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The Self-Defeating Executive Order Against the International Criminal Court

by Ambassador David Scheffer – June 12, 2020 (Just Security)

President Donald Trump’s Executive Order on Blocking Property of Certain Persons Associated with the International Criminal Court, issued on June 11, 2020, is a predicted and destructive reaction to the judgment of the ICC Appeals Chamber a few months ago to authorize the initiation of an official investigation of atrocity crimes in Afghanistan.  In those proceedings, which overwhelmingly concern crimes against humanity and war crimes since 2002 allegedly committed by the Taliban and Afghan National Security Forces, there are about 80 Afghans who were held in U.S. facilities in Afghanistan in 2003-2004 and at “black sites” in Lithuania, Poland, and Romania (some in 2002) where American personnel are accused of engaging in illegal conduct including torture and rape.

Afghanistan, Lithuania, Poland, and Romania are States Parties to the Rome Statute of the International Criminal Court (ICC) and allegations of atrocity crimes occurring on the territory of those countries fall within the jurisdiction of the Court. The question raised by the Executive Order is whether U.S. personnel involved in such actions on the territory of a State Party of the Rome Statute escape the jurisdiction of the ICC because the United States never ratified the treaty and thus is not a State Party. That’s the core issue as presented by Secretary of State Michael Pompeo, Defense Secretary Mark Esper, Attorney General William Barr, and National Security Adviser Robert O’Brien in unveiling the U.S. government’s new sanctions.

The argument essentially boils down to the contrarian view that U.S. forces and intelligence personnel can commit atrocity crimes inside any of the 123 states parties of the Rome Statute (including all but one NATO ally, every country of the European Union, all of South America, and much of Africa, East Asia, Central America, and the Caribbean) without accountability before the ICC. This view is especially precarious because the United States does not contest that those States’ national courts could prosecute U.S. defendants for such atrocity crimes, only that they can’t provide jurisdiction to an international court to handle such cases. One can imagine those countries are or will be under pressure to applaud the administration’s invocation of the U.S. government’s argument and, despite the impact on their own view of justice and even survival, they also be under pressure to acquiesce at least as a theoretical matter to any State that’s not party to the ICC committing atrocity crimes on their soil without recourse to international justice.

I know because I used to make this theoretical international law argument, grounded in the Vienna Convention on the Law of Treaties, on behalf of the U.S. Government many years ago. Today it holds very little credibility because of the character of the crimes at issue, the evolution of international criminal law, and the longstanding principle of criminal jurisdiction over one’s own territory.

The Executive Order

Pompeo previewed the administration’s sentiments when he denied ICC Prosecutor Fatou Bensouda a visa in April 2019 and then delivered his provocative statement on March 17, 2020, threatening action against two publicly named staffers (and their families) of Bensouda’s office. Criticism erupted, including a statement by former U.S. ambassadors and prosecutors and one from the New York City Bar Association.

It was a safe bet at the time that there was more to come, and so the Executive Order:

● Declares a national emergency because “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.”

The reference to “United States personnel” does not cover all U.S. citizens, but only “any current or former members of the Armed Forces of the United States, any current or former elected or appointed official of the United States Government and any other person currently or formerly employed by or working on behalf of the United States Government.” The latter could also theoretically embrace foreign nationals working for the U.S. Government and mercenaries hired by a federal agency to fight abroad. A comparable group of “personnel” is covered for U.S. allies that are not members of the ICC.

Among Washington’s 29 NATO allies, only Turkey is not an ICC member. Among the 18 major non-NATO allies and partners of the United States, half of them (Bahrain, Egypt, Israel, Kuwait, Morocco, Pakistan, Philippines, Taiwan, and Thailand) remain outside the ICC. It is significant that the Executive Order defines the national emergency as arising from a largely prospective and thus hypothetical threat, and only regarding personnel of a U.S. ally that is not a state party of the Rome Statute if the individual is being investigated without that state’s consent. The fate of the personnel of 28 NATO allies and nine major non-NATO allies that are party to the Rome Statute appear, in the view of the administration, to lead to no national emergency at all whatever the circumstances for U.S. national security and foreign policy. The key then is more narrowly a clash over sovereignty based on status as a non-State Party, not the criminal investigation of close military allies and partners otherwise.

● Freezes the assets of “any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General,” to have acted in any of the following ways: “to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute” any personnel of the United States or any U.S. ally without the state’s consent,” or “to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of” any of these ICC actions “or any person whose property and interests in property are blocked” under the Order, or “to be owned or controlled by” or “to have acted or purported to act for or on behalf of, directly or indirectly,” any person so blocked.

This constitutes a very broad sweep of coverage but it applies only to foreigners and only to ICC actions involving the covered “personnel.” That said, one should assume that Washington will apply this economic sanction as aggressively as it wishes and to interpret just about any foreigner’s association with relevant ICC actions or with those assisting the ICC in such activities to be problematic. The order penalizes any foreigner who would make contributions to or receive contributions from a person whose assets have been frozen. And it presumably would cover any amicus briefs filed by foreign lawyers or foreign civil society in relevant cases before the ICC. It is curious that Treasury Secretary Steven Mnuchin or his deputy was not on the podium alongside other agency heads at the June 11 announcement, as his agency bears much of the enforcement burden of the Executive Order.

● Suspends immigrant and nonimmigrant visas for the same aliens who meet the criteria for freezing of their assets, as well as their “immediate family members,” meaning spouses and children. Another important category of visa suspension is any ICC employee or agent who the Secretary of State determines “would be detrimental to the interests of the United States.” Interestingly, the Order does not require the latter individual necessarily to be working on or associated with the ICC actions covered by the Order and which are relevant to U.S. personnel or the personnel of U.S. allies that are not party to the Rome Statute. Rather, the Order establishes a blanket discretionary power to suspend a visa to any ICC staffer, judge, or agent. Yet, unless that ICC official or agent is engaged with an ICC investigation or prosecution that is relevant to the category of persons subject to the Order’s power to freeze assets, it would appear that ICC employee or agent’s immediate family members are not covered by the visa suspension.

Pushback

The ICC issued a statement responding to the Executive Order and emphasizing the Court’s independence and its rejection of political and economic pressure. Senator Patrick Leahy (D-Vt.) lamented, “The United States cannot profess to stand for accountability and refuse to be accountable itself, especially when it involves egregious crimes like torturing prisoners.” A large group of non-governmental organizations issued a critical statement, which includes an unassailable point: “At this fragile moment in our country and globally, the U.S. government must find ways to address its stated concerns without alienating other countries that have supported international justice or signaling to those who may face the scrutiny of institutions like the ICC that intimidation is an acceptable means of avoiding accountability.” The European Union’s foreign policy chief, Joseph Borell, reaffirmed support for the ICC.

As the first U.S. Ambassador at Large for War Crimes Issues, the head of the U.S. delegation to the United Nations talks establishing the ICC, and the individual who signed the Rome Statute on behalf of the United States on December 31, 2000, I have found much of the American resistance to the ICC, particularly in recent years, to be deeply troubling, particularly when the United States should demonstrate strength and credibility in the pursuit of international justice. The Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.

I know because I used to make this theoretical international law argument, grounded in the Vienna Convention on the Law of Treaties, on behalf of the U.S. Government many years ago. Today it holds very little credibility.

Points of Order

There are several points to consider in the days ahead.

First, accusations without evidence.

The Cabinet secretaries and National Security Advisor offered no evidence, other than the Appeals Chamber ruling to initiate the investigation, for what they accused the ICC of being or in danger of becoming. Their rhetoric was mostly hyperbolically-charged words of scant truth or meaning. No one has been indicted, and complementarity efforts – a.k.a. measures by which national institutions can pursue accountability and legally stave off the Court — have been woefully inadequate in Washington. The frequent charge of corruption at the Court simply lacks credibility, and journalists were given no opportunity to probe the officials’ understanding of these words. (They hastily left the podium without the courage to take questions.)

There are problems at the ICC, no doubt, that require fixing and an Independent Expert Review is currently working hard to improve the efficiency and efficacy of the Court. The American Bar Association’s Criminal Justice Section has weighed in with proposals. And some of the judges might want to re-think their longstanding claim to higher compensation, a frequent battle cry in courts across the world. In these times of global crisis, however, those judges’ efforts are tone-deaf. But to label the Court as a corrupt institution is a very serious charge that demands evidence. After spending years addressing corruption accusations at the International Tribunal for Rwanda in the mid-1990s, I see nothing like that at the ICC but if it is there, then please produce the evidence.

Second, scaremongering by overstating the case.

The ICC focuses on leadership crimes, and thus political figures diverge from reality when they scare the American public and service personnel, and those of allies, into thinking that the soldiers in the field at mid- and low-level ranks will be subject to the personal jurisdiction of the Court and that their family vacations in Italy will be disrupted with arrests. High-level officials who plan, orchestrate, or are complicit in atrocity crimes should be concerned, but not personnel who must face justice, if at all, before domestic military or criminal courts.

If federal law constrains our will and ability to hold the highest-level officials accountable for atrocity crimes, and if they in fact are not brought to justice before U.S. courts, then the United States has a serious dilemma that needs to be addressed. The U.S. Constitution is not the problem with the ICC but that founding document should inspire us to uphold justice at home. Torture and other atrocity crimes allegedly committed in Afghanistan and at black sites under high-level supervision should be addressed head-on in Washington rather than our bearing witness to seemingly intimidated officials as they screech about the ICC.

Third, similar red herrings on Israel.

Two recent Congressional letters, one from a bipartisan group of Senators and the other from a bipartisan group of Representatives, that Pompeo mentioned as influential, argue that the ICC is wrongfully targeting Israel for investigation of some of its actions on Palestinian territory. The letters have attracted criticism. The Congressional arguments are similar for Israel as those objecting to the Afghanistan investigation with respect to American actions. The ICC Prosecutor has sought guidance from the ICC Pre-Trial Chamber on the reach of jurisdiction regarding the Israel/Palestine situation. That decision is pending. In the meantime, diplomacy would be the best tool to use among all parties to show that justice prevails, provided the political will exists to uphold it.

Fourth, legal and legitimate ways to avert the Court.

Afghanistan may take the high road and file a Rome Statute Article 18 deferral request with the Court, allowing the government to demonstrate over the next six months that it can firmly undertake to investigate and prosecute the alleged atrocity crimes in its own judicial system and thus compel the ICC to stand down and await the results. The United States could do the same with an admittedly delayed Article 18 deferral, which was designed to be useful for both States Parties and non-State Parties. But that would require the administration to acknowledge the procedures written into the Rome Statute, even those benefitting a non-State Party, and that could be a hard sell in Washington today even though American reliance on the non-surrender agreements permitted by Article 98(2) of the Rome Statute seem to be an afterthought.

Fifth, a precedent for perpetrators of atrocity crimes.

The Executive Order regrettably now serves as a precedent of sovereign prerogative that non-State Parties with horrendous records on atrocity crimes will gladly run with. The leaders of Myanmar will pronounce the ICC’s on-going investigation of alleged atrocity crimes against the Rohingya as meaningless because Myanmar is a not a party to the Rome Statute, even though the crimes reached into the territory of Bangladesh, a State Party. Russia has nothing to fear of the ICC’s preliminary examination of alleged atrocity crimes in Ukraine because they will see the Order as proving that nothing done by Russian personnel on Ukrainian territory triggers any accountability for officials sheltered in Moscow.

The Syrian Government of Bashar al-Assad can rest assured that a U.N. Security Council referral of the atrocities in Syria to the ICC will never overcome a Russian veto. High-level officials in Damascus know that crimes stretching onto nearby State Party territories, like the forcible deportation of Syrian victims onto the territories of Jordan and Greece, both States Parties, will be forever shielded by the example of the Order. North Korea’s Kim Jong-un and his cadre of advisers will applaud the rationale offered by the Order when they ponder attacking South Korea or Japan—States Parties—with nuclear missiles and claiming that as non-State Party officials they are above the law. (Of course, the North Korean regime should have crimes against humanity within their country to worry about, if only the Security Council would act to refer that situation to the ICC.)

The United States could avoid some of these consequences both for itself and the world. Appropriate steps include  investigating fairly and thoroughly at home, and actively building the political support that would enable the U.N. Security Council to refer horrendous non-State Party situations to the ICC under Article 13(b) of the Rome Statute, as it did before with the Darfur and Libya referrals (during the Bush and Obama administrations, respectively). That would be running toward the crisis to uphold justice, rather than withdrawing into a very dark sovereign vault.

The author’s observations and views in this article are solely his own and do not reflect any institutional position.

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