Justice for all? Behind US targeting of international court.

Under a different administration, and despite its lack of membership in the court, the United States might be assisting the International Criminal Court in its investigation of an alleged genocide of Myanmar’s Rohingya minority at the hands of the country’s military in 2017.

The George W. Bush administration assisted the Hague-based court – created in 1998 to try cases of international war crimes and crimes against humanity – in investigating the genocide in Darfur, providing among other things satellite imagery to help locate suspected mass graves.

The Obama administration deployed special forces to Uganda in 2011 to help track down a leader of the Lord’s Resistance Army, wanted by the court for suspected crimes against humanity, and shared intelligence of interest for other investigations.

But that past cooperation has turned into virulent antagonism under President Donald Trump. Last week the U.S. went so far as to impose sanctions on two ICC officials, the court’s lead prosecutor and her chief of staff, over the international court’s willingness to investigate alleged war crimes committed by belligerents in Afghanistan – including potentially the U.S.

The financial sanctions cite ICC Prosecutor Fatou Bensouda for her “effort to investigate US personnel,” and ICC division chief Phakiso Mochochoko, for assisting the prosecutor.

Trump administration officials describe the imposition of sanctions most often used against terrorists, drug cartel leaders, and officials of hostile governments as a no-other-choice step aimed at preserving U.S. sovereignty and protecting American citizens from prosecution by a politicized global court answerable to no one.

“The United States is a strong advocate for justice around the world, but … [the U.S. has never] accepted” the ICC’s “jurisdiction over our personnel,” said Secretary of State Mike Pompeo last week in announcing the sanctions. “The ICC’s recklessness has forced us to this point and … cannot be allowed to follow through with its politically driven targeting of U.S. personnel.”

Moreover, Mr. Pompeo said he was acting to thwart the danger posed by the court to “our allies” – assumed to mean Israel, which has also drawn the attention of the ICC over alleged “war crimes” in the occupied West Bank and in Gaza.

Cooperation, in part

But for many experts in international criminal justice, the U.S. action is the work of a superpower bully that will do nothing to deter the ICC from pursuing the investigations it deems important – including of the U.S. Instead, they add, it will only alienate U.S. allies and major ICC funding members, like the Europeans and Japan, who could have been recruited to help steer the court from focusing on the U.S.

Some experts see the U.S. action in terms of international equity that predate the Trump administration. Despite longstanding issues with the ICC and never having joined the court and its 123 members, the U.S. has repeatedly been willing to cooperate with it and offer material support – as long, some U.S. critics say, as it was investigating weak, primarily African governments. But when the ICC decided it might add the U.S. to its docket – well, then, not so much.

Some nevertheless lament seeing the global power that established and led the postwar international justice system with adjudication of the Nuremberg and Tokyo war crimes trials now acting in ways they say risk encouraging bad behavior by despots and human rights violators.

“The U.S. has historically supported and even spearheaded international justice, from the Nuremberg and Tokyo tribunals [to] the war-crimes cases involving the former Yugoslavia and the Rwanda and Cambodia tribunals – but none of those cases ever risked that an American would be tried,” says Jennifer Trahan, a clinical professor of international law and human rights at New York University’s Center for Global Affairs.

“It’s extraordinarily hypocritical for us to take action like [the sanctions] as soon as that international justice system considers looking at U.S. actions. If the U.S. believes in international justice,” she adds, “then it can’t be immune from it.”

The U.S. has never been a big fan of the ICC, but Washington started developing a working relationship with the court once the White House decided the ICC could in some cases serve its interests.

John Bolton’s stance

Led by the anti-ICC fervor of John Bolton – who rose to become ambassador to the United Nations – the George W. Bush administration initially took steps to weaken and threaten the court. But the genocide in Darfur, and pressure from U.S. evangelicals to do something about it, prompted President Bush in his second term to see the ICC in a new light.

“In the Bush first term we even talked of invading The Hague if any Americans were ever jailed there” by the ICC, says William Burke-White, an expert on international law and institutions at the University of Pennsylvania in Philadelphia. “But then the administration comes under political pressure from the religious right to do something about the Darfur genocide, and it realizes the ICC can be a useful tool without putting American lives at risk” on the ground in Sudan, he adds.

That cooperation continued under the Obama administration. “There was very much a sense that, if the U.S. engaged with the court, we could shape its development and direction, even if still from the outside,” Professor Burke-White says.

At the same time, he adds, the court realized it couldn’t do its work without national governments – particularly wealthy ones like the U.S., with the intelligence, satellite, and technology capabilities the court lacks but needs to undertake complex investigations.

But that growing cooperation came to a screeching halt when two things happened, Professor Burke-White says: John Bolton joined the Trump administration in 2018 as President Trump’s national security adviser, bringing with him his goal of killing the ICC; and the ICC moved to investigate war crimes in Afghanistan, including those allegedly committed by the U.S.

“The court was coming under a lot of pressure to show that it didn’t just investigate weak governments in Africa, but was able to take on the powerful as well,” he says.

Christopher Ankersen, a former U.N. assistant to the Khmer Rouge trials in Cambodia, notes that the ICC was starting to be dismissed by weaker nations and frequent targets of the court, particularly in Africa, as a tool of Western powers more than a champion of true international justice.

“Countries within the African Union started equating the ICC with ‘northern justice,’” he says, “and this gave growing credence to the view that the ICC was a hypocritical institution,” says Professor Ankersen, now at NYU’s Center for Global Affairs.

Sanctions “counterproductive”

Even some experts in international law who agree with the U.S. position that the ICC’s case against the U.S. is “illegitimate” say they believe the Trump administration would have been much better off holding the sanctions fire.

Better for the U.S. to have instead made its case among its key allies who hold the ICC purse strings and influence ICC policy and focus, they say.

“My view is that the ICC investigations into the U.S. and Israel are illegitimate – and it’s a view shared by former Obama administration officials as well as hundreds of members of Congress,” says Orde Kittrie, a senior fellow of foreign policy at the Foundation for the Defense of Democracies and a professor of international law at Arizona State University’s Washington program. The U.S. has been “willing and able to investigate itself,” which he says by the ICC’s own rules precludes any ICC investigation.

But the sanctions have been “counterproductive,” he maintains, as they have alienated key U.S. allies who “share our concerns about the ICC’s operations and failures.”

“What we should have done is reached out to U.S. allies that provide more than 50% of ICC funding,” Professor Kittrie says, “and worked with them to encourage the court to return to its core mission.”

But instead, many experts worry that the Trump administration’s sanctions will only further tarnish the U.S. image as a beacon of international justice.

Noting that the U.S. singled out the ICC’s two senior African officials, NYU’s Professor Trahan says, “The racial optics are terrible given everything that’s going on in our country. Why did the administration go after [them],” she adds, “when there are other high-level people of other nationalities” in the prosecutor’s office?

“This is not the first time we’ve seen this tension between America’s international relations and international law,” says Professor Ankersen. “But to the extent this kind of action from the U.S. encourages others to follow the U.S. lead and disregard international law, it can only weaken U.S. interests.”