In the second week of September 2018, US president Donald Trump’s administration made rash pronouncements which have the potential to throw international criminal justice to the gutter. Speaking through American national security adviser, John Bolton, Trump exhibited an adverse stance towards the International Criminal Court (ICC). Granted, the US is not a party to the Rome Statute which established the ICC, save for a fleeting moment in between 31 December 2000 and 6 May 2002. The US had initially signed the Rome Statute under President Bill Clinton’s watch, only for the George Bush administration to turn around and announce that it would not go through with ratification. Among the reasons stated for the withdrawal was the lack of effective mechanisms to prevent politicised prosecutions of American soldiers and officials.

Under the Barack Obama administration, the US took a more amiable approach to the ICC. The administration was prepared to support the ICC’s activities, including prosecutions, and to further provide assistance where requested. Regardless of its positive posture, the Obama administration was very clear that such cooperation was subservient to America’s national interests.

Trump’s hostility towards the ICC

Donald Trump’s administration has been very clear about its “America First” foreign policy. Adviser Bolton has threatened the ICC with sanctions should it investigate American soldiers for their role in violations of international criminal law in Afghanistan. He mentioned that the US would use all means necessary to ‘protect its citizens’ from unjust prosecution by what he termed ‘an illegitimate court’.

Amongst the measures proposed are travel bans on judges and prosecutors of the ICC, sanctioning any of their funds located within the US, and prosecuting them in the US criminal justice system. The same fate would befall any company or state that cooperates with or assists the ICC in cases involving Americans as accused persons.

This bizarre outburst from the Trump administration was a reaction to the decision by the ICC Prosecutor, Fatou Bensuda to seek an investigation into alleged war crimes perpetrated by US troops and the CIA in Afghanistan.

The Rome Statute is clear that there are two jurisdictional links required before the court could exercise jurisdiction over a particular matter. These are the links of territoriality (the crime complained off must have taken place on the territory of a state party), and that of nationality (the perpetrator must be a national of a state party).

When the Prosecutor announced her decision to approach the Pre-Trial Chamber, she was clear that her request was for authorisation to open an investigation into crimes allegedly committed on Afghan soil, and the territory of other state parties. These could be crimes committed by any party to the armed conflict (American soldiers, Afghan soldiers etc). Afghanistan acceded to the Rome Statute in February 2003, therefore, any crimes taking place on its territory fall within the jurisdiction of the ICC. It does not matter what nationality the victims of American brutality were, so long as the acts constituting the war crimes and crimes against humanity took place on Afghan territory, or the territory of neighbouring states that are also party to the Rome Statute. Even though the US is not a state party, it is this territorial link that gives Donald Trump sleepless nights.

US hypocrisy and the al-Bashir connection

The Afghan investigation raises similar controversies as the Omar al-Bashir investigation/indictment. When the ICC issued a warrant of arrest against the Sudanese leader following a referral of the Sudanese violations by the UN Security Council, both al-Bashir and the African Union (AU) were outraged. They felt this was unacceptable because the alleged crimes took place on the territory of a non-party state (Sudan), and that the perpetrator was a national of a non-party state. The referral of the matter to the ICC by the Security Council was also denounced on two basis: (i) that the members of the Security Council (US, China and Russia) were non-signatory states, and (ii) the referral negated ongoing regional peace initiatives by the AU.

What seems to anger the Trump administration is that unlike al-Bashir, the US crimes do not need to be referred by the Security Council, since Afghanistan and the other affected territories are all parties to the Rome Statute. The ICC can, therefore, of its own accord (as it has recently done) initiate investigations or proceedings against American troops for their role in the atrocities in Afghanistan.

This is in line with the accepted international law of treaties. Afghanistan submitted itself to the jurisdiction of the ICC when it signed the Rome Statute, and agreed that for any violations of international law taking place on its soil, the court would have the power to prosecute those involved. Trump’s disdain at the latest developments can only be avoided if American troops stay out of foreign conflicts on foreign soil.

It would seem that the US is speaking with a forked tongue, calling for accountability and the punishment of all those who perpetrate international crimes, such as al-Bashir, whilst refusing to subject itself (and its citizens/allies) to the same rules of international law. As a permanent member of the Security Council, the US abstained from voting for the referral of the al-Bashir matter. It also did not use its veto power to block the vote, yet it has the audacity to threaten to arrest ICC judges should they subject American citizens to the same fate that befell al-Bashir.

This is quite disheartening, and is a direct attack on the independence and impartiality of the ICC judges. Such acts are nothing but bullying tactics aimed at corrupting the international law system with a view of protecting American and Israeli criminals accused of war crimes and crimes against humanity.

It is also quite worrisome that national security adviser Bolton, who has always detested the ICC, served under the Bush administration, and was instrumental in the unlawful 2003 invasion of Iraq. It would seem that the man is keen on ensuring that nothing from that illegal invasion will come back to haunt him. The unilateralist actions of the US, often peddled through 140 character tweets by Trump, are a perversion of international law, and will, if left unchecked, lead to a collapse of the international legal order. They also run the real risk of robbing the ICC of whatever little legitimacy it has left. DM