Trump and the ICC:A Perpetual Feud
Analysis by Clara Mendelek, Contributor
June 30th, 2020
“We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” John Bolton, September 2018
On June 11, 2020, President Trump issued an Executive Order on “Blocking Property of Certain Persons Associated with the International Criminal Court.” Yet, this comes as no surprise, and was long overdue, with America’s repeated attacks on the ICC throughout the years.
America’s war in Afghanistan is, up until now, its longest and has been going on for over eighteen years. It has led to many accusations against the United States of America of inhumane operations implemented in secret, together with growing suspicions about underground detention facilities set up by the CIA in Afghanistan and other countries. Subsequently, the Chief Prosecutor of the International Criminal Court requested an investigation in November 2017 into these allegations.
The Tribunal of the ICC investigates and tries suspects related to war crimes, crimes against humanity, and genocide. It holds accountable criminals of horrific atrocities and provides justice and defense to the victims in addition to averting future abuses. In 2018, National Security Advisor John Bolton made threats against the International Criminal Court in an attempt to silence it, by threatening judges and prosecutors with putting them on U.S. criminal trials as well as imposing a travel ban and financial sanction on them. He explains, “We are a democratic nation with the most robust system of investigation, accountability, and transparency in the world. We don’t need the ICC to tell us our duty or second-guess our decisions.”
During a press briefing in September 2018, Press Secretary Ms Sanders said that the potential of the ICC opening an investigation into U.S. soldiers in Afghanistan is considered by the White House as a threat to American sovereignty. If the tribunal proceeds with the investigation, the White House would have to follow through with Bolton’s previous threats.
The United States was never content with the ICC’s presence and influence on international politics, always warned against the body, and never ratified the Rome Statute that established the ICC in 2000, even withdrawing its signature in 2002. The Trump administration claims it has strong reason to believe the prosecutor’s office contains extreme levels of corruption and misconduct, yet presenting no evidence to back up the claim. The administration insisting that the ICC is unchecked. The administration sees the ICC as dangerous for seeking to investigate allegations of torture, making U.N. officials even more suspicious and concerned over the gravity of the crimes against humanity performed in Aghanistan in the last seventeen years. The tribunal said that the U.S.’ resistance “constitutes an escalation and an unacceptable attempt to interfere with the rule of law and the Court’s judicial proceedings.”
This wasn’t the Trump administration’s first time going against one of the U.N. organs.
In June of that same year, Nikki Halley, The U.S. Ambassador to the U.N. , announced the withdrawal of the United States from the Human Rights Council in opposition of its recurring denunciation of the treatment of Palestinians by israel. This makes the country the first to ever withdraw from the council, and joining Iran, North Korea, and Eritrea as the only nations not participating in its proceedings. This decision is based on the U.S.’ claims that the Human Rights Council is hopelessly compromised and that its bias against israel is too much to ignore.
This withdrawal is reminiscent of their withdrawal from UNESCO in 2017, in protest of the organ’s anti-israel bias. It is important to note that UNESCO facilitates and promotes literacy and scientific education, namely by training Afghans how to read and write as well as by reporting the negative impacts of climate change. Both of these actions go against President Trump’s agenda because they would educate people about their rights and their duties, arguably. In particular, education concerning the rights of Aghan people, which would make them aware of, and incite them to take a stand against the atrocities they are facing due to U.S. intervention.
Bolton also threatened to cut U.S. fund support to the Office of the UN High Commissioner for Human Rights, an organ that keeps track of rights violations worldwide and reinforces the work of independent human rights experts. This shows a pattern of the administration having hostility towards international organizations and agreements that it finds disagreeable, and thus pulling away from the aforementioned. It reveals an obvious effort to intimidate and limit the effectiveness of the work of prosecutors and advocates defending and preserving the rights of victims of important human rights abuses. It also shows how far they are willing to go in order to elude accountability for their actions. It is a threat to multilateralism.
Acknowledging the opposition found by many nations against investigations carried out by the ICC, no nation has gone to such length to ensure allegations against it won’t be further investigated. President Trump presents unprecedented tactics; threatening individuals and organizations on the behalf of a Western democracy. Congress went as far as passing the American Service-Members’ Protection Act (ASPA), referred to as “The Hague Invasion Act”, in 2002. This law grants the President authorization to use all means deemed necessary, including force, to protect service members and armed forces of the US’s allies from the prosecution of the ICC. It would also prohibit further cooperation between the Tribunal and the United States.
The United States’ elaborate scheme uses the refusal to cooperate, on the basis that without its cooperation, and without allowed entry of ICC members in US territories, no trial can take place. It acknowledges the role of ICC as a last resort, where the court “seeks to complement, not replace, national Courts”. Following the US’s logic, the ICC finds itself powerless without permission.
However, John Bolton denounces the extent of ICC’s illegitimate power over nations around the world in a speech to the Federalist Society. He declared that the ICC “claims ‘automatic jurisdiction’, meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.”
As a matter of fact, this is a misinterpretation of the Rome Statute. It actually uses the principle of universal jurisdiction, which allows states to prosecute criminals who are on their territory, despite their nationality and the place(s) of the crime(s) they have committed. Since both Palestine and Afghanistan are parties to the ICC, crimes committed on their territories will be subject to jurisdiction. Therefore, countries like the US cannot evade ICC probes just because they are not members. This principle throws away all efforts made by the administration to cut cooperation between the two bodies.
The investigation at hand would involve crimes executed since 2003 by the Taliban, Afghan forces, and the United States, as well as those committed by civilians and military leaders who upheld the illegal tortures. The inquiry would also include secret “black sites” found in Poland, Romania, and Lithuania (members of the ICC) where the CIA allegedly conducts operations of torture and rape.