U.S. President Donald Trump signed an executive order on Thursday allowing sanctions to be imposed on International Criminal Court officials who try to investigate alleged U.S. war crimes in Afghanistan.
Trump’s unusual executive order declares a “national emergency” in an effort to shut down the “threat” of prosecution by the ICC, based in The Hague, Netherlands, and “its illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies.”
It authorizes economic and travel sanctions against any staff with the world’s first permanent war crimes tribunal who might try to investigate U.S. personnel without White House consent. Their financial assets would be frozen, and their immediate relatives would be barred from entering the United States.
The ICC ruled unanimously in March to allow its chief prosecutor, Fatou Bensouda, a Gambian lawyer and maritime law expert, to launch an inquiry into whether war crimes were committed in Afghanistan by the Taliban, Afghan military or American-led forces going back to almost 18 years ago.
The ICC’s actions would infringe on U.S. sovereignty and national security, Trump asserted in an order posted on the White House’s website. The U.S. action against the ICC expands Trump’s hostility towards multilateralism. He has withdrawn the U.S. from the U.N. Human Rights Council, UNESCO, the Paris Agreement on climate change, the Iran nuclear deal, the INF Treaty on nuclear arms and Open Skies Treaty.
“I therefore determine,” he said in the order, “that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.”
The decision was announced at a State Department press briefing with the top U.S. diplomat, Secretary of State Mike Pompeo, along with Defense Secretary Mark Esper, National Security Adviser Robert O’Brien and Attorney General William Barr.
They also announced plans to counter-attack by launching a U.S. investigation into the ICC for alleged corruption. Pompeo accused the ICC of launching an “ideological crusade against American service members” that would deny U.S. personnel their right to a fair and speedy trial.
“We cannot, we will not stand by as our people are threatened by a kangaroo court,” he told the press briefing in Washington. “Absent corrective action, we can expect the ICC will continue its present, reckless course.”
United Nations and European Union officials expressed dismay at Trump’s decision.
“For sure this is a matter of serious concern because we as the European Union are steadfast supporters of the International Criminal Court,” European Commission Vice President Josep Borrell, the E.U.’s foreign policy chief, told reporters.
“The court has been playing a key role in providing international justice and addressing the gravest international crimes — it is a key factor in bringing justice and peace,” he said. “It must be respected and supported by all nations.”
Stéphane Dujarric, spokesman for U.N. Secretary-General António Guterres, said the world body has “taken note with concern” for Trump’s sanctions against the court.
U.S. hostility to the ICC
Human Rights Watch criticized Trump’s executive order, saying it is “nothing unusual” for the ICC to exert jurisdiction in Afghanistan, one of the court’s member nations. It noted that Americans who commit crimes abroad are already subject to the jurisdiction of foreign courts.
“Asset freezes and travel bans are for human rights violators, not those seeking to bring rights violators to justice,” Richard Dicker, the New York-based international organization’s international justice director, said in a statement.
“By targeting the ICC,” he said, “the Trump administration continues its assault on the global rule of law, putting the U.S. on the side of those who commit and cover up grave abuses, not those who prosecute them.”
The United States signed the Rome Statute, an international treaty that took effect in July 2002 and underpins the ICC’s authority, but the U.S. Senate never ratified it. Afghanistan joined the court in May 2003.
Bensouda, who has been ICC’s chief prosecutor since June 2012 and ICC deputy prosecutor since 2004, asked ICC judges for permission to open the investigation in late 2017. Before joining the world’s top war crimes tribunal, she was a legal adviser and trial attorney at the International Criminal Tribunal for Rwanda.
The ICC’s preliminary examination of allegations of serious international crimes in Afghanistan began in 2006, but Bensouda asked to widen the scope into alleged war crimes committed by Taliban and Haqqani network militants, Afghan national security forces, and U.S. forces and intelligence in Afghanistan since May 2003.
Bensouda’s request for an investigation includes an examination of U.S. personnel who are alleged to have used torture and illegally imprisoned others in Afghanistan.
She said U.S. military and intelligence agencies, using secret CIA facilities in Poland, Romania and Lithuania, apparently “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”
The Trump administration revoked a U.S. travel visa for Bensouda in April 2019 in an effort to block the ICC from investigating Americans. She was told she could only visit the United States for “official U.N. purposes.”
The ICC, which is not part of the United Nations system, serves as the first permanent international criminal court that can prosecute the most heinous crimes under international law: crimes against humanity, genocide, war crimes and aggression. It has 123 member nations that accept its jurisdiction.
The U.N. Security Council can refer a matter to ICC prosecutors for investigation, even in a country that does not recognize its jurisdiction, but the court lacks any police force or means of enforcement without cooperation from governments.