The International Criminal Court Goes Too Far

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The U.S. government’s battle with the International Criminal Court reached a fever pitch Thursday morning, when the president issued an executive order subjecting its staff to visa restrictions and asset freezes. Since 2017, the ICC has investigated U.S. treatment of detainees in Afghanistan and CIA detention sites located in Lithuania, Poland, and Romania, alleging “acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence.” Although the ICC’s Pre-Trial Chambers denied a request to open a formal investigation into these allegations in 2019, ICC prosecutor Fatou Bensouda won an appeal from the court’s Appeals Chamber to begin one in March.

U.S. officials have variously regarded the ICC with skepticism or treated it with downright hostility. But that ruling, which kicked off the first ICC investigation that could conceivably result in the arrest and prosecution of American citizens by the international tribunal since its inception in 1998, was met by a furious response from Washington. Secretary of State Mike Pompeo called the court “an unaccountable political institution masquerading as a legal body.” As it turns out, there is broad political agreement on this point: U.S. policy toward the court reflects a longstanding bipartisan consensus to protect Americans from its reach.

President Bill Clinton signed the Rome Statute — the treaty that established the court — in 2000. In his statement announcing the signing, he warned his successor not to submit it to the Senate until it was clear that the ICC would not claim jurisdiction on the citizens of states that have not ratified the treaty. His successor took that advice and ran with it. The Bush administration “un-signed” the Rome Statute and inked bilateral treaties to protect Americans from extradition to the ICC. Congress matched him, passing the American Service-Members’ Protection Act, which authorizes the use of force to rescue U.S. personnel detained by the court. Even the Obama administration, which attended some ICC meetings and cooperated with the court on certain matters, declined to re-sign the Rome Statute and to rescind the bilateral treaties that protect Americans from extradition.

All of this is to say that widespread bipartisan skepticism of the ICC is a rare point of agreement in American politics. The Trump administration’s decisions to end American participation in multilateral agreements, such as the Paris Climate Accord and the Iran nuclear deal, and in various UN bodies, have provoked countless partisan brawls about U.S. global engagement. And accusing an unaccountable international organization of compromising American sovereignty sounds like one of Trump 2016’s greatest hits. The administration’s opposition to the ICC is different, though. In May, dozens of senators and more than 250 representatives from both parties wrote to Pompeo, calling for him to protect Israel from a potential ICC investigation. They expressed concerns over the court’s use as a political instrument.

So, while the European Union’s top diplomat, human rights watchdogs, and the court itself denounced the move, there was minimal backlash to the president’s executive order at home. Congressional Democrats remained largely silent about it Thursday.

Perhaps this is because, as Clinton worried it would, the ICC has far exceeded its mandate, which is to step in when states are “unwilling or unable genuinely to carry out such investigations or prosecutions.” Bensouda has pushed forward with her investigation despite numerous instances in which U.S. government entities have punished the perpetrators of the crimes at the core of her inquiry. Her 2017 brief to the court finds these cases insufficient because the United States has not provided appropriately detailed information and because there has been no criminal prosecution of high-level officials for the alleged crimes. In essence, the ICC wants to second-guess the U.S. government on the basis of inquiries and prosecutions that the U.S. has already carried out.

The ICC prosecutor, in other words, has worked hard to turn a redundant investigation arguably unjustified by the court’s rules into one of its major initiatives. There are some important motivating factors here. For one, the court has long faced pressure from those angry with its tendency to pursue cases in Africa, and in 2017 the African Union passed a resolution calling for its members to withdraw from the court. The Heritage Foundation’s Brett Schaefer observes that the court started to look into cases with a more diverse geographic dispersion, with the Philippines as one example. And, he notes, the court has also spent “a huge amount of resources for relatively small impact.” With a budget of some $2 billion since its founding, its work has resulted in just eight convictions and four acquittals. The court’s legitimacy rests on notching some big wins.

The ICC purports to impartially uphold the law, but its proceedings are not immune from political considerations. The investigation into U.S. conduct runs afoul of the court’s own guidelines in service of its institutional ambitions. Thursday’s executive order forcefully responds to the ICC’s jurisdictional overreach. It seems only sensible that the United States should not accept the proceedings of international organizations it has not joined.