The International Criminal Court is Hardly a Threat to US National Security

[Jennifer Trahan is Clinical Professor, NYU Center for Global Affairs and Megan Fairlie is Professor of Law, Florida International University College of Law.]

On June 11, Donald Trump issued an Executive Order that exponentially intensifies the United States’ ongoing attack on the International Criminal Court (ICC) and its staff.  Disturbingly, the Order also targets foreign nationals and, seemingly, US nationals.  Regrettably (although predictably), the US is again using strong-armed tactics and threats to ensure US nationals alleged to be implicated in torture, and Israeli nationals alleged to be implicated in crimes, benefit from impunity.  Once again (see Trahan’s prior post), the Order and accompanying Press Briefing are littered with legal and factual misstatements.

Problem 1:  The claim that there is a “national emergency” that warrants the Order

First and foremost, there is no conceivable way that one judicial institution, whose work is largely aligned with US interests (see below), is an “unusual and extraordinary threat to the national security and foreign policy of the United States” as the Order claims as its basis for a so-called national emergency.  This argument relies on an audience ignorant to the work of, and consequent challenges faced by, the ICC—in particular due to its reliance upon state support and cooperation. Those familiar with the Court instead recognize the numerous constraints under which it operates, including unexecuted arrest warrants and funding difficulties. These inherent challenges to the Court’s success have provided fodder for its critics, as evidenced in Thursday’s Press Briefing, during which US officials described the ICC as “grossly ineffective” and a “failed institution.”  If this is indeed the view of the current administration, how can the ICC possibly pose “the unusual and extraordinary threat” that constitutes the “national emergency” upon which the Order is based?   

At its core, the issue is rather the United States’ insistence that its nationals—and those of its close ally—be treated as above the law.  As such, it is the Order itself—a desperate measure designed to ensure impunity for acts of torture and other violations of international law—that poses the true threat, both to US standing in the world, and to the rule of law globally.  In effect, the Order adds a new page to the US-drafted “dictator’s playbook,” described by Trahan in her past post.

Problem 2:  Ignoring that most of the ICC’s work aligns with US interests

In attacking the ICC and its staff, and mischaracterizing the ICC as a “threat to national security” that creates a “national emergency,” the Order completely ignores that most of the ICC’s work is completely aligned with US-avowed interests.  Some current examples:

• This past week, Ali Kushayb surrendered on charges of crimes against humanity and war crimes committed in Darfur.  His trial would mark the first time that the crimes in Darfur committed by the Sudanese Government and Janjaweed militia can finally be prosecuted—crimes that then-Secretary of State Colin Powell, as well as President George W. Bush, declared “genocide.” 
• The trial of Dominic Ongwen closed in March of this year. Ongwen was a leader in the Lord’s Resistance Army, a group whose members were tracked by US Special Operations Forces in conjunction with the Ugandan military in the wake of ICC arrest warrants.
• The ICC is presently attempting to prosecute horrific crimes against the Rohingya by Myanmar’s military.  The US has imposed sanctions against Myanmar since 2018 for what it described as “ethnic cleansing” and, the day before issuing the Executive order, praised The Gambia for having “courageously brought a case before the International Court of Justice regarding crimes against the Rohingya.”

When the US is attacking the ICC, it is making all of the Court’s work more difficult, including the above.  Moreover, the authors would argue that in fact all the ICC’s work aligns with US interests, as there should be no US interest in furthering impunity.

Problem 3:  The claim that it is in US interests to implement sanctions against Court staff

The Order imposes potential sanctions freezing “all property and interests in property that are in the US” of “foreign persons” who “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any US personnel” or nationals of “an ally of the United States” without the consent of that country.  (Section 1, (a)(i)(A)-(B).)  (Given past US Government statements and recent reporting, the “ally” presumably means Israel, although it could be read more broadly.)  The Order also contains a travel ban on those covered and their “family members” (Sec. 4). 

This is part and parcel of (1) ongoing, thuggish and reprehensible behavior to threaten international civil servants and their families—previously denounced by, among others, the NY City Bar Association, the President of the ICC’s Assembly of States Parties, and the International Bar Association, and (2) part of an isolationist trend of disrespect for multilateral institutions and US commitments to its allies.  Former US War Crimes Ambassador Clint Williamson explains the attack on the ICC staff this way:

For daring to assert the ICC’s jurisdiction [over US nationals in Afghanistan], 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.

In attacking the ICC, the US is also disregarding the support for the ICC by one hundred and twenty-three states, including virtually all major US allies.  In fact, just last week, ten states serving on the UN Security Council—including Germany, France, and the UK—came out with a resounding endorsement of the work of the Court.  As Ambassador Williamson points out, “the United States stands virtually alone among liberal democracies in its rejection of the ICC.”  (See here for the American Bar Association’s statement of support for the ICC, and here for support from numerous NGOs.)

Problem 4:  The over breadth and consequent intentional chilling effect of including the provision of “material assistance”

The vaguely drafted Order is overbroad in many ways.  In Section 1(a)(i)(C) it covers any foreign person who has “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of investigating US nationals or nationals of a US ally without their consent (again, presumably, Israel, but possibly broader).

Because the Court works on numerous investigations and much of its work is not segregated by particular situation, this language could literally cover:

• A vendor who helps run the Court’s IT systems (as there is no IT just for the Afghanistan or Israel investigations)
• Nationals of States Parties that lobby their government to make financial contributions to the ICC’s budget (because the Afghanistan and Israel/Palestine investigations are part of the ICC’s general budget)
• Court translators that provide translation services on the Afghanistan situation (which was the subject of a hearing as recently as this past December), or related to Israel/Palestine (which is the subject of current motion practice related to jurisdictional questions)
• ICC Judges who rule in favor of proceeding in the Israel/Palestine investigation
• ICC Judges who make any ruling that assists the Afghanistan investigation in proceeding (if the ruling covers or includes US nationals in some way)
• ICC investigators collecting information related to either the Palestine/Israel Investigation (but only vis-à-vis Israeli crimes), or the Afghanistan investigation (but only related to US crimes).  (Investigations of Palestinians or Afghan nationals seem fine with the US.)
• NGO involvement with the Afghanistan investigation and Israel investigation, including even potentially in outreach work, or reaching out to victims to further victim representations
• Lawyers who serve as victims’ representatives in either investigation (but again, only if it furthers claims against Israeli or US nationals).

In other words, the Order is clearly ripe for legal challenge for being overly broad.

Problem 5:  The Order appears to capture US nationals who assist the ICC, diminishing any existing US role in ICC operations

The Order is also profoundly overbroad in that Sections 2 and 3 seemingly cover US nationals.  That is, Section 2 applies to ANYONE “making [a] donation” “to, or for the benefit of any person whose property and interests in property are blocked,” and Section 3 covers “the making of any contribution or provision of funds, goods, or services, by, to, or for the benefit of any person whose property and interests in property are blocked.  (Secs. 2-3, emphasis added.)

Because neither Section contains any explicit reference to “foreign persons” (as Section 1 does), these Sections arguably cover US nationals.

Who potentially could be covered?  US War Crimes Ambassador David Scheffer served as an amicus in the Afghanistan situation (as did Professor Trahan) – if they did so now, that could be construed to be covered under “services.”  Two US nationals and well-respected professors of international law serve as Special Advisers to the Prosecutor.  They could also be construed as covered, as could any US-based NGO that does advocacy related to the Afghanistan investigation, or Israel investigation—or potentially the ICC more broadly (because advocacy might not be investigation-specific).  Could a US national serve as a representative to victims in either of these situations as past US lawyers have done?  Could US law students continue to benefit from the experience of providing research support to ICC defense counsel, or by serving as interns at the ICC?  Can US law students continue with clinic work that is provided to the ICC?  Conceivably not.

While the Pompeo briefing suggested the Order applies to “foreign nationals,” its drafting suggests otherwise, and, either the error in drafting should be immediately rectified, or the Order is ripe for legal challenge for this additional reason.

Founding Sierra Leone Special Court Prosecutor David Crane writes:  “The wording in the Executive Order bears broad terms such as the problematic “material support” [as well as provide “services”] that will cause, at a minimum, a chilling effect on NGO’s, businesses, academics, and academic institutions, as well as others, who directly or indirectly do business, advise, or support the ICC in any manner.”

Problem 6:  The false claim that Russia is somehow manipulating the ICC

In Friday’s press briefing, US Attorney General Barr endeavored to undermine the Court’s credibility with what can only be described as a spurious claim.  Specifically, Barr alleged a US concern “that foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda.”  The same day, it was reported that a “senior Trump administration official” alleged “there is evidence that Russia is manipulating the ICC to discredit the United States and its allies.”  Given Russia’s equally strife-ridden relationship with the ICC, it is difficult to conclude that these allegations are anything other than part of a disinformation campaign, again aimed at those wholly unfamiliar with the Court.  As is well-known to any casual observer of international criminal justice, Russia is no friend of the ICC.  Like the US, Russia has “unsigned” the Court’s Rome Statute, declaring the ICC “one-sided and inefficient.” Notably, this rejection occurred after the Court began to investigate Russian nationals on the basis of territorial jurisdiction.  Since then, the Court has another such investigation under review, and Russia has announced its unwillingness to support any future Security Council referrals to the Court.  In other words, Russia is hardly poised to steer the direction of the ICC in any way whatsoever.   If anything, Russia benefits from US attacks on the Court.

Conclusion. 

In imposing sanctions vis-à-vis ICC staff, their families and beyond, the US is once against assaulting the rule of law and attempting to undermine international justice—a field the US arguably started by playing the lead role in the creation and prosecutions before the International Military Tribunal at Nuremberg.  There are massive numbers of victims around the globe that cling desperately to the pursuit of justice for horrific crimes against themselves and family members, and these victims place their faith in the ICC and its Prosecutor.  Rather than supporting those victims and the rule of law, the US is attempting to harm the ICC, all to ensure that no US or Israeli national is ever investigated or prosecuted.  Former US War Crimes Ambassador David Scheffer is right when he concludes: “The [US] argument essentially boils down to the contrarian view that U.S. forces and intelligence personnel can commit atrocity crimes [including torture well-documented by the US Senate Select Committee on Intelligence] inside any of the 123 states parties of the Rome Statute . . . without accountability before the ICC.”