U.S. Secretary of State Michael R. Pompeo, U.S. Secretary of Defense Mark Esper, U.S. Attorney General William Barr, and National Security Advisor Robert O'Brien hold a press availability announcing sanctions on ICC staff in the Press Briefing Room, at the Department of State in Washington, D.C., on June 11, 2020. [State Department Photo by Freddie Everett ]
The US should lead by example and end its attack on the ICC

The US is often quick to make accusations about other countries’ violations of international law but refuses to hold itself to the same standards.

The current standoff between the United States and the International Criminal Court regarding the investigation into alleged crimes committed by U.S. military and Central Intelligence Agency personnel in Afghanistan is a lose-lose proposition. Rather than stymying the court’s efforts, the United States should affirm its global leadership position by allowing a free and impartial investigation by the court.

Back in March, after three long years of hard work and persistence by ICC prosecutor, Fatou Bensouda, the Appeals Chamber of the ICC authorized an investigation into possible human rights violations by U.S. military and CIA personnel in Afghanistan since May 1, 2003.

In response, the Trump administration issued an executive order that authorizes asset freezes and travel bans against ICC officials and others who may assist ICC investigations. The order, by attacking those duly empowered by an international institution to carry out a legitimate enquiry, shows a contempt for the very human rights and the rule of law with which the United States has so loudly demanded other states comply. Such an attack weakens global support for international norms, customs, and government accountability. It empowers aggressors and war criminals, and increases animosity against the United States, thereby escalating threats to U.S. national security.

While the United States has been an outspoken champion of human rights worldwide, and played a key role in creating the ICC, it has a long history of antagonism toward the court. From voting against the adoption of the Rome Statute in 1998 to refusing to submit the treaty to the Senate for ratification, U.S. administrations have consistently sought to limit the ICC’s jurisdiction, membership, and effectiveness. Congress has displayed its disdain for the court by passing the Foreign Relations Authorization Act of 2000, which bars financial support to the ICC, and the American Servicemembers Protection Act of 2002, which prohibits U.S. military aid to all countries that are parties to the court, unless they enter into agreements never to hand over U.S. nationals for prosecution.

Despite this history of animosity, the combative stance taken by this president in issuing the executive order represents a severe degeneration in relations. Never has the United States so actively thwarted an internationally mandated attempt to bring the perpetrators of war crimes to justice.

Admittedly, the ICC has no direct jurisdiction over U.S. citizens. In fact, the Senate refused to ratify the treaty because at the time Pentagon officials feared, rightly, that ratification would open the doors for legal action against U.S. troops. However, Afghanistan is a party to the Rome Statute, and offenses committed within its territory and against its citizens falls under the jurisdiction of the ICC, regardless of the nationality of the perpetrator.

Interestingly, despite its refusal to ratify the Rome Statute, the United States has acknowledged the legitimacy of the ICC. At a U.N. Security Council meeting in 2011, then-U.S. Ambassador Susan Rice voted to refer the then-escalating situation in Libya to the ICC. In 2013, the United States facilitated the transfer of Bosco Ntaganda, former leader of a rebel group in the Democratic Republic of Congo, to the ICC. And in January 2015, U.S. officials assisted in the transfer of senior commander of the Lord’s Resistance Army Dominic Ongwen to the ICC to stand trial for human rights abuses committed in the Central African Republic. In a complete reversal, the U.S. is now targeting key members of the ICC for performing these same duties.

If the United States seeks to uphold a rules-based international order, it must end its exceptionalism regarding international norms and customs. It is not only unseemly, but actually offensive to assert that the U.S. “is uniquely virtuous in word and in deed,” as one critic noted, or that its use of power can be unbounded since it is purportedly profoundly moral. While ratification of the Rome Statute would be the ideal solution to ongoing tensions, a good starting point for the repair of the relationship would be civility, due process, and the active desire for the United States to honor multilateral treaties. This would require a good faith consideration of the allegations against U.S. servicemembers and the legal and political implications of participation in the enquiry, as opposed to the stringent and very antagonistic position currently in play.

It is time for the United States to live up to ideals that it has so eagerly applied to other countries — particularly China and developing countries — where there have been incidents of human rights abuse. The hardline stance taken by the Trump administration against legitimate ICC officers in their pursuit of justice leads many countries to wonder why the United States should be granted an exception to the rules that have ostensibly guided much of its foreign policy.

The United States would have much to gain by taking responsibility for its action and holding itself to global international standards. By welcoming a genuine, fair, and transparent enquiry into whether there were human rights abuses committed by U.S. military and CIA personnel in Afghanistan, the United States would send an unfaltering message to the world that it holds itself to international norms and standards. Allowing the investigation to proceed would make it clear that the it is a reliable and accountable partner that does not tolerate impunity for war crimes. Such a position would encourage other countries to accept the jurisdiction of the ICC and enable reconciliation, restitution, and recovery from wars that impose an ever-growing toll on innocent civilians.

Already 67 countries have signed a joint letter affirming support for the ICC in response to the U.S. executive order. Some of these countries are key U.S. allies, including France and Canada. It would be reckless for the United States to engage in actions that would strain its relationships with allies who are ICC member countries and have publicly declared their support for the court. The joint letter suggests that in a U.S.-ICC tussle, the United States should not expect to count on the support of its allies who are ICC member countries.

In the current global system where multilateral cooperation is fast disintegrating and global leadership is in flux, the ICC remains an important standard-bearer and forum for ensuring that all countries are held to the same set of rules and expectations regarding respect for international law and treatment for non-combatants. It would be reckless for the United States to engage in actions that would strain its relationship with allies who are ICC member countries.

The next administration should consider a rescission of the current executive order against ICC officials. This should then be followed by a congressional inquiry into the legal and political implications of a fair and unimpeded investigation into the alleged war crimes. A congressional inquiry would allow a thorough bipartisan discussion on the issue but more importantly, it would allow the American public to have a say on the issue through their elected representatives in Congress.