The court’s top prosecutor found that the U.S. military may have committed “torture.”
The Trump administration announced sanctions and visa restrictions against International Criminal Court officials investigating alleged American abuses in Afghanistan, firing shots at a longtime conservative target and taking implicit aim at European allies that support the court.
In March, the ICC appeals chamber authorized an investigation by Chief Prosecutor Fatou Bensouda to look into possible crimes by all parties to the nearly 20-year conflict, including U.S. troops, the CIA, and the U.S.-allied Afghan National Security Forces, as well as the Taliban and the Haqqani network. In a 2017 request to pursue the probe, Bensouda wrote that the U.S. military and CIA may have committed acts that constituted “torture, outrages upon personal dignity and rape and other forms of sexual violence.” These primarily occurred in 2003 and 2004, when the George W. Bush administration used waterboarding and other brutal interrogation tactics that are now illegal.
Announcing the sanctions on Thursday morning at the State Department, Secretary of State Mike Pompeo and other top Trump administration officials accused the ICC’s top prosecutor of corruption, denigrating the institution as a “kangaroo court,” and claiming that it is putting the United States its allies “in its crosshairs for nakedly political purposes.”
The sanctions will target ICC officials “directly engaged in ICC efforts to investigate U.S. personnel or allied personnel against that allied state’s consent and against others who materially support such officials’ activities,” according to Pompeo. The visa restrictions will target both ICC officials and their families.
"We cannot allow ICC officials and their families to shop, travel, and otherwise enjoy American freedoms while these same officials seek to prosecute the defender of those very freedoms," Pompeo said. "Never forget the American commitment to real justice and accountability."
The court is intended to prosecute international crimes like genocide and war crimes in cases where certain jurisdictional standards are met — such as a referral from the U.N. Security Council or when the country in question is unwilling or unable to prosecute those crimes itself. Its supporters argue that its mere existence helps deter atrocities.
The United States is not a signatory to the ICC. Administrations of both parties have long been wary of the Hague, in part out of concern that it might allow for the prosecution of American officials for military action. Conservatives — including the Trump administration — have long derided the ICC as both a threat to American sovereignty and as ineffective, pointing out that the court has managed only four successful prosecutions in its 20-year history.
“We expect information about alleged misconduct by our people to be turned over to U.S. authorities so that we can take the appropriate action, as we have consistently done so in the past,” Defense Secretary Mark Esper said. “The United States maintains the sovereign right and obligation to properly investigate and address any of our personnel’s alleged violations of the laws of war.”
President Barack Obama declined to pursue prosecutions for any Bush-era officials accused of torturing detainees in the War on Terror, famously declaring in 2009: “We need to look forward as opposed to looking backwards.” President Donald Trump said on the campaign trail that he wanted to reinstate the use of waterboarding.
Pompeo began on Thursday by describing a hypothetical “nightmare scenario” in which an American service-member is taken into custody on an ICC warrant while on vacation “with his or her family, maybe on a beach in Europe.”
“A prison sentence abroad is a distinct possibility,” Pompeo said. “Making sure this doesn’t happen is at the center of America First foreign policy.”
There are limits to the ICC’s jurisdiction over U.S. nationals, including the fact that the United States has not ratified the Rome Statute, the treaty creating the court. That means that the court can only investigate and potentially prosecute Americans when their actions are carried out in one of the 123 ICC member states, which include Afghanistan.
But perhaps the most meaningful limit on the risk the ICC might pose to Americans accused of war crimes is its lack of independent arrest power. The court relies on cooperation from member nations to arrest indicted suspects for trial at the Hague. Those member nations do not always choose to make those arrests — meaning that the U.S. could lean on its diplomatic heft to pressure other countries into not arresting any American who might be indicted in the course of the investigation. The United States in the past has sought what are known as Article 98 agreements: bilateral treaties with ICC-participating nations that prohibit them from turning U.S personnel over to the court. During the George W. Bush administration, John Bolton, then at the State Department, spearheaded the signing of about a hundred Article 98 agreements in a bid to undermine the court — none of them with European nations.
On Thursday, Pompeo rebuked the United States’ European allies: “Your people could be next, especially those from NATO countries who fought terrorism alongside us.”
The ICC investigation into the Afghanistan conflict is still in its early stages, making its outcome difficult to predict. A three-judge chamber unanimously turned down Bensouda’s submission in April 2019, saying the court would decline to investigate because of what it described as limited prospects for a successful investigation and prosecution. (The appeals overruled that decision in March.) The Pre-Trial Chamber in 2019 did say that Bensouda’s submission adequately established both the court’s jurisdiction — Afghanistan is a party to the ICC — and the admissibility of evidence.
The ICC is expected to issue an official reaction to the sanctions soon.