In early September, the Trump administration sanctioned two members of the International Criminal Court, or ICC, in an attempt to disrupt their investigations into alleged U.S. war crimes in Afghanistan. The sanctions, which target the ICC’s head prosecutor and head of jurisdiction, block access to their U.S. assets and restrict commercial and financial dealings with U.S. persons.
The ICC was created by the Rome Agreement, which was adopted by over 100 nations in 1998 and came into force in 2002. While more than half the countries in the world on all continents are members, the largest nations — such as China, Russia, the U.S., India, Pakistan and Myanmar, where human rights violations are rampant — are not.
The ICC is a court of last resort to bring justice to people who would otherwise have no recourse. While the Court has been criticized by some for focusing disproportionate attention on rights violations in Africa, it has pursued important cases on other continents as well. Between The Lines’ Melinda Tuhus spoke with Daniel Balson, advocacy director for Europe and Central Asia with Amnesty International USA. Here, he explains how the court works and why the action of the Trump regime is so concerning.
DANIEL BALSON: So, the International Criminal Court is exactly what it sounds like, it’s a criminal court, essentially of last resort. Its mandate is to try the gravest violations of human rights that take place: that includes the crime of genocide, crimes of aggression and other extremely grave crimes against humanity. It exists mainly to insert itself in cases where local jurisdictions, other state parties and other governments are either unwilling or unable to bring justice to victims. The jurisdiction that it claims is jurisdiction on the territory of countries that are state parties. This is relevant in our discussion today: Afghanistan is a state party.
MELINDA TUHUS: And our discussion today revolves around the possibility of bringing charges against U.S. personnel for crimes committed in Afghanistan, is that right?
DANIEL BALSON: In a sense. So the ICC is investigating human rights violations or grave crimes that have taken place in Afghanistan. This includes crimes committed by all parties to the conflict. This includes non-state actors such as the Islamic State and the Taliban. This includes the government of Afghanistan and it could potentially include U.S. government actors such as the U.S. military, U.S. intelligence agencies. The court has not officially come out and said, “These are the specific crimes we’re looking at. These are the specific individuals we suspect of having committed crimes.” They have not charged anyone. But they are looking at all crimes that have taken place without giving or offering impunity to one particular actor or another, and the U.S. could potentially be implicated in this, yes.
MELINDA TUHUS: The U.S. never joined the ICC over the course of two Democratic and two Republican administrations. But the Trump administration seems to have gone even further in its opposition. Can you explain?
DANIEL BALSON: Sure. So, a few months ago, the Trump administration passed an executive order that gave the president, in conjunction with the secretary of state and the secretary of the Treasury, the power to sanction individuals from the ICC. When we’re talking about sanctions we talking about two things: asset freezes; that means money transiting through the U.S. financial system or held in the U.S. financial system such as real estate or money held in a U.S. bank or moving through a U.S. bank would be frozen by that institution and it means visa bans, essentially individuals or their families will no longer have visas to come to the U.S. and if they have visas, those visas will be rescinded. So issuing that executive order merely gave the executive the power to implement these sanctions against staff of the ICC and those who provide them material support. What you saw a week and change ago is the Trump administration then effectuate that power. They declared two individuals (Chief Prosecutor) Fatou Bensouda, and her deputy as sanctioned individuals, squarely for their work for the ICC and support for international justice.
It’s important to mention the gravity of this action. U.S. government sanctions and the sanctions program is really designed to target the worst of the worst, and this is how the Treasury Department describes it themselves. They’re typically deployed against narco-traffickers, international terrorists, weapons of mass destruction proliferators – really, some of the most nefarious actors in the international arena. So for them to be deployed against, essentially, prosecutors, which is what they are — individuals that are staffing and supporting the ICC, is a stunning escalation.
MELINDA TUHUS: Are there any ways to combat Trump’s decision?
DANIEL BALSON: I would argue that there are two. First of all, I think a lot of eyes are now turning to Congress. I mentioned that there is skepticism of the ICC in Congress, in some quarters, that’s true. At the same time, very few members of Congress would independently support and authorize this use of a sanctions mechanism that Congress authorized the president to have, to use that powers against the Internationl Criminal Court. There’s not a huge appetite in the legislative branch to misuse and abuse the sanctions mechanism to target prosecutors for international justice. So it’s imperative that Congress speak out.
And then, all eyes should turn to Rome Statute signatories that have the power to challenge this decision. So it’s important for countries that are state party to the Rome Statute in the ICC and that object to this decision – and the number of such countries is quite substantial – it’s important for these countries to express their concern, their dissent with this decision both privately and through public channels as well.