Today is International Criminal Justice Day when the world recognizes the importance of international efforts to hold individuals accountable for the crimes of genocide, crimes against humanity, and war crimes. Starting with the Nuremberg trials after World War Two and continuing to more recent times, the United States has been a city on the hill in seeking accountability for the world’s gravest crimes.
Tragically, US leadership in this field has hit rock bottom. Last month, the Trump administration announced an executive order authorizing sanctions against the International Criminal Court (ICC), its professionals, their families, and others who assist the ICC in its vital work to maintain international peace and security through law, not war. These sanctions were authorized in retaliation for the ICC’s investigation in Afghanistan and prospectively in Palestine.
These sanctions are unprecedented. Sanctions are designed to punish mass human rights violators, terrorists, and others who prey on the innocent, not judicial professionals seeking to hold these actors criminally accountable. The sanctions are a betrayal of our best values.
Watching the public announcement by the administration’s top officials felt like watching American exceptionalism on human rights and the rule of law on life support. US leaders peddled distortions about the ICC, such as its work amounted to a “persecution of Americans”. They failed to mention that the lion’s share of the ICC’s investigation focuses on crimes committed against Afghan civilians on Afghan territory by the Taliban, Islamic State, and other militant groups.
Attorney General Barr claimed to have evidence of “corruption and malfeasance at the highest levels” of the ICC and threatened to “hold people accountable for their wrongdoing” without sharing what evidence or authority he had.
He knows there is no evidence and no authority, and therein lies the rot: current American leadership, not the ICC, has politicized the rule of law, domestically and internationally. The US called the ICC a “kangaroo” court, yet the Flynn and Stone debacles demonstrate that the administration prefers courts that are not impartial and independent but beholden to political interests and manipulation.
The attack on the ICC does not come from a desire to protect “our brave warriors” but to escape scrutiny of our past, specifically allegations of torture and other crimes committed in Afghanistan and through the US rendition program in European countries – all well-documented by our own authorities yet unpursued.
Whether US officials are criminally responsible for these crimes is best left to courts of law. The ugly truth, however, is that the US finds itself authorizing sanctions on the world’s only permanent international court for atrocity crimes because of its unwillingness to genuinely hold our own accountable, particularly the alleged architects behind the torture program.
Recently, Secretary Pompeo said “we honor and support victims and survivors of torture around the world. The U.S. is committed to using all available tools to promote accountability for those who engage in these abhorrent practices.” The ICC is simply asking the legitimate question: does that include Americans who participate in torture?
The US and virtually all its allies helped craft the Rome Statute – the ICC’s governing treaty passed on July 17, 1998 – and its other constitutive documents. The administration does not want it known that the US fingerprints are all over the ICC laws and procedures. We helped make this court.
The Trump administration says the ICC does not “respect…American sovereignty”. This is a distraction. The ICC, by law, is required to wash its hands of all proceedings if the US pursues genuine investigations and prosecutions into crimes by US nationals. The ICC is acting on the well-established principle of territoriality, the same principle we apply at home.
This is not about a rogue international court bent on waging lawfare as the administration would want the American public to believe. Far from it. The fact is that our government has been unwilling to hold its officials accountable under American law, in American courtrooms, with American due process.
The words of US Supreme Court Justice Robert H. Jackson who served as Chief Prosecutor at the Nuremberg Tribunal are most apt: “they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
On this International Criminal Justice Day, it is time for Americans to understand that our standing in the world is earned, not given. Our rule of law is on the brink, and we need to answer the hard questions and reverse course before it is too late.
*Christopher “Kip” Hale is an attorney specializing in atrocity crimes accountability and has worked at UN Tribunals for the former Yugoslavia and Cambodia.