The US finally begins to stand up to the ICC

President Donald Trump’s executive order against the International Criminal Court is a good start, but much more can and should be done.

International Criminal Court, The Hague, Netherlands. Source: United Nations.
International Criminal Court, The Hague, Netherlands. Source: United Nations.
Clifford D. May
Clifford D. May is the founder and president of the Foundation for Defense of Democracies (FDD), as well as a columnist for “The Washington Times.”

Wars are contests of wills, and Americans have long had enemies who use guns and bombs in an attempt to force us to submit to their will. But some adversaries take more creative approaches.

Earlier this month, the United States began to defend itself against an impending attack from an international organization. It will take me just a few paragraphs to get you up to speed.

The International Criminal Court was set up towards the end of the last century for what sounds like a noble purpose: to bring to justice perpetrators of such heinous crimes as genocide, in particular those beyond the reach of a credible national judicial system.

Nevertheless, the United States declined to ratify the treaty establishing the ICC, largely because it was unclear who would serve as judge and jury, and to whom, if anyone, this court would be accountable.

So America is not a member of the ICC, does not accept its jurisdiction and is under no obligation to abide by its rulings. A basic principle of international law: Treaties cannot bind nations without their consent.

Over the 18 years since the court evolved from an idea to a brick-and-mortar bureaucracy in The Hague with a staff of nearly 1,000, it has spent more than $1.5 billion securing a total of four convictions for major crimes, plus four convictions for lesser crimes.

Now, the ICC has fixed its sights on what may seem a softer and sexier target: It intends to investigate, prosecute and, if it can, convict American military personnel for “war crimes” and “crimes against humanity” allegedly committed while fighting the Taliban in Afghanistan in 2003-4. Once branded as criminals, such Americans could be imprisoned in foreign countries, including those of America’s allies.

In May, 262 House members and 69 senators, Democrats and Republicans alike, wrote to Secretary of State Mike Pompeo, urging that he “call on the ICC to cease its politically motivated investigations.” Earlier this month, The Military Coalition, which has more than 5.5. million members, sent a letter to the president and congressional leaders asking them to “protect America’s service members, veterans, and families from the politically-motivated and inappropriate actions of the ICC.”

The U.S. government has asked the ICC to please back off, to abide by its own charter which authorizes investigations only when national justice systems are “unwilling or unable” to perform competently.

As for the ICC’s competence, that’s open to question. The court’s chief prosecutor, Fatou Bensouda, is a former legal adviser to Yahya Jammeh, a brutal and corrupt dictator who took power in Gambia through a coup. Bensouda also was a Gambian minister of justice. According to Freedom House, Gambia’s judiciary is “hampered by corruption and inefficiency,” and its constitutional “guarantees of due process remain poorly upheld.”

On June 11, President Donald Trump issued an executive order proclaiming that “any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States … constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.”

The following day, Pompeo, Attorney General William Barr, Secretary of Defense Mark Esper and National Security Advisor Robert O’Brien gathered before reporters to emphasize the administration’s resolve.

Pompeo authorized the imposition of economic sanctions against ICC officials seeking to haul “U.S. personnel or allied personnel” before “a kangaroo court.” (The “allied personnel” he has in mind: Israeli soldiers, also in the ICC’s crosshairs for alleged “war crimes” committed while defending their country from Hamas attacks.) The United States is to expand visa restrictions against such officials and their families as well.

Barr said the ICC has become “a political tool employed by unaccountable international elites.” He added that “foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda.”

O’Brien echoed: “We have every reason to believe our adversaries are manipulating the ICC by encouraging these allegations.”

Sooner rather than later, administration officials should tell us more. However, it’s not difficult to imagine the means by which the ICC might be influenced, especially given how China’s rulers took control of the World Health Organization to the detriment of the health and well-being of people around the world.

America’s adversaries have increasingly been commandeering and subverting international organizations. The most obvious example: The U.N. Human Rights Council, long under the control of serial human rights abusers. But the People’s Republic of China is singularly adept at taking the reins.

Among the 15 most significant U.N. agencies, four are currently run by Chinese citizens who are kept on a short leash by China’s rulers. Citizens of the United States, Britain and France combined lead the same number of U.N. agencies. Those individuals regard themselves as international civil servants who do not take instructions from their capitals.

The Trump administration, to its credit, recently succeeded in preventing Beijing’s candidate from heading up the World Intellectual Property Organization (WIPO). Beijing, of course, steals intellectual property on a historically unprecedented scale.

Much more can and should be done about the ICC in particular, and international organizations beholden to America’s authoritarian adversaries in general.

America’s allies could help. NATO members and Japan depend on American troops to defend them. Yet they both support and fund the ICC even as it unlawfully targets the American troops putting their lives on the line for them. At a time of growing isolationism in America on both the left and the right, a time when those of us who support strong relations with America’s democratic allies are on the defensive, do they not see how unstrategic and unwise that is?

Clifford D. May is the founder and president of the Foundation for Defense of Democracies (FDD), and a columnist for “The Washington Times.”

This article was first published by “The Washington Times.”

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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