President Trump moved Thursday to protect American service members from prosecution by the International Criminal Court at The Hague with an executive order outlining a series of countermeasures that may be taken against ICC personnel if Americans are investigated.
“The men and women of the United States Armed Forces will never appear before the ICC,” Defense Secretary Mark Esper said at a joint press conference at the State Department alongside Secretary of State Mike Pompeo, Attorney General William Barr, and national security adviser Robert O’Brien.
Pompeo described a hypothetical “nightmare” scenario whereby an American service member is on leave with their family at a beach in Europe and is detained and transferred to the court for “taking down terrorists” in Afghanistan.
“This nightmare could become reality if the International Criminal Court follows through with its ideological crusade against American service members,” Pompeo said.
The move was triggered by a March 5 ICC decision to investigate alleged war crimes committed in Afghanistan, a party state to the Rome Statute that established the court.
The four administration leaders made clear that the Rome Statute was not ratified by the U.S., and any action taken against Americans is a violation of American sovereignty.
ICC spokesman Fadi El Abdallah told the Washington Examiner that party states “have the obligation to cooperate” with an ICC request to surrender an accused person in their territory.
“States parties to the Rome Statute have the obligation to cooperate with the ICC, but they can also ask the ICC Judges for exceptions based, for [example], on the existence of contradiction with other international obligations they may have,” he said.
El Abdallah emphasized that the ICC is a court of “last resort,” which only comes into play if an individual is not under a “genuine” investigation for the same conduct elsewhere.
The so-called “principle of complementarity” meant little to the Trump administration officials who took potshots at the court Thursday and accused it of being corrupt and ineffective.
“We cannot and will not stand by as our people are threatened by a kangaroo court,” said Pompeo, warning that the citizens of allies who fought alongside the U.S. in Afghanistan may also be targeted.
Esper further defended the reasons why Americans are in Afghanistan.
“Today, our service members remain on the front lines of the fights against terrorists, war criminals, and perpetrators of genocide such as ISIS,” he said.
Since the U.S. does not recognize the jurisdiction of the court, Esper said any information about alleged misconduct should be turned over to U.S. authorities for a possible military or civilian court investigation.
The defense secretary said that nearly 800,000 U.S. troops have served in Afghanistan over the past 19 years, with 20,000 of them wounded and 2,000 dead while fighting to stop terrorism and give the Afghan people a better life.
Countermeasures against ICC officials
Pompeo said the presidential executive order authorizes the U.S. to impose economic sanctions against ICC officials engaged in efforts to investigate U.S. or allied personnel and against others who materially support the activities.
Furthermore, Pompeo said the U.S. will expand visa restrictions for officials involved in the investigations, as well as their family members.
“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 defender of those very freedoms,” he said.
Between December 2017 and February 2018, 699 victim stories were delivered to the ICC pretrial chamber. While the first attempt to open an investigation was denied in April 2019, the appeal approved in March paves the way for the ICC’s prosecutor to open an investigation against Americans.
That means that even though the U.S. does not recognize the court, countries that are parties to the Rome Statute may detain and surrender an accused American citizen on their territory.
A preliminary examination in 2007 considered crimes against humanity and war crimes, including murder, executions, and attacks against civilians, according to the ICC website.
Afghanistan acceded to the Rome Statute in 2003, meaning crimes committed on its territory may be brought before the ICC.
Some 60 countries globally have ratified the Rome Statute, agreeing to surrender an individual to the court, much in the same way an accused is transferred to a country for trial through an extradition treaty.
The ICC did not respond by deadline to requests for an official response to Thursday’s Trump administration announcement.
