THE HAGUE, Netherlands (CN) — Amidst a global pandemic and nationwide protests, the Trump administration found the time last week to announce sanctions against staff at the International Criminal Court.
The administration is upset that the world’s only court to prosecute atrocity crimes has opened an investigation into war crimes in Afghanistan, despite a vanishingly small possibility that The Hague-based court could ever take U.S. citizens into custody.
While Thomas Lubanga Dyilo served as a military commander during the Second Congo War, he abducted children and forced them to serve as child soldiers during the four-year conflict. When his rebel group, the Union of Congolese Patriots, was forced from power in 2003, Lubanga was taken into custody, the first person in history arrested on a warrant issued by the International Criminal Court, or ICC.
Created by the Rome Statute in 2002, the court prosecutes war crimes and crimes against humanity. The ICC does not have its own police force. It relies on member states to turn over suspects.
Some suspects, like Lubanga, arrive at the ICC detention facility in The Netherlands following shifts of power in their home countries. Others, like Ahmad al-Faqi al-Mahdi, a Tuareg Islamist militia member who pleaded guilty to war crimes, are arrested by member states and handed over. Al-Mahdi was arrested in Niger in 2015 for destroying cultural artifacts in Timbuktu. Sometimes suspects, like Sudanese militia leader Ali Muhammad Ali Abd-Al-Rahman, turn themselves in. He handed himself over to authorities in the neighboring Central African Republic.
Despite its moniker as a global court, the Rome Statute limits the ICC’s jurisdiction to crimes committed in the territories of the countries that are parties to the statute or who are citizens of those countries.
“Territorial jurisdiction is the gold standard,” said David Scheffer, a lawyer who served on the U.S. negotiating team during the creation of the treaty. Scheffer physically signed the agreement on behalf of the Clinton administration.
The court can also investigate situations referred to it by the United Nations Security Council, regardless of whether the country is a member state.
Like China, Russia, and India, the United States is not a party to the Rome Statute. The U.S. did sign the treaty in 1998, but the Senate failed to ratify it. President George H. W. Bush effectively withdrew the U.S. in 2002, when he sent a memo to the U.N. saying the country no longer had plans for ratification.
The U.S. has generally been skeptical of handing over sovereignty to international bodies, though opinion polling on the ICC has been trending in a positive direction.
The Trump administration has taken an especially hardline stance against the court since it opened an investigation in 2017 into atrocities committed in Afghanistan. Afghanistan signed the Rome Statute in 2003, giving the ICC jurisdiction to investigate possible war crimes committed there by the Afghanistan government, Taliban and U.S. personnel.
Calling it a “kangaroo court,” Secretary of State Mike Pompeo told reporters last week the administration will sanction court employees who worked on the Afghanistan investigation. It’s not the first time he’s announced retributive measures. He revoked ICC prosecutor Fatou Bensouda’s U.S. visa last year, and a month later a lower chamber of the court determined that an investigation of the apparent atrocities in Afghanistan would likely be frustrated by the “scarce cooperation obtained by the prosecutor.”
But together with human rights and nongovernmental organizations and lawyers for torture victims, Bensouda appealed that ruling. Hearings were held in December 2019 and earlier this year, the prosecutor was given the green light.
Could this investigation lead to the ICC issuing arrest warrants for U.S. citizens?
“It’s really early to say,” said Priya Pillai, an international lawyer who specializes in international justice. Investigations at the court are notoriously long, with some lasting decades.
The court does not try anyone in absentia, so even if a warrant was issued, the U.S. would have to extradite anyone charged.
“The U.S. is not going to hand someone over,” Pillai said.
Should such a warrant be issued, other member states would be obligated to arrest and extradite that person. But countries sometimes don’t. Jordan didn’t arrest ex-Sudanese President Omar al-Bashi, who traveled there to attend the annual Arab League summit in 2017, a move the court referred to the U.N. Security Council in 2019.
Al-Bashi also traveled to Uganda and South Africa while warrants for his arrest were outstanding. He was ousted in a coup in 2019 and the new government announced it would hand him over to the ICC earlier this year, but that has yet to happen.
Complicating matters, the Bush administration pressured some 100 countries to sign what are called Article 98 agreements, or bilateral immunity agreements, which prohibit the countries from handing over U.S. citizens in their custody to the ICC.
The Rome Statute does permit these types of treaties, though.
“This wasn’t what the article was intended for,” said Scheffler. When he was assisting with the drafting of the Rome Statute in the late 1990s, the idea of Article 98 was that some countries had existing agreements for criminal prosecution that they wanted to maintain.
Countries that refused to sign these agreements, like South Africa and Kenya, saw their U.S. developmental aid funding cut, though it was subsequently restored under the Obama administration.
Romania was the first to sign such an agreement and at the time, it was in the process of applying for membership to the European Union. The EU then forbade countries from entering into blanket agreements with the U.S. Romania ultimately didn’t ratify the agreement and currently, no EU country has one in effect.
Should an American citizen be held in ICC custody, there’s always what some have nicknamed the Hague Invasion Act. Signed by Bush in 2002, the American Service-Members' Protection Act authorizes presidents to “use all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”
Though the likelihood of an American being tried at the ICC is minuscule, the executive order Trump signed last week carries real penalties for court staff.
“Asset freezes and travel bans are for human rights violators, not those seeking to bring rights violators to justice,” Richard Dicker, the international justice director at Human Rights Watch, said in a statement. “By targeting the ICC, the Trump administration continues its assault on the global rule of law, putting the U.S. on the side of those who commit and cover up grave abuses, not those who prosecute them.”
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