In June 2020, President Donald J. Trump issued Executive Order (E.O.) 13928 enabling—but not yet imposing—sanctions against “officials, employees, and agents, as well as their immediate family members” working at the International Criminal Court (ICC), including potentially its judges. The move sparked an outburst of criticism from diplomats, jurists, and members of civil society across the United States and the international community. At the moment, it is not clear whether anyone associated with the Court has actually been sanctioned (while any financial sanctions will be public, some travel bans may not be), but there are rumors afoot that this “naked E.O.” may be dressed soon.
In light of this worrisome prospect, this article gathers key global reactions to the E.O. In so doing, it will identify the most compelling arguments raised that this course of conduct is colossally counter-productive because it undermines the United States’ ability to defend its position vis-à-vis ICC jurisdiction “on the merits,” further isolates the United States from its historic allies and alliances, re-aligns the United States with global scofflaws and authoritarian actors who would degrade the rule of law, contributes to the deterioration of a rules-based international order, and threatens to erode domestic and international support — already under strain—for U.S. sanctions regimes more generally.
Background
The Trump administration was largely silent about the ICC in its early years. During this time, the Office of the Prosecutor (OTP) was pursuing preliminary examinations into two situations of acute concern to the United States: Afghanistan (which could implicate U.S. personnel in custodial abuses) and Israel/Palestine. But reserve gave way to naked hostility once John Bolton — who has an intense antipathy to the Court — was appointed National Security Advisor. Bolton quickly gave scathing remarks in a September 2018 speech at the Federalist Society signaling the emergence of a new, more aggressive approach to the Court, including threats to issue sanctions. Making Bolton an honest man, Pompeo subsequently revoked the visa of Fatou Bensouda, the ICC Chief Prosecutor, in March 2019.
Back at the Court, in an April 2019 opinion that drew sharp criticism, a Pre-Trial Chamber (PTC) ruled that the “interests of justice” counseled against the OTP proceeding with an investigation into crimes in Afghanistan given the prospects for a successful prosecution were “extremely limited.” Rather than respond with humility or grace, members of the Trump administration spiked the proverbial football. President Trump, in a statement, crowed that this was a “major international victory … for the rule of law.”
Not surprisingly given the weakness of the PTC’s reasoning, the United States’ triumphalism, and the distinct impression that the PTC judges had caved to U.S. threats, the ICC Appeals Chamber reversed on March 5, 2020, granting the Prosecutor permission to move forward with her investigation. On March 17, 2020, from the State Department podium, Secretary of State Mike Pompeo warned that ICC personnel—including two named individuals and their families—might imminently face sanctions for “helping to drive ICC Fatou Bensouda’s effort” to charge U.S. persons for potential war crimes in Afghanistan. In May, bipartisan members of both houses of Congress issued letters to Pompeo expressing opposition to the Court’s investigations in Israel/Palestine (the subject of the Senate letter) and Afghanistan (also mentioned in the House letter) that could be read as endorsing Pompeo’s threats against the Court.
As had been threatened, on June 11, 2020, President Trump issued an E.O. that established an expansive sanctions regime (encompassing potential visa and travel restrictions as well as asset freezes) enabling the United States to target individuals or entities who contribute to the OTP’s Afghanistan investigation or the investigation of U.S. allies. Amnesty International and others have pointed out that the E.O. is so vague and broadly worded that it might reach anyone providing any assistance at all to the Court, including expert (and perhaps even percipient) witnesses, national human rights researchers, defense counsel, state parties (who are under cooperation obligations), student interns, and even ordinary venders. At the time the E.O. was issued, no one was designated and so it operated as a warning shot.
Although Pompeo regularly invokes the imperative of “protecting U.S. troops” from the Court, as ret. General Wesley Clark made clear, the ICC Prosecutor has indicated that she is not focusing on battlefield conduct but rather custodial abuses in 2003-4 at the height of the U.S. torture program. This involved a network of Central Intelligence Agency black sites in European states (perhaps operating without their knowledge or consent), the torture of detainees, and other abusive conduct. Indeed, as several commentators note, the most serious allegations against the United States implicate the CIA rather than the Pentagon (as confirmed by the Senate Select Intelligence Committee’s report on the CIA’s Detention and Interrogation Program). Although U.S. military forces are also implicated in these allegations, it is disingenuous to suggest that U.S. opposition is all about protecting men and women in uniform deployed to the battlefield or that service members are now at particular risk of arrest when they are not.
In addition to General Clark, several other commentators insist that the United States has little to fear from the ICC, because it is unlikely that the Prosecutor would press charges against a U.S. person. There are many reasons for this, including the magnitude of the Afghan crime base (which encompasses crimes against humanity committed by the Taliban, the Khorasan Group, government forces, and other militia), the multitude of more recent abuses by these actors (with evidence collected by UNAMA, the U.N. Assistance Mission in Afghanistan), or because of the impossibility of obtaining sufficient evidence to do so, particularly given that the United States — as a non-party state — owes no cooperation obligations toward the court, as explained by Brian Cox.
As such, many assume that the OTP’s investigation into events in the Palestinian territories may actually be the real driving force behind the United States’ virulent response. Paul R. Pillar, a former intelligence officer, demonstrated that Israel “pushed America” to sanction the Court and to coordinate these with Israel. Indeed, some have noted that the risk to Israeli officials is much greater (witness the leaked list of potential defendants drawn up by the Israeli government). Nonetheless, the risk to U.S. persons is not zero, which would appear to be the only outcome to satisfy some U.S. officials.
The Reactions
The global community reacted to this threat escalation with opprobrium, generating an unprecedented number of public statements and responses. (See coverage here of reactions to Bolton’s 2018 remarks). A number of states and multilateral political bodies immediately weighed in, dispending with the customary diplomatic niceties to express their acute concern about the devolving U.S. stance toward the Court. Remarkably, this included ten members of the U.N. Security Council who are also ICC member states, including two permanent members: France and the United Kingdom. In their joint statement, the Council members reconfirmed their “unwavering support for the Court as an independent and impartial judicial institution” and reiterated their “commitment to uphold the principles and values enshrined in the Rome Statute and to preserve its integrity, undeterred by any threats against the Court, its officials, and those cooperating with it.” A number of the United States’ allies and partners also weighed in separately — including the European Union, France, the Netherlands, and the United Kingdom — expressing support for the Court and urging the United States to withdraw the E.O. These states noted that the threat of sanctions was an attack on the Court, all ICC states parties, the independence of the judiciary, and multilateralism itself.
A group of 175 legal scholars, jurists, and lawyers similarly pressed the Trump administration to rescind the E.O. Acknowledging that the signatories represented “a diversity of views toward the Court,” they could all agree that seeking to sanction war crimes investigators and international judges is “wrong in principle, contrary to American values, and prejudicial to U.S. national security.” Among the signatories was the remarkable Ben Ferencz, the last surviving Nuremberg prosecutor, a staunch advocate for U.S. support for contemporary international justice efforts in keeping with its post-World War II legacy, and an all-around national treasure. Ferencz joined a letter penned by former Ambassadors-at-Large for War Crimes Issues/Global Criminal Justice—who served in Republican and Democratic administrations—and other former international prosecutors that expressed dismay at the issuance of the E.O. So too did U.S. Senator Patrick Leahy, who stated: “This announcement is predictable from a President whose idea of justice is to encourage the police to abuse prisoners, pardon his friends, and override the Pentagon in cases of military justice.”
Pompeo’s mean-spirited singling out of two individual ICC staff members by name (and their families) in his March 2020 public statement drew focused censure. The former Ambassadors-at-Large and international prosecutors charged: “[t]his act of raw intimidation of the Prosecutor’s staff members is reckless and shocking in its display of fear rather than strength.” The New York Bar Association also expressed serious concerns about the threats made against individual ICC staff members and their families.
A group of U.N. special procedures mandate holders issued a joint statement — a once rare move that seems increasingly common vis-à-vis the Trump administration — condemning the threat of sanctions as a violation of judicial independence and of the prohibition against ex post facto penalties. In summary, they argued:
The use of unilateral sanctions against international judges and international civil servants constitutes a clear violation not only of their privileges and immunities, but also of a broad spectrum of rights of the targeted individuals. … In particular, the enforcement of E.O. 13928 would result in the violation of the prohibition of punishment for acts that did not constitute criminal offences at the moment of their commission, the right to a fair trial, the right to freedom of movement and the right to privacy and family life.
Among the U.N. experts are the Special Rapporteur on the Independence of Judges and Lawyers, the Independent Expert on the Promotion of a Democratic and Equitable International Order, and the Special Rapporteur on the Situation of Human Rights Defenders.
One of the most powerful — and perhaps surprising — voices to emerge in opposition to the E.O. was that of General Clark, the retired four-star general who (among other impressive posts) served as NATO’s supreme allied commander in Europe from 1997-2000. General Clark argued that the Trump administration’s approach to the ICC neither scores short-term political points nor advances the United States’ long-term interests. He wrote, “[g]reat nations are willing to face the truth, accept accountability, and admit their mistakes.” He insisted that the United States should be willing to subject itself to scrutiny, even if it is “uncomfortable” to do so. “And when Americans’ actions are scrutinized,” he argued, “the U.S. government should have the confidence to react in a way that preserves the benefits of these institutions, protects U.S. personnel, and does justice to American values.” These remarks are more than mere platitudes. As NATO commander, General Clark faced an inquiry by the International Tribunal for the former Yugoslavia, which investigated — but ultimately did not pursue — potential war crimes charges in connection with the NATO humanitarian intervention in Kosovo. Pillar agrees:
Subjecting one’s conduct to scrutiny by bodies such as the ICC and Human Rights Council can aid the United States in living up to its own standards, values, and principles. … There is still much value in giving a decent respect to the opinions of mankind.
Not surprisingly, elements of the Court itself reacted with disbelief, regret, and anger to the issuance of the E.O. Judge O-Gon Kwon, President of the Assembly of States Parties (ASP), immediately issued a statement decrying the “unprecedented” measures; pledging “to preserve [the Court’s] integrity undeterred by any measures and threats against the Court and its officials, staff and their families;” and announcing the convening of an extraordinary meeting of the ASP Bureau. More than half of the ICC member countries joined a further statement in support of the Court and the preservation of “an international rules-based order.” The President of the Court, Chile Eboe-Osuji decried Pompeo’s “bullying tactic” in an op-ed in The New York Times and elsewhere. The Prosecutor indicated her intention to continue her work “without fear or favor.”
Two special advisers to the Court — one focused on children affected by armed conflict and one on crimes against humanity — wrote on these pages that the E.O. would hinder their work on behalf of the Court. Professor Diane Marie Amann entitled her piece, “I help children in armed conflict. The President is forcing me to stop.” Professor Leila Sadat’s headline is even more chilling: “First They Came for Me and My Colleagues.”
Many critics pointed out that the E.O. constitutes an attack on the victims of cases before the Court, not just the institution or its staff. As Prosecutor Bensouda observed: “An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the ICC represents the last hope for justice.” The Guardian editorial board agreed:
The assault that the US has launched on the International Criminal Court is not merely an attack on a valuable and necessary institution. It is an attack on human rights themselves, and on the victims who have endured horrific abuses.
This includes Afghan victims, who have suffered multiple crimes against humanity at the hands of multiple armed actors and terrorist groups during decades of war.
Many human rights and faith-based non-governmental organizations (NGOs) have called upon states to rally in support of the Court in the face of “virulent threats” and an all-out assault by the Trump administration. Dozens of human rights organizations signed an open letter arguing:
the U.S. government must find ways to address its stated concerns without alienating other countries that have supported international justice or signaling to those who may face the scrutiny of institutions like the ICC that intimidation is an acceptable means of avoiding accountability.
Richard Dicker of Human Rights Watch pointed out that elements within the United States have responded to this sort of diplomatic campaign in the past. During the administration of George W. Bush, for example, many anti-ICC measures were ultimately dismantled (such as withholding aid to states that did not ratify an Article 98 agreement with the United States) because they proved to be counter-productive, harmful to U.S. interests, and anathema to our allies and partners.
These arguments were echoed not just by human rights organizations, but also by a number of respected professional organizations, including the American Bar Association, the Philadelphia Bar Association, and the New York City Bar Association, the last of which has Task Forces on the Independence of Lawyers and Judges, Human Rights, the United Nations, and the Rule of Law. The New York City Bar issued a statement condemning the sanctions authorization:
This attempt to use executive power to infringe upon the independence of a judicial institution contravenes established principles of judicial independence both in the U.S. and around the world. The broad language of the Executive Order is also likely to have a chilling effect on those who would otherwise have a legitimate interest in ensuring that genocide, crimes against humanity, and war crimes are properly investigated and prosecuted.
The New York City Bar also released a statement to Congress addressing what it viewed as erroneous statements in the two congressional letters referenced above.
The ABA adopted a formal policy at its 2020 Annual Meeting “urg[ing] all national governments to observe, respect, and protect the independence of the International Criminal Court;” and “condemn[ing] threats by governments to the International Criminal Court and its officers and personnel in the performance of their duties.” A statement by the International Bar Association was equally hard hitting:
The IBA is appalled by the United States Government’s continued campaign to intimidate ICC staff. … The unprecedented punitive application of sanctions on a legitimate judicial institution is a shameful move to undermine the Court’s authority and to obstruct its investigations.
It is not entirely clear where the U.S. public is on these issues. The research of political scientist Kelebogile Zvobgo, of the University of Southern California, indicates that members of the U.S. public are not particularly familiar with the Court but generally support U.S. involvement with the institution when introduced to it and respond positively to statements about U.S. leadership in promoting international justice and human rights. Indeed, her research suggests that Americans are “more concerned about the ICC’s fairness and competence — and less concerned about whether U.S. personnel may be investigated.” This is largely consistent with other U.S. polling, as I compiled here. For example, according to a 2018 ABA poll, only “21% of Americans strongly or somewhat opposed an [ICC] investigation of Americans.” That said, Zvobgo cautions that these attitudes may not be strong enough to provoke political action.
Of course, not all the commentary was negative; a few supporters did emerge. Some Israeli organizations and Prime Minister Benjamin Netanyahu hailed the E.O.; the latter complained that the ICC “is politicized and obsessed with carrying out a headhunt against Israel and the United States as well as other democratic countries that respect human rights, but turns a blind eye to the world’s worst human rights offenders, including the terrorist regime in Iran.” Beyond these Israeli sources, the Heritage Foundation’s Brett Schaefer praised Pompeo’s actions as evincing a “willingness to push back against the ICC’s infringement of U.S. sovereignty.” Schaefer elsewhere argued that the threat of sanctions “underscore[s] the seriousness of U.S. opposition, and make clear to the Court that there would be ramifications for the decision to investigate American and allied officials and military personnel without consent.”
Likewise, John Yoo, one of the key architects of the United States’ “enhanced interrogation” program and author of several “torture memos” during the Bush administration, argued that the “United States is taking a stand not just for itself, but the idea that international organizations do not govern sovereigns, but that sovereigns govern International organizations.” Yoo — who in the National Review described the Afghanistan investigation as another effort by a “global elite … to threaten American sovereignty” — went on argue that the United States should sanction, weaken defense ties with, and cut foreign aid to any state that supports or cooperates with the ICC’s investigation or even that funds the Court. He singled out Japan, which is a major ICC donor, arguing that ICC supporters “cannot expect American troops to protect any nation seeking to prosecute and imprison them.”
On balance, however, the majority of commentary opposed the United States’ move, including from major (and minor) newspaper editorial boards, such as The Guardian, and op-ed writers the world over, such as Dr. Talat Farooq of the Islamabad Policy Research Institute.
A Counter-Productive Course of Action
“Counter-productive” is by far the most common description of Pompeo’s approach to the ICC. Several articles — even from those who insist that the United States is under no obligations to affirmatively cooperate with the Court — pointed out how ultimately self-defeating this course of conduct is — a baffling “reverse logic,” according to one author. While a policy that packs a symbolic punch can be emotionally satisfying to its authors, policymakers should aim to advance, rather than undermine, state interests in their decision-making. Bullying the Court does not endear the United States to Court actors or its supporters and rather leaves them disinclined to give the U.S. position a full hearing. Many have argued that rather than incentivizing Court actors to stand down or turn their attentions toward other armed groups within the Afghanistan situation, Pompeo’s course of conduct will inspire them as to the righteousness of their cause.
Professor Bill Burke-White, for example, has argued that the Prosecutor has significant discretion around where to turn her attention. The United States built a productive relationship in the past with the Court, sharing information and supporting its work diplomatically and logistically. However, he opined that the United States has “now fully squandered that good will,” such that elements of the Court have “little reason to remain deferential to the U.S. or to seek its support.”
As noted by Randle DeFalco, many of these statements in support of the Court were issued by individuals and entities that have, at times, expressed disappointment in the Court’s track record and have led efforts around reform (including in ways that the United States would support). In an important contribution to the discussion, Peter Harrell, with the Center for New American Security, agreed that
ICC sanctions would shift the debate in Europe and elsewhere away from the serious underlying flaws in the ICC decision to investigate — including that the U.S. is not a party to the ICC and that Afghanistan, which is a signatory, has not requested such an investigation — to the issue of whether the U.S. response is appropriate. Rather than, for example, having the potential for allies to join the U.S. in an action that might stop the ICC investigation, such as trying to convince the U.N. Security Council to use its powers to stop it, sanctions might just get the ICC’s supporters to dig in their heels.
Kelebogile Zvobgo and Stephen Chaudoin, of Harvard, suggest another way this move might backfire on the United States: Trump’s efforts may trigger a “Streisand Effect” whereby attempts to suppress or hamper investigations actually invite additional public scrutiny. It has been noted more than once that the U.S. approach suggests that Pompeo and others have “something to hide.” Indeed, to the extent that U.S. conduct forms part of the OTP’s investigation, this mostly concerns Bush-era abuses (2003-4); nonetheless, as Haley S. Anderson and Randle DeFalco point out on these pages, the attack on the Court might be personal for Pompeo, who served as CIA director from 2017-18, when some alleged abuses occurred in Afghanistan according to Human Rights Watch.
Alienating our Allies and Putting the United States in Bad Company
Many commentators pointed out that judicial independence and the integrity of the judicial process are key elements of the rule of law — a fundamental value that the United States promotes around the world through its programming, development aid, and diplomacy. Attacking this principle, it is argued, will only alienate our allies, including members of the ASP that might be open to assisting the United States in its response to the Afghanistan probe and seeking changes to the ICC’s working methods, including through revisions to the Court’s Rules of Procedure and Evidence or advocating for amendments to the way in which the principle of complementarity has been interpreted. As former international prosecutor David Crane argued, “The ICC is not perfect and has serious challenges, but it is better to work to make it a stronger institution than try to destroy it.”
Peter Harrell thus argued that sanctions would “trigger a backlash by U.S. allies that would far outweigh any perceived benefits from sanctions.” When combined with other moves that antagonize our allies, the United States’ aggressive ICC policy will further weaken our existing strategic alliances. These are already under strain due to the Trump administration’s penchant for putting “America First” and rejecting multilateralism across the board — a “dark manifestation” of American exceptionalism according to one commentator.
General Clark, the ACLU, Ambassador David Scheffer, and others observed that in bullying the ICC, its judges, and its staff, the Trump administration found itself in the “lonely company” of such autocrats as Rodrigo Duterte of the Philippines, who also threatened the ICC Prosecutor with arrest were she to attempt to enter the country to further her investigation into a campaign of summary execution in connection with his “war on drugs.” Indeed, all seem to agree that the United States’ “rogue behavior” will embolden, and give top cover to, autocrats to attack their own domestic prosecutors and judges when such authorities would seek to investigate and adjudicate allegations of corruption, human rights abuses, and other misconduct. As the 175 jurists wrote in their public statement:
Bloody and lawless rulers can now be expected, not only to resist, but also to follow Washington’s example of threatening and punishing ICC lawyers simply for doing what most countries and nearly all democracies of the world ask of them — to pursue justice for genocide, war crimes and crimes against humanity.
The ABA agreed, reasoning that Pompeo’s announcement:
represents an attack on international and national judicial independence writ large, thus setting a negative example for the rest of the world. In a time when democracy is in retreat globally, such an attack against the ICC and its professional staff by the United States — historically the leading exemplar of democracy and a just rule of law, of which an independent judiciary is an indispensable part — gives fodder to those who cite such attacks as a legitimate basis to undermine judicial independence in their countries.
Even prior to the issuance of the E.O., The New York Times reported that the U.S. attacks on the Court were “bolstering [the] world’s despots” in such places as Burundi and Sudan. Others noted that this hostile approach will embolden critics of the United States: “No matter what one thinks of the legitimacy of the ICC’s investigations, threatening the use of the most severe tool in the U.S. diplomatic arsenal against ICC officials plays to the advantage of every critic of unilateral U.S. action.” Indeed, some of those very despots have criticized the United States’ bullying of the Court. For example, back in 2018, the Foreign Minister of Iran decried “the boorishness of this rogue regime” and queried: “When will the international community say enough is enough and force US to act like a normal state?”
Undermining the Efficacy of U.S. Sanctions
As an alternative perspective, several sanctions experts raised questions about the underlying legal basis for the E.O., querying what, exactly, was the “emergency” or “unusual and extraordinary threat … to the national security, foreign policy or economy of the United States” (in the words of the statute) at issue. The New York City Bar Association reasoned:
the actions of one judicial institution, the work of which is largely aligned with U.S. interests, is not an “unusual and extraordinary threat to the national security and foreign policy of the United States,” as the Executive Order claims as its basis for a “national emergency.” The ICC has no independent enforcement power and relies upon state support and cooperation. The numerous constraints on the ICC’s operations include unexecuted arrest warrants and funding difficulties. These inherent challenges to the Court’s success have provided fodder for its critics, as evidenced by the June 11, 2020 Press Briefing, during which U.S. officials described the ICC as “grossly ineffective” and a “failed institution.” If this is indeed the view of the current administration, the ICC cannot possibly pose an “unusual and extraordinary threat” that constitutes a “national emergency.”
Indeed, Andrew Boyle, of the Brennan Center for Justice, described the E.O. as a “a gross abuse of emergency powers.” Boyle argued that the ease at which Trump was able to issue this spurious E.O. exemplifies the need, and strengthens the call, for Congress to reform the underlying legal authority for most U.S. sanctions: the International Emergency Economic Powers Act (IEEPA) (see prior coverage here).
Many commentators and NGOs made the point that it was perverse to see the United States utilizing a set of tools that is ordinarily deployed against terrorists, drug king-pins, corrupt autocrats, human rights abusers, transnational criminals, and autocratic adversary regimes (such as Iran, North Korea, Russia and Syria) to target jurists and civil servants working to end impunity for the worst crimes known to humankind. As a group of NGOs argued:
Many of us have advocated for the United States to deploy these powerful tools against war crimes suspects, corrupt leaders, and others whose actions have devastated their countries and left thousands dead — and we do not believe it can ever be appropriate to treat the court’s personnel in the same way. Doing so would be unworthy of the U.S. tradition of promoting justice for the most serious crimes, and it would be inconsistent with our common interest in ensuring there are effective institutions of last resort when all other ways of promoting respect for human rights, the rule of law, and a lasting peace have failed.
Human rights sanctions expert Rob Berschinski of Human Rights First also opined that this startling over-reach could jeopardize the ability of the United States to utilize sanctions effectively in the areas in which they are warranted and erode crucial support for enforcement from our partners.
Likewise, Brian Cox expressed the concern that this aggressive approach toward the Court — an institution that has been embraced by U.S. allies and trading partners (although not without some ambivalence) — will be perceived as an unwelcome interference within the domestic order of other nation states called upon to implement these controversial sanctions and require them to decide whether they will go along or defect. Indeed, unilateral U.S. sanctions programs are already contentious in other contexts, and several have become the subject of blocking regulations within Europe (see too the recent fight over Iran sanctions). The ICC sanctions may paradoxically strengthen European mechanisms designed to limit the impact of U.S. sanctions, such as INSTEX (described as a “Trump-busting” effort to blunt the impact of the United States’ Iranian sanctions). As Harrell opines: “ICC sanctions would simply add fuel to this fire and could even get Europe to expand its efforts to blunt the impact of U.S. sanctions generally.” Other states are looking for work arounds and an excessive reliance upon sanctions, vice other tools, risks the emergence of alternative global reserve currencies, as Fareed Zakaria has warned.
It is not just our allies whose support is necessary for any sanctions program to work. U.S. courts have been highly deferential to the executive branch when it comes to sanctions programs. However, the judiciary may not be willing to continue to go along in the face of such a dramatic, controversial, and unprecedented use of IEEPA.
Finally, using this tool in this context may not only weaken it, but it also overlooks the use of other, more effective responses. As Benjamin Friedman noted: “Washington is addicted to sanctions and has seemingly forgotten we have many diplomatic tools to express displeasure without economic coercion that angers U.S. allies and anyone else who sees the ICC as something other than an enemy.” Given all these concerns with how the Trump E.O. may weaken U.S. sanctions more generally, it did not go without notice that Treasury Secretary Steven Mnuchin was not on the podium when the potential sanctions were announced.
Undermining Complementarity Arguments
Many of these critical voices reminded the United States that the ICC is a court of last resort that will only step in when the nationality state has proven itself to be unwilling or unable to appropriately address the commission of international crimes. These commentators urged the United States to address the enduring legacy of torture during the so-called Global War on Terror in order to redirect the attention of the Court. The ABA, for example, pressed the United States to “exercise U.S. sovereignty” and “conduct and complete its own thorough investigation and prosecution of atrocity crimes” committed by U.S. personnel. The IBA echoed this point: “Instead of harassing ICC staff, the US should get its own house in order, by providing and demanding genuine accountability.” Likewise, ICC President Eboe-Osuji reasoned: “No one disputes that the American justice system is among the strongest in the world. But it needs to be put to use in the quest for justice for victims of alleged violations in Afghanistan.” He continued that U.S. concerns about service members being subject to ICC jurisdiction could be eliminated altogether:
All it takes is for American authorities to submit individuals suspected of violations in Afghanistan to America’s own very effective system of justice. Doing so should effectively address the Afghan victims’ demand for justice. The I.C.C. would fully welcome that.
These comments confirm that it is not too late for the United States to mount a credible complementarity challenge. Additional steps to this end include releasing more information about disciplinary actions within the military justice system and elsewhere, and the Department of Justice’s eventual decision not to investigate CIA perpetrators. Indeed, former Attorney General Eric Holder has lamented on more than one occasion that more fulsome information was not released about the investigation conducted by John Durham (the Connecticut federal attorney, now undertaking the Russia election inquiry, who recommended that charges be considered with respect to two deaths in U.S. custody), and the ultimate decision not to press charges in even those two cases. Releasing more information about why charges were deemed either inappropriate or unwarranted would “let people see how seriously we took the responsibility that we had to figure out whether criminal charges could be brought,” Holder stated. However, at the time of the investigations, and ever since, the Department of Justice has consistently stymied efforts by reporters and lawyers who have sought information about accountability for torture and other abuses through the Freedom of Information Act, legal discovery, and other means.
Other suggestions include convening a public truth commission to examine the causes and consequences of the U.S. torture program and give individuals involved (including victims and perpetrators) a chance to bear witness (a proposal recently articulated by General Clark and advanced earlier by Senator Leahy during the Obama Administration). In addition, it has been suggested that the United States should develop a mechanism to offer restitution to victims (particularly those egregious cases of “mistaken identity” such as Maher Arar).
That said, several commentators have argued that the Court’s complementarity jurisprudence has created too high a bar for states to meet and that the standard of “same person, same conduct” should be revisited. This would enable the Prosecutor and Court to accord greater deference to national systems — particularly established democracies with highly developed judiciaries — that choose to deal with the commission of international crimes by their nationals with alternative charges (e.g., the Al Capone approach), reforms of policy, disciplinary proceedings that might fall short of a full-scale criminal trial, a commission of inquiry or other systemic investigation, restitution programs, or other processes drawn from the field of transitional justice. Such deference might be particularly appropriate for non-party states, as cogently argued by Douglas Guilfoyle, which owe no cooperation obligations to the Court. Indeed, Afghanistan recently requested the Court to delay moving forward in order to allow its own processes time to work.
The aggressive Trump approach, however, largely forecloses the United States’ ability to make such arguments on the merits or to build support within the ASP to consider rules changes that might lean in this direction. As Rob Berschinski has written:
characteristically, the Trump administration appears to have eschewed the painstaking diplomacy that could have appropriately protected U.S. service members without further delegitimizing the Court. … Instead, the administration has chosen a belligerent course that ICC experts suggest will do little to achieve the administration’s own stated goals.
This is particularly so when coupled with other actions by President Trump, such as pardoning and praising convicted war criminals (against the wishes of the Pentagon), disrespecting the operation of the military justice system, and engaging in “loose talk” of committing war crimes, such as “pillaging Syrian oil or destroying Iranian cultural sites” (as noted by General Clark). Indeed, Trump has previously said torture victims “deserve it” and glorified war crimes. None of these moves will endear the United States to justice advocates or support its complementarity arguments.
Eroding International Norms and Rules
Several commentators saw the E.O. and the attack on the Court as part of a crisis of accountability and another systemic abuse of power by the Trump administration. Many argued that this line of attack will erode international norms that ultimately inure to the benefit of the United States. General Clark noted that the United States stands to benefit from the existence of a robust system of international law, including the law of armed conflict, which protects not only civilians but also its own armed forces: “American men and women in uniform benefit from the expectation that all parties to a conflict will respect the Geneva Conventions and customary international law in how they conduct hostilities and treat prisoners.” Moreover, he observed that the United States can build more effective coalitions with like-minded allies and stronger partnerships with host nations when “the United States holds itself to these rules.” The E.O., by contrast, positions the United States outside the rule of law. As Nuremberg prosecutor Ben Ferencz poignantly wrote in an op-ed,
I was a prosecutor at Nuremberg. I know an attempt to thwart the law and flout international norms when I see one. And I see one.
The Possibility of Contempt Charges Before the ICC
Several authors explored whether the ICC could actually hold responsible members of the Trump Administration in contempt, based upon the argument that Article 70 of the ICC Statute allows the Court to prosecute offenses against the administration of justice. This includes the offenses of: “impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly his or her duties” and “retaliating against an official of the Court on account of duties performed by that or another official.” The Court’s own response to the E.O. echoes some of the Article 70 language, noting that Pompeo’s statement was made “with the declared aim of influencing actions of ICC officials.” Indeed, Ambassador Stephen Rapp (former Ambassador-at-Large for War Crimes Issues) noted that this conduct would be criminal under U.S. law if committed here against a U.S. judge.
Sergey Vasiliev argued on these pages that the ordinary jurisdictional limitations of the Court do not apply to the Article 70 regime. So, the fact that the United States is not a party to the Rome Statute is of no moment as a legal matter. As further explained by Uzay Yasar Aysev, there is no need to show that targeted Court officials were, in fact, deterred or otherwise influenced by the acts of intimidation; it is enough that the threats were issued and they were of sufficient gravity to potentially influence the target. To be sure, Brian Cox, also writing on Just Security, takes issue with this interpretation of the jurisdictional reach of the Statute, arguing that there would need to be an underling prosecution under one of the ICC’s core crimes in order to charge these administration of justice crimes. All that said, Vasiliev and others conceded that such a prosecution would be exceedingly arduous as a practical matter, even if legally authorized.
Weakening U.S. Leadership in Atrocities Prevention & Response
Finally, almost all agree that the threat of sanctions undermines the United States’ ability to be a voice for justice and accountability for mass atrocities around the world — a long-standing pillar of U.S. foreign policy and a source of bipartisan U.S. pride. As a group of NGOs argued, “[p]unitive measures against the ICC diminish the credibility of that voice.” And, “[t]he U.S. should not now turn its voice, diplomatic tool kit, and financial weight against an institution essential to achieving the[] goal[]” of breaking the cycle of impunity. The 175 jurists insisted that “[t]o stand against atrocities, while simultaneously opposing investigations of those who allegedly commit them, strains credibility.” Mark Zaid, a national security lawyer who has worked on multiple counter-terrorism cases, argued that this move “is an insult to everything the United States has stood for over the decades,” and an abdication of U.S. leadership in atrocities prevention and response. Crane agrees: “This is unAmerican at so many levels…rule of law, seeking justice for the oppressed, facing down tyrants who feed on the lives of their own citizens … helping the little guy … the underdog.”
This point was echoed by the former Ambassadors-at-Large and international prosecutors, who once represented the United States on the world stage: the E.O. “can only undermine the confidence of those around the world who look to the United States for leadership and inspiration to protect the victims of the world’s worst atrocities.” Amnesty International agreed, arguing “[t]hat the Trump Administration is so committed to targeting the court speaks volumes about its lack of commitment to delivering justice to individuals, families, and communities.” The Guardian editorial board concluded that although the work of the Court will be impacted, the United States’ standing in the world will be the real casualty:
in the end, though Mr. Trump and his administration will not see it, this attack may be more damaging to America’s reputation and authority than it will be to the court’s.
Ambassador Clint Williamson, a political independent who has served extensively in both Democratic and Republican administrations, similarly argued:
the Administration’s action … 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.
Many have noted that Pompeo’s approach betrays the ways in which the ICC’s work supports enduring and bipartisan foreign policy priorities, such as the promotion of justice and accountability in the Central African Republic, the Democratic Republic of Congo, Myanmar, and Sudan — all areas where the ICC is active. As Ben Batros argued following the arrest of long-time fugitive Ali Kushayb: “[t]here is also a sad irony … that this breakthrough in the Darfur investigation comes at a moment when relations between the ICC and the United States are at a new low” after the United States was instrumental in initiating the Darfur investigation in the first place. The New York City Bar Association also drew attention to the Court’s prosecution of members of the Lord’s Resistance Army for their depredations in Northern Uganda and elsewhere and the open investigation into religious persecution, potentially amounting to genocide, in Myanmar. The United States has actively supported all these justice efforts, including by deploying special forces to assist Uganda and neighboring states in tracking the elusive LRA.
Batros ends his contribution with the fundamental question:
Can the United States find a way to maintain those objections [to the Court’s exercise of jurisdiction over U.S. nationals] (where they are relevant) without eroding its commitment to accountability or undermining the Court’s activities in the majority of situations where they align with that U.S. interest — not just in Darfur, but in Myanmar, DRC, CAR, Libya, Georgia, or Ukraine?
Many suggest that it cannot do so with Pompeo in charge of U.S. ICC policy. In many respects, Berschinski’s final remarks capture the overwhelming response to the mere issuance of the E.O., even absent any actual sanctions designations:
Nothing good will come of the ICC E.O. Law-abiding U.S. service members won’t be any better off. U.S. sovereignty, which the E.O. ostensibly seeks to defend, will not be better protected. The international effort to stigmatize and ultimately eradicate the worst atrocity crimes won’t be better off. And the ICC certainly won’t be any better off — which is, of course, the point. As with so many Trump administration decisions, America’s reputation will needlessly suffer, and with it, an important foreign policy tool will grow less effective.