You may not have noticed that President Donald Trump declared a national emergency earlier this month. Don’t be hard on yourself; it’s an easy emergency to overlook. This emergency isn’t as dramatic as the coronavirus pandemic which has killed 450,000 people worldwide, including 110,000 in the US. It’s not the rising global temperatures caused by the use of fossil fuels which could end life on Earth. It’s not racist cops killing Black Americans. And it’s not the nation’s sky-high unemployment and the terrifying threat of a second Great Depression. In fact, you could be forgiven for thinking that it’s not a real emergency at all. The national emergency President Trump declared on June 11 is the International Criminal Court’s investigation into war crimes in Afghanistan.
The ICC was founded in 2002 as the first permanent criminal tribunal to try individuals for war crimes, genocide, and crimes against humanity. President Bill Clinton signed the Rome Statute, the treaty that created the Court, but did not submit it to the US Senate for ratification. Clinton’s successor, President George W. Bush, famously “un-signed” the treaty. In refusing to join the ICC, the US joins a distinguished company of other non-members, including Russia, China, Israel, Saudi Arabia, Iran, Syria, North Korea, and Iran.
Afghanistan is a State Party, which gives the ICC jurisdiction over war crimes and crimes against humanity which have taken place there, irrespective of the offender’s nationality. In November 2017, ICC Chief Prosecutor Fatou Bensouda applied to the ICC’s Pre-Trial Chamber for authorization to open an investigation into war crimes in Afghanistan. Bensouda attested that a “reasonable basis” existed to believe that US armed forces had subjected at least 54 detainees to rape “and other forms of sexual violence,” torture, cruel treatment, and “outrages against personal dignity” in Afghanistan and in “black sites” on the territory of other States Parties. The CIA committed similar offenses against 24 detainees (pages 55-56 ¶254). The Pre-Trial Chamber rejected Bensouda’s application, but on March 5 the ICC’s Appeals Chamber authorized the Chief Prosecutor to proceed.
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The Afghanistan investigation has been a long time coming, and the Trump Administration has fought it every step of the way. In March 2018, Secretary of State Mike Pompeo announced that visas for ICC staff would be revoked or denied. The next month, Chief Prosecutor Bensouda’s visa was revoked.
In September 2018, John Bolton , then Trump’s (third) National Security Advisor, went a step further. Bolton threatened ICC personnel with economic sanctions if the Court went ahead with the Afghanistan investigation.
That threat has now been realized. In a June 11 executive order, President Trump invoked the 1977 International Emergency Powers Act (IEEPA). The IEEPA allows US presidents to impose economic sanctions, but only in the event of war or national emergency. So Trump has conjured up a handy national emergency.
Trump’s executive order imposes sanctions not just on ICC personnel, but on their families. I couldn’t help thinking back to 2015 when candidate Trump promised that not only would he kill members of ISIS but that he would also “Take out their families.” In short, Trump promised to commit war crimes.
In addition, anyone who provides “material support” to the ICC investigation can be sanctioned. This could affect NGOs, human rights lawyers, and academics.
America First! Last! And Always!
It does not matter to Trump that Fatou Bensouda is investigating all the belligerents in the conflict—the Taliban included—not just the US. Trump hates any kind of “globalist” institution or international agreement that would place limitations on US activity, particularly military action. Since coming into office, Trump has torn up one international agreement after another. Trump took the US out of the Paris Climate Accord and Obama’s nuclear deal with Iran. In 2018, Trump withdrew the US from the UN Human Rights Council. In 2019, Trump withdrew from the Intermediate-Range Nuclear Forces (INF) Treaty with Russia which had been negotiated by President Ronald Reagan. Then, on April 26, 2019 at a convention of the NRA, Trump gleefully announced that he was withdrawing the US signature from the Arms Trade Treaty (“international gun control,” the NRA calls it). Trump has talked about taking the US out of both the World Trade Organization and NATO (both good ideas).
No End to Impunity
The executive order asserts that ICC actions “threaten to infringe upon the sovereignty of the United States” (ignoring the fact that the US tramples on the sovereignty of other nations all the time). Secretary of State Mike Pompeo, who derides the ICC as a “Kangaroo court,” says that the ICC lacks the due process guarantees afforded by the American criminal justice system, which as we all know has won the admiration of the world. These are high-sounding concerns. But we know what American officials are really thinking. Trump and his henchmen are afraid that they themselves will wind up in the dock.
It’s possible, theoretically. Noam Chomsky has said that “If the Nuremberg laws were applied, then every post-war American president would have been hanged.” And not just presidents. Consider Secretary of State Mike Pompeo. The Just Security website observes that Pompeo could be held liable for war crimes and crimes against humanity committed between January 2017 and April 2018 when he was director of the CIA. Just Security cites a 2019 report from Human Rights Watch on night raids in Afghanistan. Paramilitaries trained, equipped, and supported by the CIA were responsible for assaults, forcible disappearances, summary executions, and extraordinary renditions (what you or I less coyly call “torture”). Sometimes US personnel accompanied the paramilitaries. At other times, US military transported these forces by helicopter or provided air support. These lawless operations took a heavy toll on Afghan civilians.
It’s entertaining to picture Trump or Pompeo (or George W. Bush or Dick Cheney) in orange coveralls, but it’s not likely to happen. The US has ways of applying pressure against the ICC. The US can threaten to bow out of UN peacekeeping operations, a threat President George W. Bush made in 2002. The US can cut off foreign aid.
If all else fails, there’s always force. The American Service-Members’ Protection Act of 2002 empowers the president to use “all means necessary and appropriate” to liberate Americans held by the ICC. That includes military force, earning the law the nickname the “Hague Invasion Act.”
Friends of the US are also guaranteed a “Get Out of Jail Free” card. The June 11 executive order says that the US will resist ICC actions against “countries that are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction.” Whoever can that mean? The order doesn’t say, but Mike Pompeo has. “We’re also gravely concerned about the threat the court poses to Israel,” Pompeo said on June 11. “The ICC is already threatening Israel with an investigation of so-called war crimes committed by its forces and personnel in the West Bank and in the Gaza Strip.” Over three hundred members of the Senate and House of Representatives from both parties have sent letters to Pompeo asking that he protect Israel from the ICC.
Someone should tell Trump that there’s a simple way he can spare Americans from prosecution by the ICC. The Rome Statute enshrines the principle of complementarity. Under Article 17, the Court will not exercise jurisdiction unless the state involved is “unwilling or unable genuinely to carry out [an] investigation or prosecution.” This could prove difficult for Mr. Trump. Trump has pardoned three Americans involved in war crimes. One of them was Navy SEAL Edward Gallagher, a man described by his fellow SEALS as “freaking evil,” who posed with the corpse of a 17-year old ISIS prisoner he had killed.
The ICC was established in order to end impunity for war crimes, genocide, and crimes against humanity. Trump’s executive order proves that that goal is still a long way off.
Editors’ Note: This column has been updated.