America the Unaccountable

The Trump administration has declared war on the International Criminal Court—the world’s only permanent court whose mandate is to pursue cases of genocide, war crimes, and crimes against humanity. President Trump issued an executive order on June 11 that authorizes severe sanctions on ICC employees, as well as the court itself, if it goes forward with planned investigations of alleged war crimes by the US or its allies. (Though not named in the order, Israel is the sole US ally now under ICC scrutiny that fits its terms.)

Sanctions—visa restrictions, asset freezes, and bans on financial transactions with the sanctioned person—are, according to federal law, emergency measures taken against “unusual and extraordinary” foreign threats. They are typically used against terrorists and drug cartels, and in cases of human rights abuses or hostile government actions like the Iranian seizure of US hostages in 1979. Never before has an administration authorized sanctions against judges and prosecutors to stop an investigation of US conduct.

No one at the ICC, which sits in The Hague, has been listed as a target for sanctions yet, but Trump’s executive order plainly aims to weaken the court, deter its employees from continuing their work, and discourage people and companies from doing business with it in any way. Sanctions could block the court from financial transactions with anyone in the world who uses US dollars or wants to stay on the right side of US regulators.¹ There is a very real possibility that ICC employees, including judges and prosecutors, would not have their salaries paid. The sanctions cover “services” as well as financial transactions, which could affect lawyers writing amicus briefs, war crimes investigators in the field, and human rights NGOs that aid the ICC. If the court itself is sanctioned, it could lose the ability to pay for its Internet service or even its building. That could doom ICC inquiries into genocidal attacks on the Rohingya people by Myanmar’s military, war crimes committed by the Lord’s Resistance Army in Uganda, and repression by Nicolás Maduro’s regime in Venezuela, among other cases, none of which has anything to do with the US or Israel.

The ICC prosecutor, Fatou Bensouda, is a particular target of US wrath. Bensouda is a Gambian lawyer and former minister of justice with a long career prosecuting atrocity crimes. Eight years ago, Time proclaimed her one of the hundred most influential people in the world; last year the State Department revoked her US visa. Bensouda’s term ends a year from now, and the search for her successor is already under way. It might become an unenviable and perilous job.

The Trump administration is angry at Bensouda because in 2017 she asked the ICC for permission to investigate “the situation in Afghanistan,” including crimes by the Taliban and Afghan national forces but also by US personnel, mostly connected with the CIA’s post–September 11 torture program. Last December, Bensouda requested a ruling (still pending) on whether she can open an investigation into “the situation in Palestine.” (By the terms of the Rome Statute, which established the ICC, the prosecutor investigates entire “situations,” involving conduct by all sides, “in which one or more crimes within the jurisdiction of the Court appears to have been committed.” The prosecutor then decides which, if any, specific crimes to charge.)

This March, the ICC finally gave the go-ahead to the Afghanistan investigation. Secretary of State Mike Pompeo immediately blasted “this renegade, so-called court” and its “political vendetta.” He called the ICC an “unaccountable political institution masquerading as a legal body” and vowed to take “necessary measures.” It is no surprise that Donald Trump, who calls Supreme Court defeats “shotgun blasts in the face,” believes that foreign investigations of US torturers call for fierce retaliation, not mere noncooperation.

Who the ICC is a “renegade” from is unclear. Almost two thirds of the world’s countries belong to it, including every NATO member except the US and Turkey, as well as other US allies and neighbors: Canada and Mexico, Australia and New Zealand, Japan and South Korea. All Latin American countries except Cuba and Nicaragua are ICC members. As for unaccountability, the ICC is accountable to its 123 member states, whose delegations meet annually to oversee its budget and rules. They appoint its officers, and they can remove them for misconduct or failure to carry out their duties—a strong check on prosecutors and judges.

The US problem is that “we tortured some folks,” as Barack Obama gratingly phrased it in 2014 while refusing to hold anyone accountable for it. Yes, we did—more folks, more cruelly, more deliberately, and far longer than most Americans care to know or are willing to admit. Bensouda wants to investigate only a fraction of the tortures: those directly connected with Afghanistan. Her office explains, in its lawyerly way, that there “is reasonable basis to believe” that US personnel committed “torture,…outrages on personal dignity, and rape.” “Rape” in this case refers to pumping food into the rectums of prisoners, with no medical necessity, in order to control their behavior—a crime that according to US law is aggravated sexual assault.

In announcing the sanctions at a press conference, Pompeo wrapped himself in righteousness: “When our own people do wrong, we lawfully punish those individuals, as rare as they are, who tarnish the reputation of our great US military and our intelligence services.” If that were true, US personnel would have nothing to fear from the ICC, which is required to defer to national investigations and prosecutions.

But it isn’t true. Standing beside Pompeo were the attorney general, defense secretary, and national security adviser. Conspicuously absent was CIA director Gina Haspel, who was station chief at an agency black site in Thailand where torture took place, and who was later involved in the destruction of videotapes of other torture. Her punishment has been career advancement under three presidents. CIA employees even more deeply involved in rendition and torture were also promoted. The agent who in 2003 oversaw the kidnapping, sodomizing, and torture of Khalid El-Masri—a German-Lebanese citizen whose name was similar to that of a suspected terrorist but had no connection to terrorism himself—was made head of the agency’s Global Jihad Unit.² Jay Bybee, who while serving in the Office of Legal Counsel signed the first two Bush administration torture memos in 2002, was punished with a lifetime appellate judgeship.

As for the hands-on torturers, 101 were investigated for exceeding even the brutal interrogation techniques permitted by the OLC memos. The result: zero indictments. As I documented in my book Torture, Power, and Law (2014), both the Bush and Obama administrations fought aggressively against accountability by blocking lawsuits and pressuring US allies to drop their own investigations (including, for instance, Germany’s review of El-Masri’s treatment). In 2006 Congress immunized interrogators retroactively. In the end, no one connected with the torture program was ever charged, disciplined, or demoted.

Fourteen years after the program supposedly ended, the CIA still stifles information about it, delaying and heavily redacting unfavorable books by former insiders while allowing flattering ones to be published. For years, detainees were forbidden to tell their own lawyers what had been done to them. At the Guantánamo military commissions, the government continues to fight to keep torture out of the record. The interview rooms where defense counsel met their clients were bugged, presumably to get advance warning of what they might say. Earlier this year, military commission defense counsel spotted a silver tablet on the prosecutors’ table. It turned out to provide a direct link to the CIA so it could instruct the prosecutors to halt the proceedings if classified information about the rendition and torture program was about to be revealed.

The US objects that prosecuting suspects from countries that never joined the ICC violates the sacred principle of state sovereignty and that treaties like the Rome Statute cannot bind nonparties. This argument is superficially attractive but completely wrong.

When delegates from 160 countries gathered in Rome in 1998 to create the ICC, they were understandably nervous about its powers. They didn’t want to create what American critics called a “global Ken Starr” launching politicized prosecutions, so they built in elaborate firewalls. Unlike previous international criminal tribunals, the ICC can only take cases that perpetrators’ home states are unwilling or unable to pursue themselves. This principle is known as “complementarity,” and it is all-important: the ICC is there to complement and encourage national accountability efforts, not to substitute for them. As a result, a state can put a case safely beyond the ICC’s reach by investigating it honestly and prosecuting when the evidence calls for it. Other protections are procedural. Every significant step by the prosecutor needs approval by a panel of three judges from three different countries, the “Pre-Trial Chamber,” which is no rubber stamp. And the UN Security Council can halt any ICC investigation or prosecution for a year at a time, renewable indefinitely.

Most relevant to the US sovereignty argument is a strict limit on the court’s reach. It has jurisdiction only over crimes committed on the territory of a member state or by one of its nationals. (In addition, nonmember states can grant jurisdiction to the court on an “ad hoc” basis, but only for crimes committed on their territory or by their nationals; the UN Security Council, on which the US has veto power, can grant jurisdiction anywhere.) No one, including the US, denies that nations can prosecute crimes committed on their territory: in the lingo of international law, states have “territorial jurisdiction.” It is the most basic attribute of state sovereignty. The ICC operates on a grant of its members’ own territorial jurisdiction to do what they have every legal right to do: prosecute crimes on their territory, including crimes committed by foreigners.

Afghanistan belongs to the ICC, which is why the court can investigate crimes committed on Afghan territory. The same is true for European countries that hosted the CIA’s secret black sites: Lithuania, Poland, and Romania are all ICC members. The problem for the United States is not that a court it doesn’t recognize is imposing obligations it never agreed to. The problem is that US personnel “tortured some folks” in ICC member countries.

US outrage would be wholly justified if the ICC were what Mike Pompeo says it is: a kangaroo court with no fair process. It is nothing of the sort. If anything, the ICC is legalistic to a fault, and when the prosecutor presents a weak case, the judges do not hesitate to acquit defendants. Furthermore, the US is hardly in a position to talk about kangaroo courts. One need look no further than Guantánamo, with its unbroken streak of scandals going back to 2007, when the head prosecutor, an Air Force colonel, resigned in protest because he was getting pressure from the White House for quick convictions.

Ironically, international tribunals began as an American idea seventy-five years ago, with the Nuremberg trial of major Nazi war criminals. The other Allies were skeptical. Churchill preferred summary executions, and Stalin wanted show trials; at the Tehran Conference he proposed shooting 50,000 German officers. The US insisted on an international tribunal and brought its allies around; US lawyers were leaders in writing the Nuremberg Charter, the template for all future international criminal law. It codified the core crimes of aggression, war crimes, and crimes against humanity. (Genocide, a legal innovation at the time, was added later.) The charter stripped away defenses exempting heads of state, along with subordinates who were “just following orders,” from criminal liability. And it made clear that Nazi crimes could be prosecuted even though they were legal under the laws of the Third Reich. That was a revolutionary development, because it declared that sovereignty is no shield against international criminal law—the same proposition the US now rejects.

US prosecutor Robert Jackson delivered a stirring opening statement at Nuremberg:

That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.

Jackson warned that history would judge the Allies on the tribunal’s fairness: “To pass these defendants a poisoned chalice is to put it to our lips as well.” Fortunately, Nuremberg had no preordained outcome. Three high-level defendants were acquitted of all charges, others of some charges. Telford Taylor, one of the US prosecutors, recalled years later that the prosecution team was terrified that acquittals would delegitimize the tribunal, but the opposite was true. They were the surest sign that it was not a show trial.

Even so, the tribunal, like the subsequent Tokyo Tribunal for Japanese war criminals, had one glaring defect: it prosecuted only Axis crimes, not those committed by the Allies. US Admiral Chester Nimitz freely admitted to sinking merchant ships, one of the charges against his German counterpart Admiral Karl Doenitz.³ Jackson complained to President Truman that the Allies “have done or are doing some of the very things we are prosecuting Germans for”—plunder, prisoner abuse, aggression. Soviet troops massacred thousands of Polish officers in the Katyn Forest. And Truman dropped atomic bombs (although under the law of war at that time bombing cities was not clearly criminal). Once the war was over, the Allies were not about to put their own leaders on trial.

Thus began a pattern of US zigzagging on international criminal justice—sometimes its ardent champion, sometimes its enemy, but unwaveringly opposed to applying it to Americans. The US led efforts to create the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993—the first war crimes court since Nuremberg and Tokyo. But US officials were flabbergasted when the ICTY prosecutor flew to Washington and warned them that if NATO committed war crimes in the course of its intervention in Kosovo, she would prosecute them.

The US supported and helped staff the Rwanda Tribunal that was set up in 1994. David Crane, the founding prosecutor of the Special Court for Sierra Leone, established in 2002, was a former US intelligence official, and most of his original staff were Americans. But the Bush administration turned on Crane when he went after Liberian president Charles Taylor, a major participant in the West African “blood diamonds” wars of the early 1990s. Taylor, it turned out, had once been a US intelligence asset, and his former case manager sat on Bush’s National Security Council. The resourceful Crane marshaled congressional support and outmaneuvered White House resistance to flushing Taylor out of his Nigerian exile. He was tried by the Special Court and sentenced in 2012 to fifty years.

Creating individual post-conflict tribunals is cumbersome and expensive, and by the mid-1990s a permanent international criminal court seemed like an attractive alternative. At first the US supported the idea and was actively involved in the 1998 Rome negotiations. But the Pentagon feared that the ICC would be used politically against US forces all over the world, and Washington turned against it. Bill Clinton signed the Rome Statute, but he refused to submit it to the Senate for ratification.

For the George W. Bush administration, it was hate at first sight. John Bolton raged against the ICC in sulfurous terms, and Bush promptly unsigned the Rome Statute. That was a significant move. Signing a treaty obligates a country not to work to defeat its goals. By unsigning, Bush freed his administration to undermine the ICC. Congress passed a bill authorizing the president to use military force to free any American in ICC custody. It was nicknamed the “Hague Invasion Act” and drew a lot of international eye-rolling—but it is still in force. Unlike Trump and Pompeo, the Bush administration never launched a frontal assault on the ICC. Instead, diplomats pressured ICC members to sign agreements—of doubtful legality—that they would never turn US nationals over to The Hague. Nearly a hundred countries signed.

Besides the ICC, another legal flash point was what lawyers call “universal jurisdiction”: the power of states to prosecute atrocity crimes committed anywhere. For a brief period two decades ago, Belgium opened its courts to universal jurisdiction complaints against a motley assortment of world leaders, including Fidel Castro, Saddam Hussein, and both Yasser Arafat and Ariel Sharon—but that effort collapsed when a complaint against Americans for alleged war crimes in the first Gulf War drew a harsh US response. Defense Secretary Donald Rumsfeld threatened to move NATO headquarters out of Brussels, and Belgium hastily rewrote its law. Yet the US later supported a special tribunal in Senegal that convicted Chad’s ousted dictator Hissène Habré of rape and mass murder, using universal jurisdiction. (Currently, Germany is using universal jurisdiction to try two Syrian intelligence officers accused of torturing political dissidents in that country.)

Then came the revelations of US torture. Human rights groups filed a flurry of universal jurisdiction complaints against Bush administration officials in several European countries. Both the Bush and Obama administrations pressed allies to reject them, which prosecutors in France, Germany, and Spain did, with almost audible sighs of relief.

Yet when the Security Council referred to the ICC the atrocities committed by the Sudanese government in Darfur, even the Bush administration, which had called them a genocide, went along. Under Obama, there was a truce with the ICC, except on the touchy subject of Afghanistan. The State Department’s Office of Global Criminal Justice even assisted the ICC in some matters. All this came crashing to a halt when Trump took office. The new administration immediately announced that it would eliminate the Office of Global Criminal Justice, but then backed down in the face of protests. Instead, it left the office leaderless for almost three years.

In May, Pompeo visited Prime Minister Benjamin Netanyahu in Jerusalem, and the Israeli press reported that the subject of the visit was the sanctions against the ICC—sanctions that Netanyahu greatly desires. Israel faces a genuine ICC problem. The court has no jurisdiction over crimes committed on Israeli territory (except those committed by nationals of ICC members) or by Israelis—unless they commit crimes in a state that grants the court jurisdiction. The Palestinian Authority first approached the ICC in 2009, but the prosecutor refused to take jurisdiction over the Occupied Territories and Gaza because the UN had not deemed Palestine a state. That changed in 2012, when the General Assembly upgraded its status to “non-member observer state.” More than 130 countries now recognize Palestinian statehood, including 77 members of the ICC. By the time the Palestinians came back to The Hague in 2015, Palestine had joined more than a dozen international treaties, including the Geneva Conventions, and this time Bensouda had little choice but to accept the request and open a preliminary examination of conduct by both sides.

Israel does not have much to fear from an investigation connected with its wars in Gaza. The ICC’s definition of disproportionate attack sets an almost impossibly high hurdle to prosecution, and the court’s recent acquittal of a Congolese warlord changed the law on command responsibility to make it hard to charge high-level leaders. The prosecutor will not go forward with a weak case, and Bensouda has resolutely refused to proceed against Israelis, despite judicial pressure, in an unrelated case concerning a violent shipboard encounter in 2010 between Israeli commandos and activists trying to break the blockade of Gaza. Israel has a sophisticated military justice system, and it might succeed in a claim that it has already investigated war crimes complaints and found no basis to prosecute. By contrast, Hamas and Islamic Jihad have boasted about targeting Israeli civilians, so their commanders are heavily exposed to war crimes charges. The ICC can prosecute only individuals, not organizations or states, so neither the Israeli government nor groups like Hamas and Islamic Jihad can be investigated. That complicates the prosecutor’s task, because she must find evidence directly linking individual leaders to specific crimes.

Israel is most vulnerable to ICC investigation of its West Bank settlements. Transferring your own people into occupied territory violates the Geneva Conventions, as Israel’s legal adviser warned the government in a secret 1967 memo, and it is a war crime under the Rome Statute.⁴ Israel has devised an arcane legal theory that it never occupied the West Bank, but it is fair to say that nobody outside Israel and the US takes that position seriously. However, the Palestinians granted jurisdiction to the ICC only over events after July 8, 2014, the date of the last major Israeli military operation in Gaza. Presumably, only settlement activity after that date could come under ICC scrutiny, and (under the terms of the Rome Statute) only if the Israeli government itself sponsored that activity. Israeli exposure may not be great, even if it annexes Palestinian territory. Although such annexations count as aggression, a loophole in the Rome Statute does not allow the court to prosecute aggression by nonmembers.

When Bensouda announced last December that she wished to investigate “the situation in Palestine,” she also asked the judges to clarify whether the court has jurisdiction there. Palestine may be a state in the eyes of the General Assembly, but it obviously lacks the control over its territory that is one of the legal benchmarks of statehood. Common sense says that if Palestine is already a state, the two-state solution already exists, which would certainly come as a surprise to most of the world. What the court must consider is whether Palestine is sufficiently statelike to transfer criminal jurisdiction to the ICC. The answer is not obvious, nor is it obvious where the Israel–Palestine border lies for jurisdictional purposes. The arguments before the court are legalistic in the extreme, and the Pre-Trial Chamber may well deny Bensouda’s request. The International Court of Justice (not to be confused with the ICC) held in 2004 that the boundary is “subject to such rectification as might be agreed upon by the parties.” Israel’s problem is that Netanyahu has no interest in agreement, only in unilateral action. That will be hard for the court to ignore. The Israeli press reports that the Pre-Trial Chamber’s decision will be released very soon.

The ICC is beset by problems, some of its own making, as even its supporters agree. It’s expensive, its proceedings are interminable, and the prosecutor has won only two convictions—both involving Congolese warlords—and suffered several humiliating acquittals of men who were far from innocent. Relations with some African countries have been tense since the previous prosecutor indicted the leaders of Sudan for genocide in Darfur and of Kenya for crimes against humanity during post-election violence in 2008. Eventually, Bensouda closed the Kenyan case because of obstruction and witness intimidation. Several African members threatened to quit the ICC, but so far only Burundi has done so, after Bensouda began investigating crimes against humanity in that troubled country.

The lack of jurisdiction over nonmembers means that some of the world’s most troubling crimes are untouchable by the ICC—enormous crimes in Syria, including thousands of well-documented cases of torture⁵; Saudi bombings of civilians in Yemen; Chinese concentration camps for Uighurs; Russia’s annexation of Crimea; and terrible crimes against humanity in North Korea, which as documented by a UN commission of inquiry included

extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.

The biggest problem, though, is the court’s helplessness against criminal leaders and officials as long as they hold power. It can’t arrest them on its own, and they have little difficulty blocking access to evidence and frightening witnesses into silence. In the brutal world of power politics, the court can operate only against losers. Some observers recommend targeting mid-level perpetrators whom ruthless leaders may be willing to sacrifice as a sop to international pressure. The trouble with this strategy is that it would leave those in power luxuriating in peace while their underlings go to prison. For a court whose mandate is to “put an end to impunity” for “the most serious crimes of international concern,” aiming low would be a crushing humiliation.

Do international courts do much good? There is some evidence that the ICC deters war crimes in conflict zones.⁶ Its more important effect is encouraging states to keep their own houses in order. Dozens of states have rewritten their criminal codes so that they can investigate and prosecute ICC crimes themselves if they face credible accusations; dozens more are in the process of doing so. Additionally, tribunals have sometimes turned toxic leaders like Radovan Karadžić and Joseph Kony into fugitives, and the hope for accountability has inspired victims and witnesses to tell their stories, sometimes at great personal risk—stories that would otherwise be lost to historical memory.

Today, for better and for worse, the ICC is bigger than itself. The other international tribunals have wound down their business, leaving it as the torchbearer of international justice. It symbolizes a measure of redress to victims of atrocities—a promise that their sufferings will not be buried under denialist lies and pious hypocrisy. Just as importantly, today the ICC symbolizes an entire international order that leaders like Trump and Putin wish to destroy. The ICC can’t possibly live up to such outsize expectations, and it may eventually fail. But if the Trump administration takes it down by brute force, that would, in David Crane’s words, signal an end to the age of accountability and a move to the age of the strongman.

There are forces of resistance, including the ten UN Security Council members that belong to the ICC, who issued a joint statement supporting it “undeterred by any threats against the Court, its officials and those cooperating with it.” The EU’s foreign policy chief, Josep Borrell, voiced “steadfast” support for the ICC, and sixty-seven ICC members, including staunch US allies, issued a joint statement supporting the court against the sanctions. An EU “blocking statute” that protects Europeans against US sanctions on Cuba and Iran could be expanded to include sanctions against the ICC. Pressure from many quarters saved the US Office of Global Criminal Justice, and the Senate recently confirmed a new ambassador-at-large, Morse Tan, as its head. The ICC deserves no less support.

—July 23, 2020