Earlier today, the secretary of Defense, the secretary of State and the attorney general stood together to condemn the International Criminal Court (ICC) and to announce that the Trump administration was imposing sanctions on certain officials of the ICC. In this unprecedented move against international civil servants, the administration is seeking to punish the Court for launching an investigation into crimes possibly committed by American military and intelligence personnel in Afghanistan. Since Afghanistan is an ICC state-party (member nation), the Court has jurisdiction over crimes committed on its territory and can exercise this jurisdiction if domestic authorities – in this case, Afghanistan and the United States – have failed to adequately investigate and/or prosecute crimes committed there by their troops or intelligence officers. The ICC contends that the U.S. government has made no meaningful effort to hold accountable its personnel who were involved in alleged acts of torture and other war crimes.
While the ICC prosecutor had been engaged in a preliminary inquiry into these alleged crimes for several years, the issue came to a head when the prosecutor recently sought, and subsequently received, approval from a panel of ICC judges to launch a formal investigation against U.S. personnel. The Trump administration maintains that the Court has no jurisdiction in this matter – as far as it relates to U.S. citizens – since the U.S. is not a signatory to the ICC treaty. For daring to assert the ICC’s jurisdiction, the administration has singled out individual lawyers who are involved in the Afghanistan investigation and has now authorized the imposition of sanctions on them, and has even gone so far as to place visa restrictions on their family members. Let’s be clear, these are not rogue actors working for a criminal organization, the types of individuals normally subject to U.S. government sanctions. These legal professionals work for an institution that is supported by virtually all of our allies – countries like the United Kingdom, Canada, France, Germany, Australia and Japan – and that is staffed by judges, prosecutors and investigators from those countries and from many of the other 123 states-parties.
In fact, the United States stands virtually alone among liberal democracies in its rejection of the ICC. Nevertheless, in the 10 years prior to President Trump taking office, the United States had come to see the ICC as a useful institution and one that was worthy of U.S. support, despite our differences with the Court. From strong opposition to the ICC in the first term of the Bush administration, to a degree of cooperation and tacit support in the second term, the U.S. relationship with the ICC was strengthened much more significantly under the Obama administration. Over this time, the U.S. began to see the ICC as an important pillar in the framework of international justice, evidenced by U.S. support for U.N. Security Council referrals to the Court of cases in Darfur, Libya and Syria. In short, the U.S. came to recognize that the ICC was the best, and often times the only, option for pursuing accountability for some of the most horrendous atrocity crimes imaginable.
This positive and pragmatic policy evolution effectively came to end when President Trump took office, but the administration’s action today took things a step further and put us squarely at odds with all of our traditional allies with whom we have long shared a common interest in promoting human rights, rule of law and accountability. While the U.S. government may have legitimate arguments to make regarding the Court’s jurisdiction or the efficacy of U.S. domestic accountability efforts, the appropriate way to address those issues is through legal and diplomatic engagement. Instead, the administration has chosen a course of bluster and threats that would be almost laughable were it not so damaging to our own national interests and standing in the world. In his Executive Order, the president went so far as to describe the ICC Afghanistan investigation as “an unusual and extraordinary threat to the national security … of the United States” and to say that it justified him declaring “a national emergency to deal with that threat.” A national emergency? It is a characterization that is hard to reconcile with a nation that embraces rule of law, but perhaps that disconnect is the true national emergency.
DISCLAIMER: McCain Institute for International Leadership is a non-partisan "do-tank" that is part of Arizona State University. The views expressed in this blog are solely those of the author and do not represent an opinion of the McCain Institute.