Collective punishment against ICC officials – and their families

In a move that was stunning even to cold-eyed observers of the Trump administration’s persistent attacks on the International Criminal Court (ICC), Secretary of State Mike Pompeo announced last Tuesday that the U.S. would seek to sanction not only the staff of the ICC, two of whom he cited by name, but also their families, in order to punish the court for its efforts to pursue an investigation into war crimes and crimes against humanity in Afghanistan since 2003, including crimes committed by U.S. forces there.

Pompeo explicitly named the ICC Prosecutor Fatou Bensouda’s chef de cabinet, Sam Shoamanesh, and the court’s Head of Jurisdiction, Complementarity, and Cooperation, Phakiso Mochochoko, for “helping drive ICC prosecutor Bensouda’s effort to use this court to investigate Americans,” claiming that, by doing so, they are “putting Americans at risk.” In a naked act of coercion, Pompeo explicitly threatened both these staff members and their family members, citing travel bans as an example of the punishment they would face: “We want to identify those responsible for this partisan investigation and their family members who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans.”

This wasn’t the first time the U.S. government has taken a swipe at the court on the chance it may prosecute Americans. After President George W. Bush “unsigned” the Rome Statute in 2002 (it had been signed by President Clinton but was never ratified by the Senate), the U.S. passed a law called the American Service-Members’ Protection Act — more humorously known as the “Hague Invasion Act” – to allow for US military forces to “free” any American or “allied person” detained by or for the ICC. More recently, the State Department revoked Bensouda’s visa to the U.S., announced a visa ban against ICC officials involved in the Afghanistan investigation, and threatened economic sanctions if the case proceeded against U.S. nationals.

Such intimidation of the officials of a judicial body – whose 123 sovereign member states oversee the operations of the ICC and have the power to remove its judges if they abuse their power – is unlawful, violating basic norms of customary international law not to interfere with the proceedings of a court. Even former U.S. officials involved in the prosecution of war crimes came out to condemn the attack as “crude,” “reckless” and “shocking” threats. Of course, there is nothing unique about a foreign court trying U.S. nationals who commit crimes abroad; this happens every day, just as the U.S. prosecutes foreign nationals who commit crimes in the U.S. itself. There is, however, something uniquely perverse about Washington attacking and attempting to interfere with the administration of a lawfully established judicial body simply because it is investigating Americans.

What does appear to be unprecedented in Pompeo’s announcement is its explicit, and official, act of unlawful collective punishment against family members of judicial officials as a way to pressure and punish the judicial officials themselves. The prohibition on collective punishment is a fundamental principle of human rights law (e.g. no one should be punished for a crime they didn’t commit), and both customary international law and the Geneva Conventions explicitly ban acts of collective punishment. The U.S. military takes note of this ban in its own manuals. But no matter what law applies, an attack on family members of court officials is a particularly thuggish move by our government.

The travel bans and threatened asset freezes are also an abuse of the U.S. government’s authority to use sanctions as a measure of punishment against those who actually violate a law – not just those whose actions we don’t like. It’s one thing to threaten to sanction individuals who violate the human rights of others; it’s another to wield that authority to punish people around the world outside of any apparent legislative authority to do so. While the U.S. did use Magnitsky Act sanctions against the Turkish Interior and Justice ministers for imprisoning American pastor Andrew Brunson, it relied on the executive authority to sanction persons involved in “serious human rights abuse.” In this case, by contrast, Washington is sanctioning court officials who are simply carrying out their legal mandate to prosecute human right abuses, just because the Trump administration has accused them of leading a “politicized” investigation.

The United States has never been a complete enemy of the International Criminal Court; it’s been happy to refer other states for prosecution there with no apparent qualms about the court’s independence and fairness or politicization. Indeed, Washington championed the UN Security Council’s referral of Libya and Syria for prosecution by the ICC and abstained from, but did not veto, Sudan’s referral to the ICC. The U.S. also assisted the court in gaining jurisdiction over two wanted war criminals: Bosco Ntaganda, a Congolese rebel leader, in 2012; and Dominic Ongwen, a Lord’s Resistance Army commander, in 2015. In 2013, the U.S. amended its war crimes rewards program to explicitly cover rewards for tips leading to the arrest of foreigners (though not Americans!) wanted by the ICC. If there’s an argument to be made for politicization of the ICC, the U.S.’s own record stands out.

The U.S. could have tried (and can still try) to defend against the Afghanistan investigation by showing that it credibly prosecuted the crimes in question. The ICC is a “court of last resort” that can only exercise jurisdiction if it finds that a country is unwilling or unable to prosecute the crimes itself. It’s unlikely, however, that such an effort would work, given the near total failure of the US to hold its own military forces and CIA accountable for their crimes in Afghanistan (and dark sites in Poland, Lithuania and Romania where Al Qaeda detainees from Afghanistan were secretly held), including torture, rape and other forms of sexual violence. The Prosecutor’s initial request for an investigation argued as much, noting U.S. investigations to date had merely targeted the rank-and-file and not those in charge of the crimes.

From the Bush Administration, to the Obama administration, to the Trump administration, the U.S. record for atrocities committed by its officials has been one of impunity. Department of Justice investigations of CIA detainee abuses, including two deaths in custody, resulted in no charges being brought. Even the Senate concluded the CIA had engaged in persistent cover-ups of widespread, brutal interrogations, for which no one was held accountable.

So the terrible “risk” that Pompeo is seeking to shield American soldiers from, and US officials have described as a “national security threat,” is the chance they would, at last, be held accountable for some of the worst atrocities against Afghans. Sadly, the recent record of President Trump pardoning even U.S. military personnel convicted by our own military courts of war crimes will only strengthen any international prosecutor’s case that the US is not serious about justice or accountability.

If the Trump administration and Pompeo succeed in bullying the ICC into submission, the damage to the court will be grave. As it is, its credibility is frail, having so far brought cases exclusively against Africans — leading it to be dubbed the “African Criminal Court.” The only two cases against non-Africans that the court has authorized to move into the investigation phase are this Afghanistan investigation and another in Palestine. If political pressure forces the prosecutor to give up these cases, even if on jurisdictional technicalities, it may sound the death knell for the court. Burundi and The Philippines have already withdrawn from the court. It is unlikely any wanted official will ever again agree to submit to the court’s jurisdiction, citing the Washington’s description of the court as “abusive” and “partisan;” if the court isn’t good enough to try American officials, why should it be allowed to try those of any other state? Some of these nations will be in battles with U.S. soldiers, and they too will act in a way unconstrained by any concern for accountability. The damage will be far greater for civilians around the world, who will lose whatever small measure of restraint and protection threatened prosecution by the ICC affords them in a time of war.

And the damage will be to America as well, far beyond the harm it inflicts to Washington’s credibility in this brazen effort to punish court officials and their families. The possibility of ICC prosecution, particularly in the face of failed U.S. military discipline and accountability, can and should act not only to ensure that U.S. forces and intelligence officers abide by international law, but also to inhibit Washington’s propensity to deploy U.S. forces abroad willy-nilly to fight ill-defined, never-ending missions abroad that may place them in legal jeopardy. To the extent that this leads Washington policy makers to think longer and harder – exactly as we want them to – before resorting to military force except in those narrow circumstances where there is a clear and imminent threat to the United States, Americans and the whole world will be better off.