conceal the crime. Private Steven Green, who had been discharged from the Army for “personality disorder” before the crime was discovered, was tried in civilian federal court and convicted of rape and murder, receiving five consecutive life sentences. He committed suicide in prison in 2014. Four other soldiers were convicted in military courts, receiving sentences ranging from five to 110 years. While these soldiers were held accountable, the case raised questions about military screening, unit discipline, and command climate that allowed such planning to occur without detection.
The Nisour Square massacre on September 16, 2007, involved private military contractors from Blackwater (later renamed Xe Services, then Academi). Blackwater guards opened fire in Baghdad’s Nisour Square, killing 17 Iraqi civilians and wounding 20 others. FBI investigation concluded the shootings were unjustified and unprovoked. Iraqi investigations found that all victims were civilians and that the convoy was not under attack. The incident exemplified problems with privatized military functions and accountability gaps. Initial military reports suggested the contractors acted in self-defense, but investigations revealed a pattern of excessive force by Blackwater personnel. A 2007 House Oversight Committee investigation found Blackwater contractors were involved in at least 195 shooting incidents since 2005, and in over 160 cases, Blackwater personnel fired first.
Four Blackwater guards—Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard—were eventually convicted in US federal court in 2014 and 2015. Slatten received life imprisonment for first-degree murder, while the others received 30-year sentences for voluntary manslaughter and attempted manslaughter. However, in December 2020, President Donald Trump pardoned all four, despite objections from Iraqi officials who called the pardons an insult to justice. The pardons exemplified how political intervention can nullify accountability even in rare cases where prosecution succeeds. The case also highlighted legal grey zones where contractors operated without clear accountability to military justice or Iraqi law, while US criminal jurisdiction proved difficult to apply effectively.
Afghanistan (2001-2021)
The twenty-year conflict in Afghanistan, America’s longest war, produced numerous documented civilian casualty incidents and patterns of conduct raising humanitarian law concerns. While the initial 2001 invasion had clearer international legal justification as a response to harboring Al-Qaeda after the 9/11 attacks, the conduct of operations and the continuation of occupation for two decades generated extensive human rights concerns.
The UN Assistance Mission in Afghanistan (UNAMA) has documented civilian casualties since 2007. From 2007 through 2020, UNAMA documented 111,000 civilian casualties (killed and wounded), with approximately 46,000 deaths. Of these, UNAMA attributed approximately 37% to pro-government forces including US, NATO, and Afghan government troops—roughly 17,000 civilian deaths. Anti-government forces caused the majority, approximately 63%. However, the US and allied forces’ share represents a substantial toll from forces claiming to protect civilians.
The pattern of civilian casualties from airstrikes proved particularly problematic. The Bureau of Investigative Journalism documented that US airstrikes killed between 4,050 and 10,000 people in Afghanistan through 2020, with civilians comprising 10-20% of deaths according to various estimates. The Obama administration’s expansion of drone and air operations from 2009 onward significantly increased civilian deaths. In 2019 alone, US and Afghan airstrikes killed more civilians than insurgent bombings for the first time, according to UNAMA data. The dramatic increase in airstrikes—from 2,926 in 2017 to 7,423 in 2019—corresponded with increased civilian casualties from aerial operations.
Wedding parties became particularly tragic sites of civilian deaths. In July 2002, a US AC-130 gunship struck a wedding party in Uruzgan province, killing approximately 48 civilians. Initial military statements claimed the gathering was a Taliban assembly, but investigations confirmed it was a wedding, with celebratory gunfire misidentified as hostile fire. In November 2008, another wedding party strike in Kandahar killed 37 civilians, including the bride. In November 2013, a drone strike on a wedding convoy in Hekmatkhel killed at least 15 civilians. These repeated incidents raised questions about intelligence gathering and strike authorization procedures that repeatedly failed to distinguish celebrations from military activities.
Night raids on civilian compounds became a major source of tension and civilian casualties. These operations, conducted by Joint Special Operations Command forces and CIA paramilitary teams, involved breaking into homes at night to capture or kill suspected insurgents. The Afghan government, through President Hamid Karzai, repeatedly demanded an end to night raids, calling them culturally offensive and often killing innocent civilians. Human Rights Watch, in a 2011 report “Just Don’t Call It a Militia,” documented cases where Special Operations forces killed civilians in their homes, sometimes planting weapons to justify the killings. One documented case involved US forces killing a pregnant woman, her husband, and three other relatives in Khataba village in February 2010, then digging bullets out of victims’ bodies to conceal responsibility. NATO initially claimed the victims were found dead before forces arrived, but Afghan investigations and media reports revealed Special Operations forces’ responsibility. Rear Admiral William McRaven, then commander of special operations in Afghanistan, personally apologized and offered a sheep in traditional Afghan reconciliation.
Detention and torture at Bagram Air Base paralleled Abu Ghraib’s abuses but received less public attention. Two Afghan detainees, Dilawar and Habibullah, died in US custody at Bagram in December 2002 after being subjected to severe beatings. A 2005 New York Times investigation by Tim Golden, based on a 2,000-page confidential Army file, revealed both men had been chained to the ceiling and beaten repeatedly. Dilawar, a taxi driver detained at a checkpoint, had his legs “pulpified” according to the military pathologist, who compared the injuries to being run over by a bus. The Army’s Criminal Investigation Command concluded both deaths were homicides. Interrogators had used “enhanced interrogation techniques” including stress positions, sleep deprivation, and beatings. Despite the homicide findings, accountability remained limited. Some soldiers received minor punishments; Captain Carolyn Wood, who supervised interrogators, received administrative reprimand but no criminal charges and later received a Bronze Star.
The Red Cross, in a 2011 report, found that detainees at US facilities in Afghanistan were subjected to treatment that “in some cases was tantamount to torture.” Former detainees described being kept in isolation for months, subjected to extreme cold, forced into stress positions, beaten, and deprived of sleep. Physician evaluations documented injuries consistent with abuse. The Obama administration acknowledged problems and claimed reforms, but reports of abuse continued throughout the conflict.
The Kunduz hospital bombing on October 3, 2015, represented perhaps the clearest violation of international humanitarian law in Afghanistan. A US AC-130 gunship struck a Médecins Sans Frontières (MSF) hospital in Kunduz for approximately one hour, firing 211 shells. The attack killed 42 people—14 staff members, 24 patients, and 4 caretakers—including children. Thirty-seven people were wounded, including 19 staff members. The attack destroyed the main hospital building and continued despite frantic phone calls from MSF staff to US and Afghan military officials informing them the facility under attack was a hospital.
MSF, which had provided the hospital’s precise GPS coordinates to all parties to the conflict and had a large MSF flag on the building’s roof, called the attack a war crime. International humanitarian law explicitly protects medical facilities, and attacking a clearly marked hospital constitutes a grave breach of the Geneva Conventions unless the facility is being used for military purposes—which investigations found was not the case. MSF international president Joanne Liu called for an independent investigation by the International Humanitarian Fact-Finding Commission, stating “this was not just an attack on our hospital—it was an attack on the Geneva Conventions.”
The US military investigation, released in November 2015, attributed the strike to human error, equipment failure, and failure to follow rules of engagement. The investigation found that the crew believed they were targeting a different building where Taliban fighters were located, despite the hospital being the only major illuminated building in the area and despite MCF’s repeated communications. Sixteen US personnel received administrative punishments including suspensions and letters of reprimand, but no one faced criminal charges. The lack of criminal accountability for what MSF and international legal experts characterized as a war crime exemplified the impunity structure. General John Campbell, commander of US forces in Afghanistan, apologized and announced the military would make condolence payments to casualties’ families and to MSF for facility reconstruction, but rejected calls for an independent international investigation.
The broader context of the Afghanistan war revealed mission drift and strategic confusion that contributed to civilian harm. The Afghanistan Papers, obtained by the Washington Post through FOIA requests and published in 2019, revealed that senior US officials consistently misled the public about the war’s progress while privately expressing doubts. John Sopko, the Special Inspector General for Afghanistan Reconstruction, conducted interviews with over 400 officials who acknowledged the mission lacked clear objectives and that metrics of progress were fabricated. Lieutenant General Douglas Lute, who oversaw the war for both Bush and Obama administrations, told interviewers: “We were devoid of a fundamental understanding of Afghanistan—we didn’t know what we were doing.” This strategic incoherence meant military operations continued causing civilian harm without clear justification or achievable objectives—raising questions about whether military necessity, a core principle limiting acceptable harm in warfare, could justify the ongoing operations.
Global Drone War (2002-Present)
The targeted killing program using unmanned aerial vehicles represents perhaps the clearest example of the United States creating a new paradigm of warfare with minimal international legal constraints or accountability. The Bureau of Investigative Journalism, which has comprehensively tracked drone strikes, documents that from 2002 through 2020, US drone strikes killed between 8,000 and 12,000 people across Pakistan, Yemen, Somalia, Libya, and other nations, with civilian casualties ranging from 800 to 1,750. These strikes occur in nations with which the United States is not formally at war, raising fundamental questions about when lethal force can be used and what legal framework governs such operations.
The program expanded dramatically under President Obama, who embraced drone warfare as a supposedly surgical alternative to large-scale military occupations. According to data compiled by the Council on Foreign Relations and the Bureau of Investigative Journalism, Obama authorized approximately 542 drone strikes during his eight years in office—far exceeding the 57 strikes conducted under President Bush. The Trump administration further expanded operations and, in 2019, revoked an Obama-era requirement to publicly report civilian deaths from drone strikes, reducing transparency.
The legal basis for these operations remains contested. The US government relies primarily on the 2001 Authorization for Use of Military Force (AUMF), passed by Congress after 9/11, which authorized force against those responsible for the attacks and associated forces. However, this authorization has been stretched to justify strikes against groups that did not exist in 2001, in countries far from Afghanistan, and against individuals with tenuous connections to the original authorization. Legal scholars including Yale Law Professor Bruce Ackerman and Harvard Law Professor Jack Goldsmith have argued this interpretation transforms an emergency authorization into a permanent, geographically unlimited license for lethal force—something Congress never intended to grant.
Pakistan became the primary locus of drone operations from 2004 through 2018, with 430 strikes documented by the Bureau of Investigative Journalism. These strikes killed between 2,500 and 4,000 people, with civilians comprising approximately 10-20% of deaths—between 250 and 900 civilians. The strikes violated Pakistan’s sovereignty; while some were conducted with tacit government approval, many occurred without consent or over explicit Pakistani objections. Former Pakistani Prime Minister Imran Khan called the strikes “a war crime” and stated they inflamed anti-American sentiment and aided militant recruitment.
The human impact extended beyond immediate casualties. Stanford Law School and NYU School of Law’s 2012 joint report “Living Under Drones” documented the program’s psychological toll in Pakistan’s tribal areas. Researchers interviewed witnesses, survivors, and medical professionals who described constant fear from the presence of drones overhead. The distinctive sound of Predator and Reaper drones caused anxiety and trauma. Children refused to attend school for fear of strikes. The practice of “double-tap” strikes—hitting a target, then striking again minutes later when rescuers arrived—terrorized communities and deterred people from providing humanitarian assistance. International legal experts including Professor Christof Heyns, UN Special Rapporteur on Extrajudicial Executions, stated in 2013 that if civilian rescuers are intentionally targeted, “those further attacks are a war crime.”
Yemen became an increasing focus of drone operations, particularly after 2009. The Bureau of Investigative Journalism documents between 336 and 414 strikes in Yemen from 2002 through 2020, killing between 1,500 and 2,400 people, with civilian deaths ranging from 200 to 350. Some strikes killed US citizens, raising constitutional questions. In September 2011, a US drone strike in Yemen killed Anwar al-Awlaki, a US-born cleric linked to Al-Qaeda who had been placed on a CIA/JSOC kill list. His 16-year-old son, Abdulrahman al-Awlaki, also a US citizen, was killed in a separate strike two weeks later. In January 2017, during a special operations raid in Yemen authorized by President Trump, eight-year-old Nawar al-Awlaki, Anwar’s daughter and Abdulrahman’s half-sister, was shot and killed.
The Awlaki killings raised profound constitutional questions. The Fifth Amendment guarantees that no person shall “be deprived of life, liberty, or property, without due process of law.” While the government argued Anwar al-Awlaki’s operational role in terrorism justified his killing, he was never indicted, never tried, and never provided opportunity to surrender. His father, Nasser al-Awlaki, filed suit seeking to prevent the killing, but federal courts dismissed the case, ruling they lacked authority to second-guess executive branch national security decisions. This created a situation where a US citizen could be placed on a kill list and executed by executive decision without judicial review. The Obama administration released legal memos after the killings arguing that due process could be satisfied by internal executive branch deliberations, but many constitutional scholars found this reasoning inadequate. The killing of Abdulrahman, whom even government officials acknowledged was not targeted but died in a strike aimed at someone else, received minimal explanation. Former White House Press Secretary Robert Gibbs, asked about Abdulrahman’s death, responded that he “should have [had] a far more responsible father”—suggesting family association justified death without trial.
The “signature strikes” policy raised additional concerns. Rather than targeting identified individuals based on intelligence about specific threats, signature strikes target individuals based on behavioral patterns deemed suspicious—groups of military-age males in areas known for militant activity, people loading vehicles with large packages, etc. This approach effectively eliminates the principle of distinction between combatants and civilians, instead creating a presumption that certain behaviors in certain areas indicate combatant status. Leaked classified documents published by The Intercept in 2015, based on materials provided by whistleblower Daniel Hale (who was later convicted under the Espionage Act and sentenced to 45 months in prison for the disclosure), revealed that during a five-month period in Afghanistan, nearly 90% of people killed in drone strikes were not the intended targets. The documents showed operations relied on signals intelligence like cellphone tracking, which could misidentify people or track phones passed between users.
The Obama administration’s definition of combatants further blurred distinctions. The New York Times revealed in 2012 that the administration counted “all military-age males in a strike zone as combatants” unless explicit posthumous intelligence proved they were civilians. This presumption of guilt based on gender and age in a geographic area violates fundamental principles of discrimination and proportionality in warfare. It allowed the administration to claim minimal civilian casualties while using definitions that made civilian deaths definitionally impossible.
Somalia and Libya have seen increasing drone operations with even less oversight or transparency. The Bureau of Investigative Journalism documents between 200 and 250 strikes in Somalia from 2007 through 2020, and between 500 and 550 strikes in Libya from 2011 through 2020, though exact numbers remain uncertain due to lack of reporting requirements. Amnesty International, in a 2019 report investigating five specific strikes in Somalia, found that contrary to US claims of precise targeting with no civilian harm, the strikes killed 14 civilians including a grandmother, three children, and several farmers. The organization concluded that some strikes violated international humanitarian law and may constitute war crimes, and that the US is “failing in its obligations to investigate alleged violations and provide compensation to victims.”
The structural accountability gap in drone operations is nearly absolute. Operations are conducted by CIA or Joint Special Operations Command under classified legal authorities. Congress receives only limited briefings. No independent oversight examines targeting decisions. Civilian casualties are not systematically investigated. When credible reports of civilian deaths emerge, military investigations typically conclude that strikes followed proper procedures and that casualties were either combatants or regrettable but lawful collateral damage. Families of victims have virtually no avenue for redress. US courts have consistently dismissed civil suits by civilian victims’ families, ruling that courts cannot review targeting decisions or that plaintiffs lack standing to sue.
Former drone operators have spoken publicly about the program’s ethical problems. Brandon Bryant, who operated drones from 2006 to 2011, told Der Spiegel in 2015 that he participated in missions that killed 1,626 people. He described watching a child walk into a building seconds before it was struck, then seeing the explosion through the drone camera. He and other former operators have described the disconnect of killing people on the other side of the world from an air-conditioned trailer in Nevada, then driving home to suburban families. Several former operators have sought treatment for PTSD and have become whistleblowers, testifying that the program kills far more civilians than officially acknowledged and that the psychological distance of remote warfare reduces inhibitions against lethal force.
International legal experts remain divided on whether targeted killings outside active war zones are ever legal, but consensus exists that current US practice lacks adequate legal foundation, discrimination in targeting, and accountability mechanisms. The UN Special Rapporteur on Counterterrorism and Human Rights, Ben Emmerson, stated in 2013 that the US drone program “involves the use of force on the territory of another State without its consent and is therefore a violation of Pakistan’s sovereignty.” Special Rapporteur on Extrajudicial Executions Christof Heyns warned that drone strikes risk creating a “PlayStation mentality to killing” and called for robust accountability mechanisms. Agnes Callamard, who succeeded Heyns, investigated the January 2020 US drone strike that killed Iranian General Qassem Soleimani in Iraq and concluded it violated international law, constituting an unlawful arbitrary killing.
The long-term strategic consequences appear counterproductive. Studies including research by Stanford and Oxford universities’ law schools found that drone strikes correlate with increased militant recruitment and anti-American sentiment. Former CIA station chiefs including Graham Fuller have argued the program creates more enemies than it eliminates. Yet the program continues expanding, with the Trump administration conducting strikes in more countries and the Biden administration maintaining the essential architecture despite promises of greater restraint.
Detention and Torture Program (2001-Present)
The post-9/11 detention and interrogation program represents one of the most extensively documented cases of systematic human rights violations by a democratic state in the 21st century. The program’s scope, systematic nature, and explicit authorization by senior officials distinguish it from isolated battlefield abuses. The Senate Intelligence Committee’s Study of the CIA’s Detention and Interrogation Program, completed in 2014 after reviewing over six million pages of CIA documents, provides unprecedented documentation of systematic torture. The CIA black sites constituted secret detention facilities operated in multiple countries where detainees were held incommunicado, completely disappeared from legal protection. The ACLU and Human Rights Watch documented that the CIA operated detention facilities in Thailand, Poland, Romania, Lithuania, Morocco, and Afghanistan, with additional collaboration from governments in Egypt, Syria, Jordan, and other nations. The Senate Intelligence Committee Report confirmed that the CIA operated at least eight black sites between 2002 and 2008, holding at least 119 detainees. The locations were classified, families were not notified of detentions, and no legal process existed for challenging detention. Under international law, this practice constitutes “enforced disappearance”—defined by the International Convention for the Protection of All Persons from Enforced Disappearance as arrest or detention by state agents followed by refusal to acknowledge the deprivation of liberty or concealment of the person’s fate or whereabouts, placing the person outside the protection of law.
The European Court of Human Rights issued landmark rulings on CIA black sites. In 2014, in Al Nashiri v. Poland, the court ruled that Poland violated the European Convention on Human Rights by hosting a CIA black site on its territory where Saudi national Abd al-Rahim al-Nashiri was tortured. The court found Poland complicit in violations including torture, inhuman treatment, and arbitrary detention. In a parallel case, Husayn (Abu Zubaydah) v. Poland, the court reached similar conclusions regarding another detainee. These rulings established that European states that facilitated CIA operations bore legal responsibility for the violations that occurred. Despite these findings, no Polish officials faced prosecution, and Poland paid only modest compensation to victims.
Extraordinary rendition involved transferring at least 136 individuals to countries known to practice torture, according to research by New York University’s Center for Human Rights and Global Justice and by the Open Society Justice Initiative. The program predated 9/11 but expanded dramatically afterward. Targets were seized, sometimes from countries with which the US was not at war, transported on CIA-chartered aircraft (which plane-spotters and journalists tracked through flight records), and delivered to foreign intelligence services in Egypt, Syria, Morocco, Jordan, and other countries with documented torture practices. The torture-by-proxy arrangement allowed the CIA to obtain information through methods that would be illegal if conducted directly by US personnel—though the Senate report documents that CIA officers were often present during foreign services’ interrogations and that the CIA explicitly sought assurances that torture would be used.
Maher Arar’s case illustrates the program’s injustice. Arar, a Canadian citizen born in Syria, was detained at JFK Airport in September 2002 during a connection on his flight home to Canada. Despite holding Canadian citizenship and having no criminal record, he was held for two weeks, questioned without access to a lawyer, then rendered to Syria where he was imprisoned for a year and tortured, including being beaten with electrical cables. Syrian interrogators focused on questions provided by the CIA about alleged terrorist connections. After a year, Syria released Arar without charges, acknowledging he had no terrorist links. The Canadian government launched an inquiry that concluded Arar had no terrorist connections and that Canadian intelligence had shared inaccurate information with US authorities. Canada paid Arar $10.5 million and issued a formal apology. The US government never apologized, never acknowledged wrongdoing, and refused to remove Arar from watchlists. When Arar sued in US courts, the case was dismissed on state secrets grounds—the government argued that allowing the case to proceed would reveal classified information.
Khaled El-Masri’s case further demonstrates the program’s recklessness. El-Masri, a German citizen of Lebanese descent, was detained by Macedonian authorities in December 2003, handed to CIA operatives, and rendered to Afghanistan where he was held at the “Salt Pit” black site for five months. He was beaten, interrogated, and held in squalid conditions. Eventually, the CIA realized he was not the person they sought—his name resembled that of a suspected terrorist, but he was entirely innocent. Rather than immediately releasing him, CIA officials debated for weeks what to do with him. Finally, in May 2004, he was dumped on a hilltop in Albania and told to walk down the road without looking back. When he returned to Germany and reported his ordeal, German prosecutors launched an investigation and issued arrest warrants for thirteen CIA officers involved. The US government refused to cooperate with the investigation or extradite the officers. El-Masri sued in US courts, but the case was dismissed on state secrets grounds. The European Court of Human Rights ruled in 2012 that Macedonia violated El-Masri’s rights and that his account was “established beyond reasonable doubt.” The enhanced interrogation techniques applied at black sites and at Guantánamo constituted torture under international law. The Senate Intelligence Committee’s 528-page executive summary (the full 6,700-page report remains classified) documented techniques including waterboarding, confinement in coffin-sized boxes for hours or days, sleep deprivation for up to 180 hours (7.5 days), stress positions, painful shackling, threats to harm family members including threats to sexually abuse mothers, rectal feeding and rectal rehydration causing physical harm, and prolonged nudity in cold conditions. Abu Zubaydah was waterboarded 83 times in one month; Khalid Sheikh Mohammed was waterboarded 183 times. The Senate report concluded these methods constituted torture and that they produced no unique intelligence that could not have been obtained through lawful interrogation methods—contradicting CIA claims that enhanced interrogation was necessary and effective.
Medical professionals’ involvement in the torture program violated medical ethics. The International Committee of the Red Cross, Physicians for Human Rights, and the Institute on Medicine as a Profession documented that CIA medical personnel monitored interrogations to ensure detainees did not die but did not intervene to prevent torture. They provided medical expertise to make torture more effective, for instance advising on how long detainees could withstand particular techniques. Psychologists James Mitchell and Bruce Jessen designed the CIA’s interrogation program, earning $81 million in contracts. Neither had experience in interrogation or counterterrorism; their expertise was in training US military personnel to resist torture if captured—experience they reverse-engineered to break detainees. The American Psychological Association faced internal crisis when reporting revealed APA officials had secretly collaborated with the Bush administration to align ethics guidelines with interrogation program needs, facilitating psychologists’ participation in abusive interrogations. An independent investigation by attorney David Hoffman, commissioned by APA, confirmed these collaborations and led to reforms and apologies. Guantánamo Bay detention facility opened in January 2002 at the US naval base in Cuba, chosen specifically for its ambiguous legal status. The Bush administration argued that because the facility was on Cuban territory (under a lease dating to 1903), detainees there could not access US courts through habeas corpus. Approximately 780 detainees have been held at Guantánamo over its history; as of 2024, approximately 30 remain. Many have been held for over twenty years without trial. The facility was designed to avoid legal constraints: not on US soil for constitutional purposes, yet under complete US control. Vice President Cheney described it as being “in the hands of the military,” suggesting military rather than civilian law would apply, while Secretary of Defense Rumsfeld insisted the Geneva Conventions did not apply to these “unlawful enemy combatants”—a category that does not exist in international humanitarian law.
The Supreme Court gradually extended legal protections to Guantánamo detainees through several landmark cases. In Rasul v. Bush (2004), the Court ruled 6-3 that detainees could petition federal courts for habeas corpus review. In Hamdan v. Rumsfeld (2006), the Court ruled 5-3 that military commissions established to try detainees violated both the Uniform Code of Military Justice and the Geneva Conventions, and specifically held that Common Article 3 of the Geneva Conventions applied to all detainees. In Boumediene v. Bush (2008), the Court ruled 5-4 that detainees had constitutional habeas corpus rights and that the Military Commissions Act of 2006’s attempt to strip courts of jurisdiction was unconstitutional. Justice Kennedy’s majority opinion stated: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Despite these rulings, meaningful judicial review remained elusive. The burden of proof was placed on detainees to prove they should not be detained—a near-impossible task when evidence was classified and detainees had limited access to attorneys. Much evidence was obtained through torture, rendering it unreliable. Attorney-client communications were monitored. When federal courts ordered releases, the executive branch often found reasons to continue detention. President Obama signed an executive order on his second day in office to close Guantánamo within a year, but Congress passed legislation prohibiting transfer of detainees to the US for trial or detention, effectively preventing closure. The facility remains open, a symbol of indefinite detention without trial.
The military commission system created to try Guantánamo detainees has proven dysfunctional. Originally established by presidential military order in 2001, commissions were reconstituted after the Hamdan ruling struck down the initial version, then reconstituted again after additional court challenges. As of 2024, after twenty-two years of operations, military commissions have convicted only eight detainees. The September 11 conspirators, including Khalid Sheikh Mohammed, have been in pretrial proceedings since 2008—fifteen years without trial. Defense attorneys argue that torture of defendants renders evidence inadmissible and prevents fair trials. The entire process has become a cautionary tale about efforts to create parallel justice systems with fewer rights protections. Numerous detainees were released after years in detention with neither trial nor compensation. Of the 780 held at Guantánamo, approximately 420 were released by the Bush administration, 200 by Obama, and 30 by Trump. The majority were released without ever being charged. Many were victims of bounty programs where US forces paid rewards for captured “terrorists,” incentivizing false accusations. A 2006 Seton Hall Law School study analyzing military data found that 86% of detainees were captured not by US forces but by Pakistan or Northern Alliance forces at a time when rewards of $5,000 per person were offered—substantial sums in these regions. Only 5% were captured by US forces, and only 8% were characterized by the military as Al-Qaeda fighters. Yet hundreds spent years imprisoned based on this flimsy evidence.
The International Committee of the Red Cross, the only organization granted regular access to CIA and military detention facilities, concluded in confidential reports leaked to the press that treatment of detainees “constituted torture” and was “tantamount to torture.” The UN Committee Against Torture, the UN Human Rights Committee, the Council of Europe’s human rights commissioner, and numerous international human rights organizations reached similar conclusions. UN Special Rapporteur on Torture Manfred Nowak stated in 2006 that the US should close Guantánamo, which he characterized as a “black hole” where detainees were denied fundamental human rights. His successor, Juan Méndez, was denied access to meet privately with detainees, leading him to publicly criticize the lack of transparency and to state that solitary confinement as practiced at Guantánamo could constitute torture. Yet no senior officials have been prosecuted for designing, authorizing, or implementing the torture program. The architects of the program—Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, CIA Director George Tenet, Attorney General John Ashcroft, Justice Department lawyers John Yoo and Jay Bybee (who wrote memos redefining torture to authorize techniques), White House Counsel Alberto Gonzales, and numerous others—faced no criminal accountability. The Obama administration explicitly decided not to prosecute anyone for torture, with President Obama stating he wanted to “look forward, not backward.” Attorney General Eric Holder appointed prosecutor John Durham to investigate interrogation abuses, but after three years, Durham recommended prosecuting only in two cases where detainees died—and even those cases were eventually closed without charges.
The impunity extended to civil liability. The Torture Victim Protection Act and Alien Tort Statute theoretically allow victims to sue torturers in US courts, but cases were dismissed on state secrets grounds, qualified immunity, or sovereign immunity. When torture architects Mitchell and Jessen were sued by former detainees Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of Gul Rahman (who died from hypothermia at the CIA “Salt Pit” facility in Afghanistan after being left chained to a wall in freezing conditions), the CIA intervened to block discovery, claiming state secrets. The ACLU, representing the plaintiffs, battled for years before Mitchell and Jessen agreed to settle in 2017 for undisclosed terms, likely paid by their CIA contractor insurance. The settlement allowed them to avoid trial without admitting wrongdoing.
The torture memos exemplify how lawyers provided legal cover for illegal conduct. Justice Department lawyers, particularly John Yoo in the Office of Legal Counsel, produced memoranda arguing that torture required intent to inflict pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Under this definition, virtually anything short of causing imminent death would not constitute torture. The memos argued the President’s commander-in-chief authority could not be constrained by international treaties or domestic law prohibiting torture. These legal opinions, despite being widely condemned by international legal experts and subsequently repudiated by the Office of Legal Counsel itself, provided a veneer of legality that protected those who implemented torture from prosecution. Jay Bybee, who signed the torture memos as head of OLC, was later confirmed as a federal appellate court judge—a lifetime appointment he continues to hold despite calls for his impeachment.
The Convention Against Torture, ratified by the United States in 1994, creates an absolute prohibition on torture with no exceptions for national security emergencies. Article 2 states: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Article 4 requires states parties to ensure that “all acts of torture are offences under its criminal law.” Article 12 requires states to undertake prompt and impartial investigation wherever there is reasonable ground to believe torture has been committed. Article 14 requires states to ensure victims of torture obtain redress and compensation. The United States has violated all these treaty obligations. The UN Committee Against Torture, in its 2014 Concluding Observations on the United States’ compliance with the Convention, called for prosecution of torture, closure of Guantánamo, compensation to victims, and repudiation of legal opinions claiming torture could be legal. The US government has not complied with these recommendations.
Patterns of War Crimes and Crimes Against Humanity Across Cases
Analysis of the cases documented above reveals consistent patterns that transcend individual incidents or particular administrations. These patterns suggest structural rather than aberrational causes of violations and impunity. First, there is consistent disproportionate harm to civilian populations in military operations. From the atomic bombings through Korea, Vietnam, and into contemporary conflicts in Iraq, Afghanistan, and the drone war, civilian casualties constitute a substantial proportion of total deaths. While international humanitarian law accepts that some civilian deaths may occur as proportional collateral damage to legitimate military objectives, the scale and systematicness of civilian harm across decades suggests inadequate application of the principles of distinction, proportionality, and precaution. The pattern includes not merely incidental civilian deaths during attacks on military targets, but deliberate targeting of civilian infrastructure (water systems in Iraq, agricultural systems in Korea), use of weapons with indiscriminate effects in civilian areas (carpet bombing, napalm, white phosphorus), and adoption of policies that effectively eliminate protections for civilians in designated areas (free-fire zones in Vietnam, military-age male presumption in drone war).
Second, attacks on civilian infrastructure recur across conflicts. The deliberate destruction of water treatment in Iraq in 1991 echoed the destruction of dams in Korea in 1953. The targeting of electrical grids, hospitals, schools, and agricultural systems appears designed not merely to degrade military capacity but to create suffering among civilian populations to pressure governments. International humanitarian law prohibits attacks on “objects indispensable to the survival of the civilian population” under Additional Protocol I, Article 54, and customary international humanitarian law contains similar prohibitions. While the United States has not ratified Additional Protocol I, the principles reflect customary law applicable to all states. The repeated targeting of such infrastructure across different conflicts and administrations suggests this is considered an acceptable strategic tool rather than a prohibited method of warfare.
Third, the use of prohibited weapons or weapons with indiscriminate effects continues despite international prohibitions. Chemical weapons in Vietnam, white phosphorus in Fallujah, depleted uranium munitions in Iraq and Afghanistan (which leave radioactive residue), and cluster munitions (which leave unexploded submunitions that kill civilians long after conflicts end) have all been employed despite international efforts to prohibit or restrict these weapons. While the United States is not party to the Chemical Weapons Convention’s prohibition on herbicides or to the Convention on Cluster Munitions, the employment of these weapons demonstrates a pattern of resisting international norms that would constrain military options. The humanitarian impact—birth defects from Agent Orange decades after use, Iraqi children killed by unexploded cluster bomblets, potential long-term health effects from depleted uranium exposure—continues long after the conflicts end.
Fourth, systematic torture and cruel treatment of detainees represents a pattern rather than isolated abuses by rogue actors. The torture program was authorized at the highest levels of government, involved CIA, military intelligence, and private contractors, operated across multiple geographic locations, and continued for years despite clear violations of domestic and international law. The parallels between abuse at Guantánamo, Bagram, Abu Ghraib, and CIA black sites—stress positions, sleep deprivation, sexual humiliation, temperature extremes—demonstrate systematic rather than spontaneous conduct. The involvement of medical and psychological professionals to refine techniques shows institutional coordination. Most significantly, the nearly complete absence of accountability for senior officials who authorized the program demonstrates that the impunity was structural, not incidental.
Fifth, attacks on medical facilities and personnel violate one of the most fundamental protections in international humanitarian law. The Kunduz hospital bombing in Afghanistan in 2015 echoed earlier patterns including the destruction of medical facilities in Iraq and Vietnam. The Geneva Conventions explicitly protect medical facilities, medical personnel, and medical transports, requiring that they never be attacked and must be respected and protected in all circumstances. Attacking a clearly marked hospital constitutes a grave breach of the Conventions—a war crime under international law. The fact that even this clear violation resulted in only administrative punishments demonstrates how far accountability gaps extend.
Sixth, assassination programs outside formal armed conflict zones represent an expansion of claimed authority to use lethal force that lacks foundation in international law. The global drone war operates on the premise that the entire world is a battlefield where the United States may target individuals it deems threats. This “worldwide battlefield” concept finds no support in international humanitarian law, which requires that armed conflicts have geographic and temporal boundaries. Outside those boundaries, international human rights law governs—and lethal force is permissible only in circumstances of imminent threat when no alternative exists. The targeted killing program, particularly signature strikes that target behavioral patterns rather than identified threats, operates outside both frameworks.
Seventh, support for proxy forces committing atrocities creates indirect responsibility that has never been adequately addressed. From support for military dictatorships in Latin America committing genocide and systematic disappearances, to support for mujahideen groups in Afghanistan some of which later became enemies, to support for Iraqi and Syrian forces committing abuses, the pattern of supporting, training, and arming forces that commit violations while maintaining official distance from their actions creates a accountability gap. International criminal law’s concepts of aiding and abetting, command responsibility, and complicity in crimes would, if applied to state actors as they are to individuals, establish responsibility for those who knowingly provided substantial assistance to forces committing violations. Yet this legal doctrine has never been applied to hold US officials responsible for violations by supported forces. These seven patterns—disproportionate civilian casualties, infrastructure targeting, prohibited weapons, systematic torture, attacks on medical facilities, global assassination campaigns, and proxy force atrocities—constitute a syndrome of conduct inconsistent with international humanitarian and human rights law. The fact that these patterns persist across different wars, different administrations, and different decades suggests they result from institutional culture, strategic doctrines, and structural impunity rather than from individual decisions by rogue actors. They represent, in effect, a US approach to warfare and security that systematically prioritizes operational flexibility and military effectiveness over compliance with legal constraints designed to protect civilians and preserve human dignity in armed conflict.
Mechanisms of Impunity: How Accountability is Avoided. Non-Participation in International Courts
The patterns documented above might face accountability through international criminal tribunals, domestic criminal prosecutions, or civil liability. Instead, an architecture of impunity prevents nearly all accountability. This section examines the specific mechanisms—legal, political, and institutional—that shield violations from consequence. The most fundamental mechanism of impunity is refusing to participate in international judicial institutions with authority to hold states and individuals accountable for violations of international law. The United States has systematically avoided or undermined international accountability mechanisms while demanding other nations submit to them—exemplifying the double standard at the heart of structural impunity.
International Criminal Court
The International Criminal Court, established by the Rome Statute in 2002, represents the international community’s most comprehensive attempt to end impunity for genocide, crimes against humanity, war crimes, and aggression. The court has jurisdiction over these crimes when committed on the territory of a state party or by nationals of a state party, or when the UN Security Council refers a situation. As of 2024, 123 states are parties to the Rome Statute. The United States is not among them and has actively worked to undermine the court’s authority.
President Bill Clinton signed the Rome Statute on December 31, 2000, in the final days of his presidency, but indicated he would not submit it to the Senate for ratification due to concerns about jurisdiction over US personnel. President George W. Bush took the extraordinary step of “unsigning” the treaty in May 2002, formally notifying the UN that the United States did not intend to become a party and no longer considered itself bound by even the limited obligations of signatories. This was only the third time a US administration had unsigned a treaty in American history. More significantly, the Bush administration enacted the American Service-Members’ Protection Act of 2002 (ASPA), colloquially known as “The Hague Invasion Act.” This legislation, codified at 22 U.S.C. § 7421-7433, authorizes the President to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The phrase “all means necessary” has been interpreted to include military force—hence the nickname suggesting the US would invade The Hague to free Americans facing ICC prosecution. The Act further prohibits US cooperation with the ICC, prohibits providing military aid to ICC parties unless they sign bilateral immunity agreements exempting Americans from surrender to the ICC, and protects US personnel from being surrendered to the court.
The bilateral immunity agreements, known as Article 98 agreements after the Rome Statute provision the US claimed justified them, were aggressively negotiated with countries worldwide. The State Department threatened to cut military assistance to countries that refused to sign. By 2006, over 100 countries had signed such agreements, though some later renounced them. These agreements typically provide that the signing country will not surrender US nationals to the ICC without US consent—effectively creating immunity for Americans regardless of crimes committed. The pressure campaign created resentment, particularly in Latin America and among European allies, but successfully created legal barriers to ICC jurisdiction over Americans.
The Obama administration softened the hostility somewhat, participating in ICC meetings as an observer and not actively opposing ICC work, but did not seek to join the court or repeal the ASPA. The Trump administration returned to active hostility. In September 2018, National Security Advisor John Bolton delivered a speech declaring that the ICC is “illegitimate” and “for all intents and purposes, the ICC is already dead.” Bolton announced that if the ICC pursued investigations of Americans or Israeli nationals, the US would ban ICC judges and prosecutors from entering the United States, sanction their funds in the US financial system, and prosecute them in US courts. This was not an idle threat. In March 2020, the Trump administration imposed sanctions on ICC Prosecutor Fatou Bensouda and the court’s Head of Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko, in retaliation for the ICC’s investigation into alleged war crimes in Afghanistan, including potential crimes by US personnel. These sanctions, issued under Executive Order 13928, froze any US assets and criminalized any transactions with the sanctioned individuals. This marked an unprecedented attack on an international judicial institution by a permanent Security Council member. The American Bar Association, the International Bar Association, and numerous international law scholars condemned the sanctions as undermining international rule of law.
The ICC investigation into Afghanistan examined potential war crimes by Taliban, Afghan government forces, and US forces. Preliminary examination began in 2007, and in November 2017, Prosecutor Bensouda formally requested authorization to open a full investigation. In April 2019, the ICC’s Pre-Trial Chamber denied this request, citing concerns about state cooperation—a decision widely understood as reflecting political pressure. In March 2020, however, the Appeals Chamber reversed this decision and authorized the investigation. The Trump administration responded with the sanctions described above. The Biden administration lifted the sanctions in April 2021 but maintained opposition to the investigation and did not support the court. In October 2023, the ICC’s new prosecutor, Karim Khan, announced he was deprioritizing investigations of US personnel to focus on Taliban and ISIS crimes—a decision that effectively ended the prospect of accountability for US actions.
The ICC’s treatment illustrates how hegemonic power can constrain international justice. The court was designed to end impunity for the world’s most serious crimes. But when faced with investigating the world’s most powerful military, the court retreated. Economic sanctions, visa bans, threats of force, and political pressure proved sufficient to prevent accountability. The message to other states was clear: the ICC will hold accountable the weak but not the powerful.
International Court of Justice
The International Court of Justice, the UN’s principal judicial organ, settles disputes between states and issues advisory opinions on legal questions. Unlike the ICC, which prosecutes individuals, the ICJ addresses state responsibility. The United States accepted the ICJ’s compulsory jurisdiction in 1946, meaning it agreed the court could hear cases brought against it by other states. However, this acceptance was always qualified, and the US withdrew from compulsory jurisdiction entirely in 1986 after receiving an unfavorable judgment. The Nicaragua case, mentioned earlier, represented the most significant ICJ ruling against the United States. Nicaragua sued the US in 1984 over military and paramilitary activities including mining harbors, attacking ports and oil installations, and supporting Contra forces. The US initially argued the court lacked jurisdiction, claiming the case involved collective self-defense matters outside the court’s purview. When the ICJ ruled it did have jurisdiction, the US announced it would not participate in further proceedings and would not be bound by any judgment.
In 1986, the ICJ ruled against the United States on virtually every point. The court found that mining Nicaragua’s harbors violated customary international law, that US attacks on Nicaraguan territory violated sovereignty and the prohibition on use of force, that supporting Contra forces violated principles of non-intervention, and that producing a manual encouraging assassinations violated humanitarian law. The court ordered the US to cease illegal conduct and pay reparations to Nicaragua. The vote was 12-3, with even most US allies voting against the United States.
The US response demonstrated how powerful states can simply ignore unfavorable legal judgments. The Reagan administration declared it would not comply with the judgment. When Nicaragua sought UN Security Council enforcement, the US vetoed the resolution. The General Assembly then passed a non-binding resolution calling on all states to respect international law and the ICJ decision, which passed 94-3 with only the US, Israel, and El Salvador voting against. Nicaragua was never compensated. Shortly after the ruling, the US formally withdrew from the ICJ’s compulsory jurisdiction, announcing it would only accept jurisdiction on a case-by-case basis. This withdrawal meant the US could no longer be sued without its consent—effectively placing itself above the court’s authority. Subsequent ICJ cases involving the United States have been limited to those where the US consented to jurisdiction. In LaGrand (2001) and Avena (2004), the ICJ ruled that the US violated the Vienna Convention on Consular Relations by failing to inform arrested foreign nationals of their right to contact their consulates. These rulings should have been straightforward to comply with—simply ensuring arrested foreigners are informed of their rights. Yet even these modest rulings faced resistance. When the ICJ ordered the US to review death sentences of Mexican nationals who had not been informed of consular rights, President Bush directed states to comply, but the Supreme Court ruled in Medellín v. Texas (2008) that ICJ rulings are not automatically enforceable in US courts without implementing legislation. Congress never passed such legislation. Texas executed José Ernesto Medellín despite the ICJ ruling his trial violated international law. The message was clear: even when the US consents to ICJ jurisdiction and loses, compliance remains optional.
The ICJ has also issued advisory opinions touching on US conduct. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the court found that use of nuclear weapons would generally violate international humanitarian law principles, though it could not conclude whether use would be lawful in extreme circumstances of state survival. The US, a major nuclear power, has never accepted that its nuclear arsenal faces legal constraints. Similarly, the ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which found Israel’s separation barrier violated international law, was opposed by the US, which argued the court should not have issued the opinion and that it would not affect US policy supporting Israel. The pattern is consistent: the United States demands other nations respect international adjudication, submits to such adjudication only when confident of victory or when stakes are low, and rejects authority of international courts to issue binding judgments against US interests. This stance fundamentally undermines international rule of law. If law applies only when convenient to the powerful, it ceases to function as law and becomes merely an expression of power relations. Yet this is precisely how the US has approached international justice.
Avoiding International Courts
Beyond avoiding international courts, the United States has developed an extensive architecture of domestic legal doctrines and statutes that shield government officials and military personnel from accountability for violations of international law and constitutional rights. These doctrines create de jure impunity—formal legal barriers to prosecution and civil liability. The doctrine of qualified immunity protects government officials from civil liability for violating constitutional rights unless the rights violated were “clearly established” at the time of the violation. Developed by the Supreme Court in a series of decisions beginning with Pierson v. Ray (1967) and expanded substantially in Harlow v. Fitzgerald (1982), the doctrine requires plaintiffs suing government officials to show not only that their rights were violated, but that the specific factual circumstances of the violation were so clearly prohibited by existing case law that any reasonable official would have known the conduct was unlawful.This creates a nearly insurmountable hurdle. Officials can escape liability by arguing that while their conduct might have been wrong, no prior case with sufficiently similar facts had established it was unconstitutional. This “clearly established” standard requires such factual specificity that even obviously unlawful conduct can escape liability if the specific scenario hasn’t been previously litigated. The doctrine particularly shields federal officials involved in national security operations. Courts have dismissed cases against officials involved in extraordinary rendition, torture, warrantless surveillance, and targeted killings, ruling that qualified immunity prevents liability.
In Ashcroft v. Iqbal (2009), the Supreme Court extended qualified immunity to former Attorney General John Ashcroft and FBI Director Robert Mueller for policies that resulted in unconstitutional detention of Muslim men after 9/11. Javaid Iqbal, a Pakistani Muslim arrested in New York, alleged he was subjected to harsh conditions and abuse because of his religion and ethnicity based on policies created by Ashcroft and Mueller. The Court ruled 5-4 that even if Ashcroft and Mueller knew their policies would result in discrimination, they were entitled to qualified immunity because they had discretion in counterterrorism policy. Justice Souter, dissenting, argued the ruling created immunity for policymakers who design discriminatory systems, insulating them from accountability even for intentional constitutional violations.
The doctrine has been widely criticized by legal scholars across the political spectrum and by judges including Supreme Court Justices Sotomayor and Thomas. The doctrine appears nowhere in the text of Section 1983, the federal civil rights statute. Instead, it was created by judicial interpretation expanding far beyond the common law privileges available when Section 1983 was enacted in 1871. Justice Sotomayor, dissenting in Kisela v. Hughes (2018), wrote that the Court’s qualified immunity jurisprudence creates a “one-sided approach to qualified immunity [that] transforms the doctrine into an absolute shield for law enforcement officers.” Yet the doctrine continues expanding, and efforts in Congress to limit or abolish it have failed.
In the context of international law violations, qualified immunity creates particular problems. International human rights law requires that victims have effective remedies for violations—including the ability to sue perpetrators for compensation. The European Court of Human Rights and Inter-American Court of Human Rights have ruled that immunity laws preventing victims from obtaining remedies violate human rights obligations. Yet the US qualified immunity doctrine does precisely this, creating a legal black hole where rights exist but cannot be enforced through civil suits.
State Secrets Opacity
The state secrets privilege allows the government to prevent disclosure of information in litigation if revealing the information would harm national security. While the privilege has historic roots, it was dramatically expanded after 9/11 and has become perhaps the most effective tool for blocking civil suits challenging torture, rendition, warrantless surveillance, and targeted killing. When the government asserts the privilege, courts must determine whether the information is truly secret and whether its disclosure would harm national security. If the court accepts the privilege claim, the information cannot be used in the case—and if the information is central to proving the claim, the entire case must be dismissed. The modern privilege traces to United States v. Reynolds (1953), where the Supreme Court recognized that courts should not compel disclosure of military secrets. However, the privilege was narrow, requiring the government to show that the specific information would reveal military secrets and that no alternative sources existed. After 9/11, the privilege was asserted more broadly and more frequently. Under the Bush administration, state secrets claims increased by 300% compared to previous decades. Rather than protecting specific secret information, the privilege was asserted to prevent any judicial scrutiny of entire programs, arguing that the existence of the programs themselves was secret.
In El-Masri v. Tenet (2007), Khaled El-Masri’s lawsuit against CIA officials for his kidnapping and torture was dismissed entirely on state secrets grounds. The Fourth Circuit Court of Appeals held that litigating El-Masri’s claims would risk exposing intelligence sources and methods, so the entire case had to be dismissed. This created the absurdity that El-Masri’s rendition was acknowledged by German prosecutors, reported extensively in media, confirmed by European investigations, but US courts held it was too secret to even examine in court. The dissenting judge noted that “El-Masri has alleged facts, which if true, constitute gross violations of the norms of international law… To deny him a remedy under such circumstances is to convert the state secrets doctrine into a means of immunizing official wrongdoing.”
In Mohamed v. Jeppesen Dataplan (2010), five men who had been rendered to countries where they were tortured sued the company that operated CIA aircraft used in their rendition. The Ninth Circuit dismissed the case 6-5 based on state secrets, holding that even though much about the rendition program was publicly known, allowing the case to proceed risked revealing additional classified details. Judge Stephen Reinhardt, dissenting, wrote: “To declare a case ‘dismissed’ because it might embarrass the Executive is to cede authority to the very branch charged with the commission of the alleged misconduct… Thus, the dismissal of a case with such serious allegations under the banner of the state secrets privilege amounts to nothing less than willful judicial blindness to human rights abuses.
These dismissals created a perfect circle of impunity: the government classifies its illegal conduct, then argues that any lawsuit challenging the conduct must be dismissed because proceeding would reveal classified information. Victims are left without remedy, perpetrators face no accountability, and courts are prevented from reviewing government lawlessness. This directly violates international human rights law’s requirement that victims have effective remedies and that torture and other serious violations be investigated and prosecuted. Yet it has become routine in cases involving intelligence operations. The Obama administration initially indicated it would reform state secrets privilege use, issuing new procedural guidelines in 2009. But these were procedural changes in how the privilege would be asserted internally, not substantive limits on when it could be used. The administration continued asserting the privilege to block torture and surveillance cases. In al-Aulaqi v. Obama (2010), when Anwar al-Awlaki’s father sued to prevent the targeted killing of his son, the government successfully had the case dismissed on state secrets and political question grounds. Similarly, in ACLU v. Clapper, cases challenging mass NSA surveillance programs based on Edward Snowden’s revelations were eventually dismissed largely on standing and state secrets grounds, despite public acknowledgment that the programs existed.
International Court of Justice & Legal Bodies
ICJ Decisions Database – International Court of Justice Judgments and Orders
International Criminal Court – ICC Case Library
UN International Law Commission – Reports and Documents
United Nations & Official Reports
UN Human Rights Council – Document Search Portal
UN Office of the High Commissioner for Human Rights – Country Reports
US Senate Intelligence Committee – Report on Torture (2014)
Human Rights Organizations
Human Rights Watch – Reports by Country
Amnesty International – Annual Reports
ACLU – National Security & Human Rights
International Committee of the Red Cross – International Humanitarian Law Database
Academic & Medical Research
The Lancet – Global Health & Conflict Studies
New England Journal of Medicine – Articles on War Medicine
JSTOR – International Criminal Law Collections
Cambridge University Press – Journal of International Criminal Justice – Archive
Archives & Primary Documents
National Security Archive (GWU) – Declassified Documents
UN Audiovisual Library – Historical Documents
Truth Commission Digital Archive – University of California
U.S. National Archives – Declassified Collections
Legal Scholarship & Databases
Oxford Public International Law – Max Planck Encyclopedia
International Criminal Law Research Guide – NYU Law Library
HeinOnline – International Humanitarian Law Library
Statistical & Data Resources
Uppsala Conflict Data Program – Battle-Related Deaths Dataset
World Bank – Development and Conflict Data
Armed Conflict Location & Event Data Project – ACLED Data
UN Human Rights Council Report on Gaza (2021) – A/HRC/48/CRP.4
ICJ Advisory Opinion on the Wall (2004) – Full Text
Guantanamo Bay Docket – NYTimes Database
“This research was conducted independently. The analysis represents scholarly examination of documented events through the lens of international law and human rights frameworks.“