In March, the Appeal’s Chamber of the International Criminal Court (ICC) authorized an investigation of potential war crimes alleged to have occurred more than a decade ago in Afghanistan, including those by the United States. While the U.S. military under President Obama did conduct investigations of its activities in Afghanistan, there remain concerns that those investigations did not go far enough up the chain of command and did not adequately include conduct by the U.S. intelligence community. In a post on this blog just after the decision, I argued that the Trump administration’s threats to prevent such a case may have actually pushed the court toward such an investigation.
Former Brookings Expert
Professor - University of Pennsylvania Law School
Today, the Trump administration issued unprecedented sanctions against the ICC, as well as the international lawyers and human rights investigators involved in the case. This sanctions regime is fundamentally misguided. It will do little to stop the ICC’s investigation, erodes the U.S. longstanding commitment to human rights and the rule of law, and may undermine one of the most powerful tools in the U.S. foreign policy arsenal — economic sanctions.
In a moment of real national emergencies — ranging from the COVID-19 pandemic, to police misconduct, to the highest unemployment rate in a generation — the fact that President Trump, in an executive order on June 11, “declare[d] a national emergency to deal with” the threat posed by the ICC investigation in Afghanistan seems almost farcical. An underfunded court with relatively little to show for two decades of work trying to end impunity would likely be surprised to learn that, in Trump’s view, it has the power to “impede the critical national security and foreign policy work of United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.” Admitting that a duly authorized investigation of U.S. conduct in Afghanistan constitutes such a threat is both a recognition of the power of international law and a suggestion that the U.S. has something to hide.
Of course, declaring a national emergency is a necessary precondition for the sanctions imposed on the ICC and its officials. While the U.S. has had a complicated history with the ICC — from President Bill Clinton’s signing of its founding treaty to President George Bush’s early efforts to undermine the court — the new sanctions go further than any past U.S. actions in their direct attack on the ICC and its staff. Bush’s “unsigning” of the Rome Statute was largely symbolic. So, too, was the American Servicemembers Protection Act that threatened to invade the Netherlands to rescue any U.S. citizens that might be prosecuted in The Hague.
In contrast, today’s sanctions directly target individual international lawyers and investigators working for a legitimate international organization undertaking lawful actions under its statute. More specifically, today’s sanctions seize the property of to-be-designated ICC officials who undertake investigation or prosecution of U.S. personnel and any other foreign nationals who are deemed to have assisted such efforts. So too, the new sanctions prohibit the entry into the United States of such individuals and their immediate family members.
The sanctions language is sufficiently broad that it could, in theory, apply to a victim or witness who provided information incidental to the court’s investigation or an academic whose scholarship the court relied upon in framing a legal argument. This new sanctions regime draws strong parallels to those imposed by the U.S. in the past against terrorist groups, dictators, and human rights abusers. Those same sanctions are now turned on international lawyers and human rights defenders.
The sanctions imposed today on ICC officials are unlikely to achieve Trump’s objective of blocking the investigation of U.S. conduct in Afghanistan. If anything, the sanctions will redouble those efforts. Unlike most corrupt dictators or terrorist organizations, individuals who choose to work for the ICC or in international human rights more generally are motivated by conscience, not wealth. They rarely have significant assets in U.S. bank accounts or meaningful real property for the U.S. to seize. Similarly, the foreign victims of crimes in Afghanistan who might testify before the ICC are not likely to have assets subject to seizure.
Hence, the threat of such a seizure under this new sanctions regime will do little to deter investigation or cooperation. Even blocking ICC employees from entering the U.S. will have minimal impact. Effective investigation of crimes in Afghanistan more than a decade ago does not require on-the-ground presence in the U.S. today. In fact, given the moral compass of most human rights advocates and international criminal prosecutors, treating them like terrorists under this new sanctions regime will more likely be a call to action under the law than an effective threat.
This new sanctions regime is a direct affront to international human rights and, particularly, individuals who have dedicated their lives to enforcing international law and ending impunity. President Trump has a long history of attacking international institutions that he doesn’t like. His recent criticisms of the World Health Organization are case in point. This new attack on the ICC is, however, different because it targets not just another international institution, but also the individuals who work for that institution. As such, it is an effort to directly sanction human rights defenders and officials of international justice for doing their jobs. The new sanctions regime seeks to punish those individuals, working for an international organization created by a treaty the United States signed in 2000, and undertaking a legal investigation authorized by a panel of international judges. It flies in the face of every U.S. and international effort to protect human rights defenders and offers a powerful example for despots around the world to follow suit.
Other, better tools
Finally, the use of U.S. sanctions against ICC personnel is a dangerous step toward undermining one of the most powerful and important tools of U.S. foreign policy — international sanctions. In a world where the use of force is difficult and often ineffective, carefully crafted and strategically applied sanctions are a key tool of U.S. power. For sanctions to work, however, they must be used judicially and viewed as broadly legitimate. Overuse of sanctions creates incentives for actors to find work-arounds to avoid the pain. Sanctions that are seen as illegitimate fail to garner international cooperation for enforcement and compliance. Applying tough sanctions against the personnel of an international organization undermines their efficacy and legitimacy for times when they could actually advance U.S. national security.
So, what should Trump have done instead? Simply investigate and prosecute any crimes that the U.S. may or may not have committed in Afghanistan years ago. The Rome Statute of the ICC makes clear that the court is a backstop to national prosecutions and that it will not investigate or prosecute when national governments have held themselves and their soldiers accountable. If the U.S. did nothing wrong in Afghanistan, it could simply submit to the ICC evidence of a genuine investigation with respect to both military and intelligence agency activities that reached that conclusion. And if there are violations of the laws of war in Afghanistan that have yet to be adequately investigated and prosecuted, then the U.S. has a legal and moral duty to ensure that those perpetrators are held accountable. To do so would uphold the rule of law and provide a concrete step toward renewing America’s human rights leadership.
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