US President Donald Trump lobbed a broadside attack Thursday against the International Criminal Court by authorizing economic sanctions and travel restrictions against court workers directly involved in investigating American troops and intelligence officials for possible war crimes in Afghanistan.
The executive order signed by the president marks his administration’s latest attack against international organizations, treaties and agreements that don’t hew to its policies. Since taking office, Trump has withdrawn from the Paris climate accord, the Iran nuclear deal and two arms control treaties with Russia. He has pulled the US out of the UN Human Rights Council and the UN Educational, Scientific and Cultural Organization, threatened to leave the International Postal Union and announced an end to cooperation with the World Health Organization.
“The International Criminal Court’s actions are an attack on the rights of the American people and threaten to infringe upon our national sovereignty,” White House press secretary Kayleigh McEnany said in a statement. “The ICC was established to provide accountability for war crimes, but in practice it has been an unaccountable and ineffective international bureaucracy that targets and threatens United States personnel as well as personnel of our allies and partners.”
The executive order authorized the secretary of state, in consultation with the treasury secretary, to block financial assets within US jurisdiction of court personnel who directly engage in investigating, harassing or detaining US personnel. The order authorizes the secretary of state to block court officials and their family members involved in the investigations from entering the United States. The ICC-related travel restrictions go beyond what the State Department issued last year.
McEnany said that, despite repeated calls by the United States and its allies, the ICC has not embraced reform. She alleged the court continues to pursue politically motivated investigations against the US and its partners, including Israel.
The ICC is currently considering whether to open a criminal investigation into suspected war crimes committed in the Palestinian territories. US Secretary of State Mike Pompeo warned the court last week of “consequences” if it moves forward with an investigation against Israel.
Neither the US nor Israel are members of the court and therefore reject the ICC’s attempt to exert criminal jurisdiction over their nationals.
“We are concerned that adversary nations are manipulating the International Criminal Court by encouraging these allegations against United States personnel,” McEnany said. “Further, we have strong reason to believe there is corruption and misconduct at the highest levels of the International Criminal Court office of the prosecutor, calling into question the integrity of its investigation into American service members.”
A senior administration official said the US believes the international court is a target of malign influence by Russia. The official, who was not authorized to publicly discuss the issue, said the administration believes Moscow is encouraging the court to investigate US personnel but did not provide further details.
The Hague-based court was created in 2002 to prosecute war crimes and crimes against humanity and genocide in areas where perpetrators might not otherwise face justice. It has 123 state parties that recognize its jurisdiction.
The United States has never been a member of the International Criminal Court. Administrations of both parties have been concerned about the potential for political prosecutions of American troops and officials for alleged war crimes and other atrocities. The US has extracted pledges from most of the court’s members that they will not seek such prosecutions and risk losing US military and other assistance.
However, ICC prosecutors have shown a willingness to press ahead with investigations into US service members and earlier this year launched one that drew swift US condemnation.
Human rights groups deplored the Trump administration’s move.
“The Trump administration’s latest action paves the way for imposing sanctions against ICC officials and demonstrates contempt for the global rule of law,” said Andrea Prasow, the Washington director of Human Rights Watch. “This assault on the ICC is an effort to block victims of serious crimes whether in Afghanistan, Israel or Palestine from seeing justice. Countries that support international justice should publicly oppose this blatant attempt at obstruction.”
Last year, after former national security adviser John Bolton threatened ICC employees with sanctions if they went forward with prosecutions of US or allied troops, including from Israel, Pompeo revoked the visa of the court’s chief prosecutor, Fatou Bensouda. Bensouda had asked ICC judges to open an investigation into alleged war crimes in Afghanistan that could have involved Americans. The judges initially rejected the request, but the denial was overturned after Bensouda appealed the decision and the investigation was authorized in March.
The appellate ruling marked the first time the court’s prosecutor has been cleared to investigate US forces, and set the global tribunal on a collision course with the Trump administration. Bensouda pledged to carry out an independent and impartial investigation and called for full support and cooperation from all parties. Pompeo called the decision “a truly breathtaking action by an unaccountable political institution masquerading as a legal body.”
The case involves allegations of war crimes committed by Afghan national security forces, Taliban and Haqqani network militants, as well as US forces and intelligence officials in Afghanistan since May 2003. Bensouda says there’s information that members of the US military and intelligence agencies “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence.”
Bolton and then Pompeo have said sanctions are necessary to prevent The Hague-based court from infringing on US sovereignty by prosecuting American forces or allies for torture or other war crimes. Pompeo said in May the US is capable of punishing its own citizens for atrocities and shouldn’t be subjected to a foreign tribunal that’s designed to be a court of last resort to prosecute war crimes cases when a country’s judiciary is incapable of doing so.
“This court has become corrupted and is attempting to go after the young men and women of the United States of America who fought so hard, and they did so under the rule of law in the most civilized nation in the world, the United States of America,” Pompeo said May 29 in a podcast hosted by the conservative American Enterprise Institute. “And they’re now suggesting somehow that our ability to, when we have someone does something wrong, our ability to police that up is inadequate and they think that the ICC ought to be able to haul these young men and women in.”
In that podcast, Pompeo also said: “They’re doing this not just to us, but to Israel, where they’re beginning to look into what took place in the West Bank. Again, it’s completely inappropriate. It’s completely inconsistent with international law. And it puts our young men and women at risk and it’s something President [Donald] Trump and our team aren’t going to permit to happen.”
Pompeo has long fought the ICC’s efforts to pursue investigations into cases where Americans or Israelis are involved. Last month, after a brief visit to Israel, he issued a formal statement reiterating Washington’s “longstanding objection to any illegitimate ICC investigations” into Israel and threatening that any attempt to assert jurisdiction over Israelis would “exact consequences.”
On April 30, Bensouda reiterated her position that Palestine is a state for the purposes of transferring criminal jurisdiction over its territory to The Hague.
It is now up to a pretrial chamber to rule on the matter. The three judges of that chamber — Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin — have no set deadline to hand down their decision but are expected to do so in less than 90 days.
Israel argues that Palestine is not a sovereign state and therefore cannot transfer criminal jurisdiction over its territory to the Hague. Prime Minister Benjamin Netanyahu has repeatedly denounced the ICC and declared thwarting a possible war crimes probe one of the new government’s top priorities.