On Friday, March 15, the United States dealt a sharp blow to the International Criminal Court (ICC), declaring that they would prohibit entry of ICC officials to the U.S. that sought to investigate U.S. personnel. Speaking at the State Department, Secretary Pompeo noted that, “I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel. This includes persons who take or have taken action to request or further such an investigation.”
This decision comes in response to a comment made by an ICC prosecutor, who last year stated that the ICC should investigate allegations of war crimes in Afghanistan. In describing the potential investigation, the prosecutor noted that the ICC should investigate all potential belligerents, including Afghan national security forces and the Taliban. However, it was the prosecutor’s decision to include U.S. forces and intelligence officials in that potential investigation that truly riled the Trump administration.
Since the ICC raised the idea of a potential investigation into U.S. personnel, the Trump administration has made clear its abhorrence of the international institution. In September 2018, National Security Advisor John Bolton sharply criticized the ICC, stating that the U.S. would potentially sanction the body in response to its decision to launch an inquiry into Israel. “If the court comes after us, Israel, or other US allies we will not sit quietly,” he said. “We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead.”
The U.S. has always had a mixed relationship with the ICC. President Clinton signed the Rome Statute in 2000, bringing the international organization into existence, but he never submitted the treaty to the Senate for its consideration and potential ratification. In 2001, the Bush administration promoted and passed the American Service Members Protection Act, which stove to immunize American troops from potential ICC persecution. On March 15, Secretary Pompeo built upon this American skepticism to the ICC, while taking it to a whole new level, noting that,
“Since 1998, the United States has declined to join the ICC because of its broad, unaccountable prosecutorial powers and the threat it poses to American national sovereignty. We are determined to protect the American and allied military and civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation. We feared that the court could eventually pursue politically motivated prosecutions of Americans, and our fears were warranted.”
The ICC refused to recoil in response to these comments. In a statement, the court noted that, “The court is an independent and impartial judicial institution crucial for ensuring accountability for the gravest crimes under international law. The ICC, as a court of law, will continue to do its independent work, undeterred, in accordance with its mandate and the overarching principles of the rule of law.”
The Trump administration has made its position clear, further emphasizing that in its “America First” agenda, it will strike at any international institution it believes threatens the interests of American personnel. Yet in this effort, it not only isolates the U.S. on the world stage, but reveals the administration’s hypocritical tendencies. While the Trump administration has praised states like Germany for seeking to punish alleged Syrian war criminals, it refuses to even consider the idea that the U.S. has committed crimes itself.
Knowing how the U.S. will react to a potential investigation into the war in Afghanistan, it remains to be seen what if anything the ICC will uncover. Yet once those findings come to light, the U.S. and ICC will clash with even more ferociousness than we have ever seen.