Why the Trump administration is sanctioning a top international court

The US wants to protect its personnel serving in Afghanistan, and it also wants to protect Israel.

President Donald Trump signed an executive order on Thursday sanctioning members of the International Criminal Court, the global judicial body investigating American troops for possible war crimes during the Afghanistan war.

The provocative move targets court staff involved in the probe, as well as their families, blocking them from accessing assets held in US financial institutions and from visiting America. Top members of the Trump administration — including Secretary of State Mike Pompeo and Defense Secretary Mark Esper — made the announcement with surprisingly forceful language to make their point.

“We cannot allow ICC officials and their families to come to the United States to shop, travel, and otherwise enjoy American freedoms as these same officials seek to prosecute the defenders of those very freedoms,” Pompeo, a former Army officer, told reporters without taking questions.

At first glance, the order appears solely designed to pressure lawyers into dropping the investigation of US military and intelligence personnel, specifically their treatment of detainees in Afghanistan and Europe from 2003 to 2004. While that’s a major reason for Trump’s decision, there’s another equally important one: persuading the court not to open an official probe into Israel’s policies toward the Palestinian territories.

At Palestine’s request, the ICC is on the verge of officially investigating alleged war crimes by Israelis and Palestinians during the 2014 Gaza war, and may also determine if Israeli settlements in the West Bank constitute a war crime. That possibility has severely angered Trump administration leaders, perhaps none more than Pompeo.

“We’re also gravely concerned about the threat the court poses to Israel,” he said on Thursday. “It’s clear the ICC is only putting Israel in its crosshairs for nakedly political purposes.”

It was only a month ago Pompeo promised to “exact consequences” on the ICC if it didn’t lay off Israel. Now, those consequences have been exacted. “This is for sure the most serious step the administration has taken against the court,” David Bosco, an expert on the ICC at Indiana University Bloomington, told me.

But the move may ultimately have a more pernicious effect. Elizabeth Evenson, the associate director for international justice at Human Rights Watch, said it’s “really an effort to try to thwart the access of victims to justice before the ICC.”

Which means the US didn’t just open a unilateral fight against a global court. It launched a judicial world war that could further harm people the US may have already severely mistreated.

The longstanding US-ICC fight, briefly explained

To understand the action the Trump administration just took, it’s important to understand the two decades of tensions between the ICC and the US.

The ICC is a permanent intergovernmental body located in The Hague, in the Netherlands, tasked with prosecuting individuals for war crimes, crimes against humanity, and genocide. The body was established by the Rome Statute in 2002, which has since been ratified by 123 countries — but not the United States, even though it did sign onto it.

The reason the US didn’t want to be under the court’s jurisdiction is simple enough: US leaders from both parties feared the ICC could prosecute Americans — and especially troops operating around the world — outside of the American legal system.

President Bill Clinton, initially a supporter of the ICC, delayed signing the Rome Statute by 18 months until December 31, 2000, the last possible day, over concerns the body would interfere with US military activities. Afterward, Clinton encouraged President George W. Bush to further negotiate terms of the statute before submitting it for Senate approval.

Atilgan Ozdil/Anadolu Agency/Getty Images

But Bush actively opposed ratification, believing Americans would be unfairly prosecuted, and declared in May 2002 that the US would not pursue official ICC membership. President Barack Obama made no further effort to join the ICC, though his administration lent assistance to ICC investigations as a way to strengthen the America’s relationship with the court.

Enter Trump, who has made his antagonism toward international organizations — and specifically the ICC — a constant of his foreign policy.

“As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority,” he said during his 2018 UN address. “The ICC claims near-universal jurisdiction over the citizens of every country, violating all principles of justice, fairness, and due process. We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”

He’s followed through on that antagonism already, revoking ICC prosecutor Fatou Bensouda’s US visa last year over the Afghanistan war inquiry. Trump’s hope, experts said, was to stop Bensouda from pursuing the case. Instead, she persisted — leading the president to escalate his spat with Thursday’s executive order.

“It’s an attempt to obstruct the prosecutor’s independence,” Human Rights Watch’s Evenson told me.

Why the ICC is looking into possible US war crimes during the Afghanistan war

After a years-long, dragged-out process, the ICC in March decided it would officially pursue its case into alleged war crimes during the war in Afghanistan.

Even though the US isn’t party to the court, Afghanistan is. The body’s lawyers believe they have the right to investigate any potential war crimes that happen within a member state, according to experts.

Importantly, though, the ICC’s probe isn’t just into what US troops have done. Lawyers are also digging into actions by the Taliban and Afghan forces during the conflict. But a main focus certainly will be on allegations that US personnel illegally detained prisoners between 2003 and 2004 not only in Afghanistan, but also in Lithuania, Poland, and Romania.

“The information available provides a reasonable basis to believe that members of United States of America (“US”) armed forces and members of the Central Intelligence Agency (“CIA”) committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003-2004 period,” the prosecutor wrote in 2017.

It’s still unclear, of course, what exactly happened in those locations. But the ACLU already represents three detainees who claim they were tortured in Afghanistan during that time period, and Human Rights Watch estimates that the US held about 1,000 prisoners during that era. Among them were two men detained by US forces two months in 2013 after their brother was killed in an explosion. The US released both men after determining they had nothing to do with the bombing and had no affiliation with anti-US groups.

Wakil Kohsar/AFP via Getty Images

The probe into American conduct during the war, some experts say, is why the Trump administration has continually denounced the court. That seems clear based on what top officials say about it.

“The ICC’s effort to target American servicemen and women and other public servants are unfounded, illegitimate, and make a mockery of justice,” Robert O’Brien, the national security, said during Thursday’s press conference.

He also asserted, without evidence or specificity, that “our adversaries are manipulating the ICC by encouraging these allegations” — a claim experts said they hadn’t heard the US make about the court before.

The administration may be talking tough, freezing assets, and restricting visas because it knows it’s in a good position.

The Afghan government is opposed to the ICC probe, and the US will clearly not cooperate with it. It’ll therefore be very hard for global prosecutors to make any progress on the American aspect of the investigation.

“I think it will be a long time before we see any arrest warrants,” said Indiana University’s Bosco. Indeed, any concrete action may come long after Trump leaves the Oval Office, even if he’s reelected this year.

Which is another indication that Thursday’s decision is less about this specific ICC case and more about another one facing a key US ally: Israel.

It’s one thing to go after America. It’s another to go after Israel, too.

In December, the ICC said it had concluded a preliminary investigation into alleged war crimes during the 2014 Gaza War and continued Israeli settlements in the West Bank, which the court may determine are war crimes themselves. The result wasn’t what Israel’s government wanted to hear.

“In brief, I am satisfied that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip,” Bensouda, the chief prosecutor, said. There are “no substantial reasons to believe that an investigation would not serve the interests of justice.”

The next step is for the ICC to officially open a probe into both matters the Palestinians, who are ICC members while Israelis are not, referred to the court.

The war part is easy to understand. A skirmish that began over murdered Israeli students turned into a seven-week fight between Hamas, the militant groups that controls that Gaza Strip, and Israel.

Israel started launching airstrikes on Gaza, and Palestinians responded by firing rockets into Israel. Then on July 17, 2014, the Israeli military invaded Gaza, in part to close down tunnels that allowed Hamas to secretly enter Israel and attack the country. Ground fighting led to a spike in Palestinian casualties, which quickly went from a few hundred into the thousands.

The conflict eventually ended in August, with both sides agreeing to an Egypt-brokered ceasefire. Israel said it would relax the blockade on Gaza; Hamas declared that it won the war. More than 2,100 Palestinians and 71 Israelis were killed, while more than 10,000 people — mostly Palestinians — sustained injuries.

Ahmed Hjazy/Pacific Press/LightRocket via Getty Images

As for the West Bank, about 500,000 Israelis have moved into the territory since Israel captured it in a 1967 war. Palestinians say such settlements ruin any chance of having a sovereign country in the future after striking a peace deal with Israel.

There’s clearly a lot for the ICC to look into, which is why the global court is moving forward with the probes. And yet, Israeli Prime Minister Benjamin Netanyahu, a staunch Trump administration ally, blasted the December announcement at the time, calling it a “black day for truth and justice” and a “baseless and scandalous decision.” His stance surely hasn’t changed, evidenced by the fact he has plans to annex much of the West Bank in the near future with US support.

Of course, Netanyahu has a lot to worry about personally. In the US case, those who may get in trouble are mid-level troops or CIA staffers. In the Israeli case — which features high-level policy decisions — someone at the minister level, including Netanyahu himself, may face prosecution.

Put together, America fired a warning shot so the ICC stops looking into Israel, signaling the worst may yet be to come if it doesn’t.

The ICC announcement could lead to further problems down the line

There are now four major outstanding questions after the executive order’s release, all of which could lead to trouble for either the US or the ICC.

The first is whether or not the Trump administration’s aggressive moves will lead the ICC to back off both cases. No experts I spoke to, though, believe that’ll happen. “It will occasion some turmoil among the ICC’s team, but won’t make the prosecutor abandon the probe,” Bosco said.

The second is what US allies that are ICC members and have their own qualms with the court — mainly the UK, Japan, and Germany — will say. They all have their own troubled war histories, but most experts expect them to stand up for the global body. If that’s the case, it’s likely America’s play will backfire.

“This is yet another instance of the Trump administration taking action that will alienate many of America’s closest allies while contributing to an atmosphere of impunity for the world’s worst human rights abusers,” said Rob Berschinski, the senior vice president of Human Rights First.

Third, the executive order is problematic as written, experts say.

Many note it’s possible for a foreigner working at a human rights organization to be sanctioned by the US if they help write a report that leads to an ICC investigation of an ally. A hypothetical Berschinski outlined was this: If a non-American writes a piece on extrajudicial killings in the Philippines that assists the ICC in a probe of President Rodrigo Duterte, it’s possible the US government now has the right to freeze that person’s assets.

It’s unclear the government would follow through, of course, but it’s not out of the question.

Finally, Attorney General Bill Barr made a threatening statement toward the end of Thursday’s press conference. “The US government has reason to doubt the honesty of the ICC,” he said. “The Department of Justice has received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”

It’s unclear what, exactly, he’s referring to. Some experts said he might be referencing a 2017 scandal in which the previous ICC chief prosecutor was found to have offshore bank accounts and a dubious advisory role with a Libyan billionaire. But if that’s the case — and no expert can think of what else Barr might be talking about — it’s three-year-old news.

Trump’s move, then, leads to more questions than it answers. The main one, of course, is if it will actually work as intended. As of now, it doesn’t look that way.

Conor Murray contributed to this report.