Reject the Dictator’s Playbook: The Importance of Civil Society and States Supporting the ICC Against Threats by the U.S.

[Jennifer Trahan is a Professor at the NYU Center for Global Affairs.]

While hostility by the current administration against the International Criminal Court (“ICC”) commenced already a few years ago, the opening of the Afghanistan investigation this past spring has reignited it.  Yet, a showdown between the US and ICC—particularly ill-timed during the COVID crisis—benefits neither.  The US should refrain from making threats against ICC staff and their families, and should comport with an appropriate level of dignity and decorum in its interactions with a judicial institution, even one to which it is not a party. 

As Beth Van Schaack details in her post on Opinio Juris, the US has flip-flopped in its relationship with the ICC during the recent US administrations, with Republican administrations being more hostile and the Democrats more favorable.  Why this should be is not readily apparent as there should be bipartisan support for pursuing prosecutions of core atrocity crimes such as genocide, crimes against humanity, and war crimes.  There are some examples of such bipartisan support, such as the US Genocide Prevention Task Force chaired by former US Secretary of State Madeleine K. Albright and former (Republican) Secretary of Defense William Cohen.

The relationship of the US to the ICC has been at a low point during the current administration.  Hostility first manifested with remarks of then National Security Adviser John R. Bolton, who threatened to ban ICC judges and prosecutors from the US, to freeze their assets and prosecute them, and do the same for any “company or state that assists an ICC investigation of Americans.”  This hostile stance was then reiterated at the United Nations by President Trump.  On March 15, 2019, Secretary of State Pompeo announced the imposition of travel bans, which deprived ICC Prosecutor Fatou Bensouda of her visa to travel to the US.  This past spring, on the day the ICC Appeals Chamber announced the opening of the Afghanistan investigation, Secretary Pompeo stated that the Administration would take “all necessary measures” to shield U.S. nationals from investigations, derogatorily referring to the ICC as a “so-called court.”  And, on March 17, 2020, Pompeo threatened two ICC staffers by name, as well as those working on the Afghanistan investigation and their families.

Such threats are exceedingly problematic for a host of reasons, and to threaten ICC staff by name and family members seems downright thuggish, as if taken directly from a dictator’s playbook.  It is the kind of behavior one would expect from authoritarian regimes opposed to investigating core atrocity crimes—it is alarming when the US places itself in such company.

The US is also setting problematic precedent that some US allies appear all too willing to follow, with Israeli Prime Minister Benjamin Netanyahu recently calling for sanctions against the Court and those working for it (“its officials, its prosecutors, everyone”).  (Israel is not an ICC State Party.)  And, the UK, a Rome Statute State Party, recently proposed legislation that would create a “‘presumption against prosecution’ for members of the United Kingdom armed forces accused of crimes, including torture, committed overseas more than five years earlier.”  Burundi, which has withdrawn from the Rome Statute, also “rejoice[d]” in response to Pompeo’s statements. It is not coincidental that there are ICC preliminary examinations related to Israeli conduct in the Palestinian territories, UK conduct in Iraq, and an investigation as to crimes in Burundi.  (The proposed UK legislation would not necessarily “help” the UK with its preliminary examination, as the law appears to render the UK largely “unwilling” and “unable” to prosecute, making the situation ripe for ICC prosecution; yet, the legislation would deliver a troubling statement about the permissibility of blocking domestic war crimes prosecutions.)

Threats to a judicial institution also carry a clear reputational cost to the US—it appears as if the US is insisting that it is above the rule of law.  Another cost is to the rule of law itself, both international and domestic, as the US has in fact pursued very little accountability in response to its widespread torture debacle, despite aspects of it having been well-documented by the U.S. Senate Select Committee on Intelligence. 

Last week, the New York City Bar Association, which counts 24,000 lawyers among its members, took an important stand against US opposition to the ICC, re-articulating its support for the ICC.  I was privileged to be among the drafters of the statement.  The Bar Association denounced the threats made by Secretary of State Pompeo and called on US officials to refrain from making such threats and lift travel restrictions against ICC personnel.  The City Bar Association’s statement, inter alia, points out:

First, the U.S. has every interest in ensuring that violations of the federal torture statute or similar violations under the Uniform Code of Military Justice are prosecuted. The U.S. adopted these laws to prevent and punish heinous crimes and to promote order and discipline within its armed forces. 

Second, under the “complementarity” regime in Article 17 of the Rome Statute, the ICC is a court of last resort. Consequently, any country can avoid ICC proceedings by conducting its own investigations and – if warranted – prosecutions. Rather than trying to obstruct the work of the ICC, the U.S. should commit to thoroughly investigating and, where justified, prosecuting cases related to torture, thereby precluding such cases from appearing on the ICC’s docket. 

Third, U.S. efforts to obstruct the work of the ICC have backfired in the past. When the George W. Bush Administration launched a campaign to obtain so-called “Article 98” or “Bilateral Immunity Agreements,” some countries that lost U.S. military assistance by refusing to enter such agreements turned instead to the People’s Republic of China for assistance. 

The Bar Association’s statement also highlights the hypocrisy of Secretary Pompeo’s stressing in his March 2019 remarks past US support to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, but then appearing to posture itself above the rule of law when US nationals are potentially implicated in crimes. 

The Association’s position is not in isolation.  The President of the ICC’s Assembly of States Parties, has issued a statement reaffirming unwavering support for the ICC, as has the International Bar Association, and, significantly, Benjamin Ferencz, David Scheffer, David Michael Crane, Stephen J. Rapp, Clint Williamson, and Todd Buchwald in a joint statement.  (Benjamin Ferencz is particularly well-positioned to write, having served as Chief Prosecutor for the U.S. Army at the Einsatzgruppen Trial, 1947-1948.)  Civil society has also condemned US government attacks against ICC officials and their families, as have various individuals (Beth van Schaack, Leila Sadat, and others).  All these statements show the importance, as Sierra Leone Special Court founding Chief Prosecutor David Crane often reminds us, of “speaking truth to power.”

However, noticeable silent are the States that comprise the Rome Statute’s 123 members.  While the world is understandably distracted by the current pandemic, States need to stand together to support the judicial institution they created with great fan-fare at Rome.  The idealism that moved states then must not be forgotten, and States must remember the truly momentous nature of their endeavor—one that, admittedly, has also at times faced internal difficulties.  Yet, States recently expressed their determination to strengthen the ICC’s operations by initiating an Independent Expert Review, which is being ably chaired by former ICTY and ICTR Prosecutor Richard Goldstone.  As an impressive number of NGOs have argued in a recent group letter sent to all States Parties, it is now also time for ICC States Parties to find their voices and support the ICC against the threats by the US. 

One can also hope that under a new Administration the US will remember its support for multilateral engagement and the rule of law, and renew its commitment, at minimum, to constructive engagement with the Court.