The U.S. Must Reject the International Criminal Court’s Attack on Its National Sovereignty

By John Yoo & Ivana Stradner

Tuesday, March 17, 2020

Last week, the International Criminal Court (ICC) authorized an investigation of alleged war crimes and crimes against humanity by U.S., Afghan, and Taliban troops in Afghanistan, as well as by CIA black sites operated in Poland, Lithuania, and Romania. While the prosecution will likely fail, it represents another effort by a global elite — consisting of European governments, international organizations, and their supporting interest groups, academics, and activists — to threaten American sovereignty.

The Rome Statute, which established the ICC in 1998, was supported by 120 states. It had the worthy goal of preventing the world’s most horrific crimes. Today the ICC can exercise jurisdiction over war crimes, crimes against humanity, aggression, and genocide. Its founders believed that an international organization in the form of a court could replace the customary role of nation-states to punish those who violate the rules of civilized warfare.

The Clinton administration signed the treaty in 2000, but did not submit it for Senate ratification. American support for the court dissolved after 9/11, as American officials worried that the ICC would become an anti-American kangaroo court used by certain countries to constrain nation-state sovereignty. In 2002, the Bush administration announced that it would not sign the agreement, and empowered then-State Department official John Bolton to lead a U.S. campaign to sign bilateral immunity agreements with more than 100 countries to protect both parties from the ICC’s jurisdiction.

Ever since, the ICC has labored ineffectually. To date, the Court has spent more than $2 billion dollars and yielded just eight successful convictions and four acquittals, focusing only on African countries. While there are 123 member states, nations that still might have to wage war, such as the U.S., Israel, India, South Korea, China, and Russia, have refused to join. America’s Western European allies, perhaps still hoping for a utopian future where war has disappeared and meager conventional forces are all that is needed, lend the ICC its greatest support.

Most ICC officials have long hoped to achieve international relevance by attacking the ICC’s greatest critic: the United States. Since November 2017, ICC chief prosecutor Fatou Bensouda has sought to use alleged crimes in Afghanistan to bring charges against the U.S. military and intelligence community. America’s response has been tough, and after numerous threats by the ICC, U.S. secretary of state Mike Pompeo ordered the revocation of the ICC chief prosecutor’s U.S. entry visa (though Bensouda managed to circumvent the ban and attend her UN meetings last April). The ICC Pre-Trial Chamber later ruled against an investigation (and possible prosecution) of the U.S. for alleged crimes in Afghanistan because both would most likely fail. Last week, however, the ICC’s appellate court reversed this finding and allowed Bensouda to continue her pursuits of American activities in Afghanistan and elsewhere after 9/11.

To end this charade, the U.S. should continue to challenge the Court’s jurisdiction and protect the rights of nations that are bound only by rules to which they consent. The Trump administration should continue to deny ICC officials and any government officials (such as any military or law enforcement officers) that assist them from entering the United States or using its financial system. Most important, the United States should strike at the ICC through its supporters. Japan, the United Kingdom, France, Italy, Canada, Spain, Mexico, and Australia are all major Court funders. The Trump administration should warn countries who are ICC top funders yet depend utterly on the U.S. for their defense (such as Japan) that they cannot expect American troops to protect any nation seeking to prosecute and imprison them. It should weaken defense ties with ICC member countries, and cut foreign aid to any nation that cooperates with the Court.

With these actions, the Trump administration will defend the rights, not just of the United States, but of all sovereign nations. America did not join the Rome Statute. It remains unfettered by its requirements. To protect international law, it should refuse to recognize any ICC probe. International rules should only bind nations that consent to them. Allowing the ICC to claim power over the U.S., which does not consent to its jurisdiction will erode any incentive to obey any international rules at all. The ICC’s actions threaten the only true mechanism for deterring human rights abuses.

Subjecting U.S. forces to an after-the-fact and idealistic human-rights barometer will only discourage Washington from intervening to end massive human-rights abuses in difficult world hotspots. If the global elite want the U.S. to lead efforts to end killings in places such as Syria, Yemen, or Sudan, the last thing it should do is prosecute American troops when they take on the difficult jobs that no other nation can or will do.