Trump’s chilling blow to the ICC

The International Criminal Court in The Hague has cleared the way for an investigation into possible war crimes in Afghanistan.

Akila Radhakrishnan & Elena Sarver

Foreign Policy  /  June 17, 2020

With International Criminal Court sanctions, the U.S. president’s hypocrisy hits a new low.

Last week, U.S. President Donald Trump signed an executive order imposing sanctions on several individuals associated with the International Criminal Court (ICC). The order is the latest salvo in an ongoing battle against the ICC, which the Trump administration has long sought to undermine in order to avoid accountability for itself and its allies. The move is also part of a broader disengagement with the multilateral system.

The executive order, and Secretary of State Mike Pompeo’s accompanying statement invoking the “nightmare” of an American service member facing justice abroad, exemplifies the kind of “America first” thinking at the core of the Trump administration’s foreign-policy ideology. In this case it was coupled with another deeply flawed message: American exceptionalism when it comes to human rights. As David Kaye wrote in this publication last week, “[t]he phrase ‘human rights’ in American policy has almost always referred to what others violate, and it rarely comes back to what the U.S. government is obligated to protect at home. The United States may use the language of human rights law to condemn official abuses against minorities worldwide, or violence against protesters in Venezuela, Hong Kong, Iran, and elsewhere, but it bristles when those same norms are deployed against it.” This hypocrisy is particularly egregious because the United States has been at the center of the formation of the human rights system since its start.

When it comes to human rights and international law, and especially institutions of accountability such as the ICC, exceptionalist ideology is particularly problematic. Although this administration may believe otherwise, no individual or government is above the law—a principle international institutions such as the ICC play a critical role in upholding. And as a court of last resort, where cases are prosecuted when states are unable or unwilling to do so themselves, the ICC may be the only available process for holding perpetrators of crimes to justice. These institutions and their staff need global support, not baseless personal attacks on their finances and movement. To be clear, the ICC isn’t a perfect institution; however, this executive order takes a destructive approach, while forgoing a range of constructive engagement.

The administration’s opposition to the court is largely predicated on two factors. First is the ICC’s ongoing investigations into crimes committed in Afghanistan, including those that may have been committed by U.S. soldiers (and potentially involving Pompeo himself). Second is the ICC’s preliminary examination into crimes committed in the Palestinian territories by Israel. The administration contends that these investigations are illegitimate because neither the United States nor Israel has ratified the Rome Statute that empowers the ICC. But that is a misinterpretation of the statute—which explicitly permits the exercise of jurisdiction when crimes are committed by non-parties on the territory of a state that is. (Both Palestine and Afghanistan are parties.) In other words, a state cannot escape accountability for crimes committed outside its territory just because it hasn’t signed up to the ICC.

Accountability is something the Trump administration has long sought to avoid, and this stance has been paired with a wholesale retreat from the human rights framework. In 2018, the administration withdrew the United States from the United Nations Human Rights Council. In 2019, Pompeo announced funding cuts to the Organization of American States based on a misrepresentation of a U.S. law that restricts lobbying on abortion. Late last month, in the midst of a global pandemic, Trump announced the United States would sever ties with the World Health Organization.

The Trump administration’s rejection of the multilateral and international framework is also evident in the State Department’s Commission on Unalienable Rights, which was formed last year by Pompeo and seeks to ground the human rights landscape “in our nation’s founding principles.” (This includes an effort to narrow protections for sexual and reproductive rights and for LGBTQI individuals, against which our organization, along with others, has sued.) This month, Reps. Jamie Raskin and Joaquin Castro wrote a letter to the commission raising concerns that it “threatens to undermine the responsibility of the Department of State to comply with international human rights treaties, including those approved by Congress, such as the International Covenant on Civil and Political Rights.” In other words, the administration’s attempt to single-handedly redefine human rights, not only for the United States but also globally, is arrogant at best and dangerous at worst, potentially causing harm to those in the United States.

To be clear, these evasions of accountability aren’t limited to the Trump administration—Presidents Bill Clinton, George W. Bush, and Barack Obama all declined to become a party to the ICC. But the disdain for accountability, particularly when it comes to charges of corruption against its own officials, has certainly risen to new levels under this administration. The trend thus lays bare the need for institutions like the ICC—not only to bring justice for international crimes in places like Sudan, Myanmar, and Libya, but also in the United States.

And yet, the United States has consistently kept or taken itself out of the international frameworks. This is to the detriment of its population, limiting their recourse when the government violates fundamental rights and obligations under international law. The United States’ failure to ratify the Rome Statute can also be situated against the non-ratification of a range of important human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women, and the U.S. withdrawal from the general jurisdiction of the International Court of Justice—mechanisms that could force the United States to meet its international legal obligations.

The significance of such international institutions has become especially clear in recent weeks. The families of George Floyd, Breonna Taylor, Michael Brown, Jordan Davis, and Philando Castile, along with over 600 organizations from 60 countries, called on the Human Rights Council (the very body the Trump administration withdrew from) to create an independent inquiry into racist policing in the United States and the use of force against peaceful protesters and journalists. The letter calls for the inquiry to not only provide recommendations on how to ensure that the United States upholds its human rights obligations, but also on what steps are necessary to ensure accountability for serious human rights violations. (Heeding this call, the Human Rights Council is holding an urgent debate on this issue this Wednesday.) This is a case in point that the United States needs international institutions like the ICC and United Nations to hold it accountable when its own government refuses to do so. Without those, “America first” may be putting America’s people last.

Beyond the impact at home, Trump’s executive order against the ICC could have far-reaching international implications.

The order itself only creates an enabling framework for economic and travel-related sanctions, and it is unclear how or against whom it may be deployed. But by casting a wide net over who and what types of activities can trigger sanctions, the order may create a chill around the ICC’s work and anyone who works with it in any number of ways, including though material support, providing expertise in ongoing investigations, staff, and potentially even victims and witnesses, as well as their counsel.

Further, the executive order threatens to stall the global fight against impunity for the most serious international crimes: war crimes, crimes against humanity, genocide, and aggression. Much like how other countries that have long been sceptical or reluctant to follow international human rights norms have found new cover in the United States’ regressive leadership on issues such as reproductive rights, this attack on the ICC may embolden other countries seeking to shirk responsibility for the commission of atrocities. (Myanmar, for example, already constitutionally enshrines impunity for its armed forces and has similarly contested the ICC’s jurisdiction over crimes committed against the Rohingya minority.) The order may also damage the credibility of U.S.-supported efforts to create mechanisms and bodies for international justice, such as the ongoing investigation into crimes committed by the Islamic State.

The pursuit of accountability for these grave crimes is no doubt difficult and time-consuming, but, as the precedents of the Nuremberg tribunal remind us, it is deeply important. With the global rise in authoritarianism, it also couldn’t be timelier. Impunity is fundamentally a threat to the rule of law, both in the United States and abroad.

The Trump administration’s efforts to destroy the multilateral system that the United States built is arrogant, short-sighted, and dangerous.

It is time for the United States to take seriously and engage meaningfully with its international obligations. This is not merely an issue for conservative administrations, as even past liberal administrations have done little to embed human rights in the fabric of fundamental rights in the United States or hold accountable Americans who commit international crimes. Steps in the right direction would include the ratification of the ICC’s Rome Statute, as well as the non-conditional ratification and implementation of all fundamental human rights treaties, not a rapid retreat away from them.

The events of the last few weeks have brought into searing focus what widespread and systematic state violence against a country’s own populace looks like. In a powerful reminder of Martin Luther King Jr.’s call that injustice anywhere is a threat to justice everywhere, the world has risen up in its call for accountability for those who killed Floyd, Taylor, and Ahmaud Arbery. Whether crimes are committed by U.S. police officers in the United States or by U.S. soldiers abroad in Afghanistan, Washington and the public owe the same commitment to the pursuit of justice and accountability wherever it occurs. This should be what “America first” looks like.

Akila Radhakrishnan is the president of the Global Justice Center (GJC), an international human rights organization that promotes gender equality through the rule of law, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality.

Elena Sarver is a legal advisor at the Global Justice Center, where she works to ensure legal protection for sexual and reproductive rights and accountability for sexual and gender-based violence.