On March 15, 2019, the IELR Blog detailed how the Trump administration pledged to block the entry of International Criminal Court (ICC) officials seeking to investigate U.S. personnel. On April 5, the Trump administration kept their word, revoking the visa of Public Prosecutor Fatou Bensouda.
“We can confirm that the U.S. authorities have revoked the prosecutor’s visa for entry into the U.S.,” Bensouda’s office wrote.
Since 2017, Bensouda, alongside her colleagues at the ICC, have been investigating alleged war crimes in Afghanistan. The investigation has reviewed allegations against all parties, including Afghan security forces and the Taliban, as well as U.S. personnel. The investigation may even expand to consider CIA activity within Afghan detention centers. A 2017 report from the Prosecutor’s office, which requested permission to launch the aforementioned investigation, made this clear, noting,
“The information available provides a reasonable basis to believe that members of the United States of America (“US”) armed forces and members of the Central Intelligence Agency (“CIA”) committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period.”
The State Department has not been shy in opposing the ICC’s efforts. When they denied Bensouda’s visa, their logic fell on this harsh line, as a spokesperson stated,
“The United States will take the necessary steps to protect its sovereignty and to protect our people from unjust investigation and prosecution by the International Criminal Court…One such measure now being implemented restricts the issuance of U.S. visas for those ICC officials who are determined to be directly responsible for any ICC effort to conduct a formal investigation of U.S. or allied personnel without the relevant country’s consent.”
Although the U.S. signed the Rome Statute in 1998, bringing the court into existence, they never ratified the treaty, meaning that they are under no legal obligation to abide by the court’s decisions. The U.S. has long feared that officially joining the ICC would dramatically impede their judicial sovereignty. In 2001, the U.S. implemented the American Service Members’ Protection Act, which provides U.S. and allied personnel immunity from the ICC. Yet most American allies, such as Germany, have proven firm supporters of the court since its foundation.
The ICC, meanwhile, has taken this attack by the U.S. in stride. Since Afghanistan signed onto the Rome Statute in 2003, the ICC believes that they possess the right to try American personnel if they please. “The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law,” the court said. Bensouda and her office personally specified that they would be a part of that work, stating, “The prosecutor and her office will continue to undertake that statutory duty with utmost commitment and professionalism, without fear or favor.”
These statements by both the U.S. and ICC should not be viewed as surprising. In March, both sides claimed that they would do as they have done, with the U.S. pledging to prohibit entry of those ICC members investigating U.S. personnel, and the ICC pledging to continue their investigation regardless. Nevertheless, the rapid deterioration in relations still serves as a surprise, as the U.S. has never gone this far in their opposition to the international institution. The Trump administration, however, is no stranger to breaking with precedent, whether that be by moving the U.S. embassy in Israel to Jerusalem, questioning the value of NATO, or threatening to close the U.S.-Mexico border. With no side willing to back down, this conflict between the U.S. and ICC is set to continue until the court releases the findings of its investigation. If charges are made against U.S. personnel – which the ICC has made clear is wholly likely – then this conflict will reach a new, unprecedented level; perhaps a level even unprecedented in the age of Trump.
From an international enforcement perspective, the controversy concerns whether a powerful state can assert its power to give impunity to its nationals when they are under investigation for war crimes. If the U.S. protects its nationals from investigation for these offenses, then other countries, such as Russia and China, will emulate them.