Why the Trump administration has such disdain for the ICC
Earlier this month, President Trump signed an executive order authorizing sanctions — a tool purportedly intended to punish bad actors — against International Criminal Court investigators, (and their immediate family members) involved in a probe into U.S. war crimes. Having dismantled any remaining good will towards what Secretary of State Mike Pompeo refers to as a “kangaroo court,” and unable to find refuge in the contrived legal defenses concocted by the Bush administration, President Trump opted for coercive sanctions.
The shock of America’s use of torture had already subsided by the 2014 release of the U.S. Senate Report on the CIA’s detention program. But the legacy of torture still represents the clearest example of the consequences of granting unfettered discretion to the president and a select few technocrats. More importantly, it offers a stark warning about the danger of a national security discourse that fetishizes technicalities and ignores reality.
The ICC’s prosecution argues that there is “a reasonable basis to believe that, since May 2003, members of the U.S. armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the U.S. authorities.”
The prosecution also asserts jurisdiction over the CIA’s global detention program. Similar allegations were previously investigated by the Senate Select Committee on Intelligence which published a 525 page document detailing a vast network of clandestine torture, including dungeons, mock executions, placing victims in coffin-sized boxes for days, and brutal murders.
However, America’s use of torture is not a sin confined to the shadowy world of spycraft, but one that was openly defended by academics in daily columns and glorified in Hollywood depictions of war. A decade of permissive torture paved the way for the moment when, in response to recent protests against what might be described as the public torture of a U.S. citizen, Secretary of Defense Mark Esper implored states “to dominate the battle space.”
The Bush administration’s infamous “torture memos” tackled the conundrum of America’s own prohibition of torture found in Section 2340 of Title 18 of the U.S. Code, which prohibits the infliction of severe physical or mental pain or suffering.
Judge and former Assistant Attorney General Jay Bybee argued that the definition was so narrow that most acts fell outside of it and prosecution under Section 2340A represented an unconstitutional infringement on presidential power.
A 2002 memorandum from John Yoo, then a Justice Department official, to General William Haynes II — which predated the Bybee memorandum — flatly rejected the applicability of the Geneva Convention to the Taliban or al-Qaida because he interpreted the Convention as restricted to civil war, since it covers armed conflict not of an international character.
One obstacle to lawfully sanctioned torture remained despite Bybee’s narrow reading of Section 2340A and Yoo’s outright dismissal of the Geneva Convention — the meaning of the word “severe.” Bybee found his answer in statutes defining an emergency medical condition for the purpose of providing health benefits and opined that severe pain must rise to the level of organ failure or serious impairment of body functions to constitute torture.
The language of torture itself was also sanitized. Military police “set favorable conditions” and interrogators playfully used “wallings” to describe the practice of slamming detainees into cement barriers. The beating that preceded and likely caused the death of one CIA detainee was described as a “rough takedown.” Collective torture methods fell comfortably within the umbrella of “enhanced interrogation techniques.”
The euphemizing of torture was not reserved to the intelligence community. In 2002, law professor Alan Dershowitz wrote that he believed most Americans would support a “loosening of tongues” in the case of a terrorist. Hollywood also normalized the perceived efficacy of torture in the minds of Americans. In Zero Dark Thirty, the 2012 Hollywood dramatization of the CIA’s hunt for Osama bin Laden, a tortured individual appeals to a CIA analyst for help to which she stoically replies “you can help yourself by being truthful.”
Proponents of torture including Bybee and Dershowitz placed an incredible emphasis on the importance of obtaining information quickly in the so-called “War on Terror.” Yet they never explained why expedient intelligence would be any less important in conventional warfare where it is universally agreed upon that the Geneva Convention protections apply. Literal and narrow interpretations of law sought to obfuscate international and domestic prohibitions on torture with poorly crafted legalese and statutes intended to help the severely ill were perversely interpreted to allow for torture.
These proponents also assumed without question that torture produces actionable intelligence. But most of the well-documented intelligence successes of the last two decades involve human innovation rather than degradation. The Senate report found that the information that led to bin Laden’s hideout was obtained from a courier before he was tortured. And Saddam Hussein was captured largely due to software that analyzed 62,000 relationships within the Baath party — not torture.
The very American assumption that Washington can operate in the international realm outside of the boundaries of international law is naïve from both a legal and policy perspective. For example, Section 2340 retains the language “severe physical or mental pain or suffering” borrowed from Article I of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and distinguishes this from “lawful sanctions” which demonstrates how international law and norms influence domestic law.
Further, it was Germany’s issuance of arrest warrants against CIA agents for the torture and wrongful detention of a German citizen, Khalid al-Masri, that ultimately led Secretary of State Condoleezza Rice to order his release, and in doing so tacitly admit that the U.S. was engaging in torture.
Opposition toward the ICC holding U.S. citizens accountable is not unique to the Trump administration. The American Service Member’s Protection Act and Article 98 agreements that prevent countries from turning over U.S. persons to international courts without consent help insulate Americans from prosecution. President Trump’s sanctions against ICC officials is simply a more brutish version of policies that already undermined multilateralism and accountability.
Criticism of the Trump administration’s latest misuse of sanctions is warranted so long as it does not distract from the larger issue. The legal arguments behind the torture memos can now be viewed as bunk. However, an approach to questions of national security that privileges detached legal debate, a myopic focus on technicalities, and a callous disregard for human life can found in everything from arms sales to when and how sanctions are applied. Sanctions may now represent the latest impediment to personal accountability, but they will not erase the truth behind the ICC’s investigations.
Leaders in Washington often preach global development, democratization, and increased representation from, for example, the Global South within international institutions. But these changes will bring calls for more equal accountability and Washington’s past support for torture is a reality that is seared into the minds of an entire generation of jurists, activists, victims, and future leaders alike.