Does the Trump Administration’s Rejection of the International Criminal Court Endanger the Possibility for Justice?

By Katherine Hueston ‘23; Image created by Brian Stauffer for Human Rights Watch in 2015

During my senior year of high school, as I sat in a seminar about the history of genocide, I grew increasingly curious about why the International Criminal Court had failed to prosecute the war crimes and human rights atrocities perpetrated by the United States.  I learned later that our nation, which supposedly favors the imposition of the rule of law, has repeatedly refused to join the International Criminal Court – a problem which puts the prosecutorial efficacy of the Court at risk both within the United States and internationally.  The domestic political climate and Republican-controlled Senate in the late-1990s contributed heavily to America’s early opposition to the Rome Statute, the treaty that created the International Criminal Court.  Today, American hostility toward the Court can largely be attributed to President Trump and White House officials who blindly protect American citizens from facing the consequences of their actions, namely perpetrating crimes against humanity in Afghanistan.  If President Trump serves another four years, he will continue to use “America First” ideology to turn a blind eye to the rule of law by continually working to destroy the credibility of the only international institution that aims to prosecute those responsible for genocide, war crimes, crimes against humanity, and crimes of aggression.

It seems that in 2020, the future of the legitimacy of the International Criminal Court in America is on the rocks.  In reality, White House officials have obstructed the United States’ involvement with the Court, as well as inhibited the country’s ability to aid in genocide and human rights atrocity prevention since the Court was created in 2002.  For example, the American Service-members Protection Act, passed by President Bush in 2002, attempts to limit the opportunities in which Americans could be connected to an ICC case.  This has resulted in intense regulation of the United States’ involvement with UN Peacekeeping missions, thus limiting UN successes.  The most clear failure of US involvement is in Darfur, a region of Sudan where hundreds of thousands of Darfuri people have been brutally murdered by the Sudanese government, the Khartoum, and its militias, the Janjaweed.  Therefore, the hostile precedent set by the Bush Administration, which also included attempts at agreements that would have prevented other countries from giving up US nationals to the ICC, as well as an un-signing of the Rome Statute, did nothing to enhance American power.  Instead, these attempted regulations and agreements only weakened the United States’ relationship with other countries, as our leaders made it evident that international human rights justice was not an American priority. 

Subsequently, the Obama Administration attempted to salvage the relationship between the United States and the Court by using a variety of tactics ranging from cooperation with the Prosecutor investigating the genocide in Darfur to attendance at all Assembly of State Parties meetings beginning in 2009, thus publicly displaying the United States’ new willingness to collaborate with the Court.  Ultimately, however, the United States was unable to become a full member state of the ICC between 2008 and 2016.  While President Obama could have re-signed the Rome Statute at any time, the process of ratification would have been nearly impossible, given the fact that a two-thirds majority would have been needed. Additionally, many Senators, especially Republicans, had long objected to the rule of the Court over absolute American sovereignty.  By 2016, the Republican Party controlled the Presidency and the Senate, shattering any possibility of ratification of the Rome Statute.  Since President Trump’s election, the pro-American, anti-justice rhetoric promoted by his Administration has only exacerbated the disagreements between the United States and the Court.   

Throughout the Trump Administration, but especially within the last year, various White House officials have worked to discredit the ICC in America, even going so far as to sanction ICC officials looking to investigate the role of American troops and officials in brutal crimes allegedly perpetrated throughout Afghanistan.  Secretary of State, Mike Pompeo, has attempted to justify the decision by calling the possibility of an investigation an “unjust investigation and prosecution by the ICC.”  In reality, the Court has proven there are precedent and doctrine that justify the investigation.  Because Afghanistan is a member of the ICC, the Court has the right to investigate all crimes that occurred on the land – including the alleged killings of thousands of Afghani civilians by United States citizens.  Therefore, the economic sanctions imposed by the US government on ICC officials clearly oppose the jurisdiction of the Court and the supposed role of the United States as an “ardent supporter of international criminal justice.”

President Trump’s actions are, as Human Rights Watch International Justice Director, Richard Dicker claimed, “an egregious affront to victims of the world’s worst crimes.”  His Administration’s placement of economic sanctions on any ICC officials looking to investigate American citizens is a clear attempt to prevent the Court from employing its legitimate investigative and prosecutorial powers.  At the same time, President Trump refuses to utilize the American legal system to try and prosecute Americans implicated in crimes in Afghanistan.  Now, lawyers working with the ICC are fighting back against President Trump’s most recent sanctions on ICC members and investigators, claiming that the sanctions violate their freedom of speech.  The Court’s Chief Prosecutor, Fatou Bensouda, recognizes the challenges the sanctions create, but she remains committed to pursuing justice for the victims of war crimes in Afghanistan, even those that were allegedly perpetrated by American citizens.

While the International Criminal Court has functioned (albeit somewhat ineffectively) since its inception in 2002, the inclusion of the United States in the Court would mark a shift in national and international norms from absolute state sovereignty to increased international collaboration.  In this light, we must ask ourselves then what we want from our country.  Should we prioritize the Court’s ability to bring Americans guilty of egregious crimes to justice, or should we cling onto our insistence in a state’s absolute sovereignty, which has resulted in unequal distribution of justice throughout the world since the Court’s inception?  If America continues to resist joining the Court, should we not be committed to domestically trying those Americans who are responsible for horrific war crimes and crimes against humanity? 

If the Trump Administration cared about the rule of law and justice, it would at least try the officials that the Court is currently targeting, which would effectively remove any jurisdiction the ICC currently has in the United States.  United States citizens have yet to face the consequences of their actions in Afghanistan, but if our own officials fail to acknowledge and take action against the wrongdoings of Americans, we must expect that the ICC will pursue justice instead.  As Trump Administration senior officials continue to call the Court “illegitimate,” I fear the increasing hostility will obstruct any possibility for reconciliation and justice, both within the United States legal system, and the ICC – especially if President Trump’s “America First” rhetoric reigns for another four years.