Trump vs. International Law: The Trump Administration and International Criminal Justice

[Beth Van Schaack is the Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and Faculty Affiliate at the Handa Center for Human Rights & International Justice at Stanford University. Prior to returning to academia, she served as Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State.]

Until very recently, the Trump Administration had been largely silent on international criminal justice issues and the imperative of accountability for grave international crimes. As such, and given how much other ground there was to be covered, the topic makes only a few cameo appearances in Professor Harold Hongju Koh’s magisterial new book, The Trump Administration and International Law (although he has written extensively on this topic elsewhere). After the book was finalized, however, Trump’s National Security Adviser John Bolton launched his opening salvo against the International Criminal Court (ICC) with a speech at the Federalist Society. As a number of commentators have observed, the speech is

• reactionary,
• overwrought,
• alienating (and welcomed only by those rogue states whose officials are under investigation, such as Sudan and Burundi),
• self-defeating,
• specious (since many of his threats cannot be legally carried out), and
• potentially in violation of the Rome Statute itself, according to one commentator.

Nonetheless, there is no question that the Trump Administration has now staked out its public position vis-à-vis the Court.

Bolton has been waiting a long time to be able to deliver this speech. In a 1999 thought experiment, the Council on Foreign Relations invited Bolton—along with Human Rights Watch’s Director Ken Roth and Johns Hopkins Professor Ruth Wedgewood—to draft hypothetical presidential speeches about how the United States should approach the Court, whose constitutive Statute had recently been finalized. Bolton’s contribution to this initiative was characteristically bellicose and internally inconsistent (arguing both that the Court presents an existential threat to the United States but is weak and useless). With his appointment as National Security Adviser, Bolton now has the platform to officially advance these ideas (indeed, relying on many of the same turns of phrase as in his earlier fictitious speech and subsequent publications) and others that are even more radical.

This attack on the Court—and its personnel—is as unfortunate as it is unwarranted and marks a sharp departure from the United States’ previous posture towards international justice efforts. The United States has been a central player in the global effort to advance accountability for grave international crimes, starting with the Nuremberg and Tokyo tribunals after World War II. Indeed, the influence of the United States is apparent throughout the modern genealogy of international criminal justice.

Starting with the International Criminal Tribunals for the former Yugoslavia and Rwanda via the Security Council, the United States has been a strong supporter—financially and diplomatically—of ad hoc international criminal courts. These include the second generation hybrid courts: the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the Extraordinary African Chambers, and the International Commission Against Impunity in Guatemala (CISIG). Most recently, the United States has helped to stand up the Kosovo Specialist Chambers and Special Prosecutor’s Office—the newest justice institution to join this community of courts. Indeed, the new Specialist Prosecutor, Jack Smith, is funded by the United State as an in-kind donation to an otherwise European Union-led institution. It has also expressed support for new hybrid institutions dedicated to South Sudan and the Central African Republic—a situation also before the Court.

In addition, the United States has been instrumental in conceptualizing and launching the third generation of international justice mechanisms that include two new documentation efforts for Syria and Iraq: the Syria International, Impartial and Independent Mechanism (IIIM) via the General Assembly and the Iraq Investigative Team via the Security Council. Finally, the United States regularly sponsors grant programs (“notice of funding opportunities” or NOFOs) through the Bureau of Democracy, Human Rights and Labor (DRL) that are open to members of the civil society ecosystem that exists around these institutions, such as organizations devoted to documenting the commission of international crimes or rehabilitating victims.

The United States’ relationship with the ICC obviously presents a more complicated story, but even here the United States has proved itself committed to the ideals of justice for the most serious crimes of international concern and able to navigate a nuanced relationship with the Court. Although the United States was centrally involved with the negotiations around the Rome Statute, the final treaty ultimately crossed too many of its red lines. At that time, the concern of the administration of President Bill Clinton was a rather amorphous one grounded in American exceptionalism: that a seemingly unaccountable prosecutor would bring meritless or politically-motivated prosecutions against U.S. personnel deployed in response to sovereign and global threats. Nonetheless, President Bill Clinton ultimately decided to sign the treaty on the final day it was open for signature (and while in his lame duck period), although he reiterated these concerns in his signing statement and did not recommend it be submitted for ratification.

The perceived threat posed by the Court became more pointed as the United States assumed a war footing after the attacks of September 11^th and quickly became embroiled in seriatim custodial abuse scandals. During the first term of the administration of George W. Bush, the United States assumed a decidedly antagonistic stance toward the Court. Congress passed the American Servicemembers Protection Act (ASPA) in August 2002; Bolton as Under Secretary of State for Arms Control and International Security purported to “unsign” the Rome Statute; and the United States entered into dozens of bilateral immunity agreements to protect U.S. personnel from being transferred to the Court.

This aggressive approach soon began to soften, however, as it became clear that this posture was counter-productive, had generated avoidable resentment towards the United States, and

fed a false narrative that the United States was hostile to international justice

in the words of John Bellinger, former Legal Adviser in the State Department during parts of the Bush Administration. President Bush ultimately waived many of the restrictions on aid to ICC member states, and Congress eventually defanged elements of ASPA. By abstaining on the 2005 Darfur referral resolution, the United States signaled its realization that the Court has a useful role to play in the international system, particular when there are no other options to advance accountability. It was this realization that inspired the United States to support the establishment of the ICC In the first place. In a 1993 speech to the Sixth Committee, U.S. State Department Legal Advisor Conrad Harper acknowledged that

My government has decided to take a fresh look at the establishment of [an international criminal] court. We recognize that in certain instances egregious violations of international law may go unpunished because of a lack of an effective national forum for prosecution. We also recognize that, although there are certain advantages to the establishment of ad hoc tribunals, this process is time consuming and may thus diminish the ability to act promptly in investigating and prosecuting such offenses. In general, although the underlying issues must be appropriately resolved, the concept of an international criminal court is an important one, and one in which we have a significant and positive interest. This is a serious and important effort which should be continued, and we intend to be actively and constructively involved.

The United States’ overall approach towards the Court had tempered considerably by the time President Obama was elected. The United States also realized it could assert more influence over the direction of the Court if it participated in the negotiations around the crime of aggression than if it continued to absent itself. In addition to supporting the Security Council’s referral of Libya to the Court in 2011, the United States also worked to block efforts within the Council to “defer” the Sudanese and Kenyan investigations. The United States took the lead on exploring accountability options for Syria. With bipartisan support, it joined a French-led referral resolution that earned a double veto from Russia and China when it was put to a vote—one of the 12 vetoes exercised by Russia since that horrific conflict began.

By the end of the previous administration, the United States was engaging constructively with the Court in all of its open cases, including by providing intelligence; encouraging states to cooperate with the Court; joining the hunt for the Lord’s Resistance Army (LRA); enabling the transfer of two fugitives who landed in U.S. custody (Bosco Ntaganda and Lord’s Resistance Army member Dominik Ongwen); and offering rewards for information leading to the capture of other indictees. In Harold Koh’s words: “we have applied a pragmatic, case-by-case approach toward ICC issues.” That said, the ICC Office of the Prosecutor’s preliminary examination in Afghanistan was forever on the horizon, threatening to derail this evolution. Bolton’s recent speech to the Federalist Society has no doubt put an end to this practice of case-by-case constructive cooperation, even when legal accountability is squarely within U.S. national interests.

There are many reasons that the United States should not cut ties completely with the ICC. In addition to being in a better position to protect itself from ICC scrutiny by invoking complementarity and other arguments, it will relinquish a tool that has already proven invaluable in the face of atrocity situations where there are few other options.

The plight of the Rohingya, which Ambassador Nikki Haley has championed within the Security Council, offers a prime example of the utility of the ICC to U.S. foreign policy priorities in the human rights context. Haley has called the Myanmar government’s denials of the abuses “preposterous” and demanded that the government investigate abuses and allow humanitarian actors better access to victims. The United States has ended military aid to Myanmar and imposed economic sanctions in response to the human rights abuses being committed in Myanmar. Secretary Pompeo has pledged to hold those responsible for the “abhorrent ethnic cleansing” accountable. It has also recently announced that it will provide more than $185M in humanitarian aid to Myanmar’s Rakhine State.

The United States commissioned its own investigation into the Rohingya situation involving over 1000 randomly selected refugees in camps in Cox’s Bazar, Bangladesh, who were surveyed in April 2018. The harrowing results of this study have just been released, and the State Department has confirmed that its conclusions are consistent with those of a United Nations-dispatched Fact Finding Mission, which recently released its own final report calling for criminal investigations into crimes against humanity and genocide. Leaked documents suggest that Secretary of State Mike Pompeo is reportedly weighing whether this violence constitutes genocide as that crime is defined under international law. I’ve conducted my own analysis (available here) based upon open-source reporting and interviews with individuals who have worked directly with this group of victims that concludes that a genocide determination is appropriate under the circumstances.

Meanwhile, the ICC Prosecutor recently announced that she has opened a preliminary examination into the acute persecution of the Rohingya in Myanmar now that she has the green light from the Court to do so on the basis of Bangladesh’s ratification of the Rome Statute. The State Department’s recent study will no doubt form an invaluable part of her analysis of how to move forward with an investigation and potential indictments.

The plight of the Rohingya—deemed by many to be the most persecuted minority group on the planet—is a situation in which ICC action is both unquestionably appropriate and singularly essential. Indeed, there are no other justice options available. Myanmar’s courts have proven themselves to be instruments of oppression against anyone who would criticize the regime or expose this violence (as witnessed by the recent sham trial of Reuters journalists Wa Lone and Kyaw Soe Oo); Bangladesh is making efforts on the humanitarian front, but does not have the domestic capacity to prosecute the architects of the horrific violence that has driven the Rohingya into its territory; and Burman perpetrators are unlikely to travel, in part because of visa bans against them (although critics contend that the travel bans have not gone far enough), so extraterritorial trials will be rare if not entirely foreclosed.

Given that it has already staked out its position vis-à-vis violence in Myanmar, committed significant aid resources for victims, and invested heavily in documentation of abuses in Myanmar, the United States should support an investigation by the ICC. The tension between these two policy positions—genuine interagency concern for the Rohingya and Bolton’s congenital antipathy towards the Court—is already apparent in State Department communications. Indeed, shortly after Bolton’s incendiary speech, the State Department spokeswoman, Heather Nauert, noted in a press briefing that the United States has “very serious concerns” about the ability of Myanmar’s judicial system to address these abuses. When pressed about whether the United States would support the ICC’s investigation of the Rohingya matter, she stammered:

U.S. Government … I can tell you will take a very close look at what forum, what venue we think is most appropriate for handling these types of very sensitive cases.

The United States cannot credibly raise concerns about the terrible plight of the Rohingya in one breath and then trash the one institution that may be in a position to address these concerns in the next. The United States has the diplomatic acumen to work constructively with the Court on those situations in which it supports justice efforts while still defending itself when it comes to the Afghanistan situation. As Harold Koh has written elsewhere:

taking a stand for justice and the rule of law is part of our national character. … Moreover, the United States has long recognized that international criminal justice—and accountability for those responsible for atrocities—is in our national security interests as well as in our humanitarian interests … by promoting a culture of accountability that can help increase stability and thus decrease the need for far more costly military interventions in the future.

Remaining engaged with the Court is an example of what Harold Hongju Koh and others call a “smart power” approach:

not to shut ourselves off to those with whom we disagree, but to engage and work for mutually beneficial improvements that advance U.S. interests, including our interest in justice and the rule of law.

The Trump Administration would do well to heed this call.