After weeks of national upheaval and soul-searching, the Trump administration is finally taking aggressive action to rein in a group of out-of-control law enforcement officials, accusing these officials of using their vast powers in a capricious and discriminatory manner, hiding from accountability, and forcing innocent American citizens to live their lives in fear. Which law enforcement body is finally facing Trump’s wrath? The International Criminal Court, of course.
Secretary of State Mike Pompeo, Secretary of Defense Mark Esper, and Attorney General William Barr announced the latest U.S. salvo against the court on Thursday, authorizing sanctions against ICC employees involved in an ongoing investigation into alleged U.S. war crimes in Afghanistan. They did not specify which officials would be sanctioned. Axios reports that the sanctions announcement was coordinated with Israel, which is also facing an ICC investigation into alleged war crimes in the West Bank and Gaza.
Tensions have been building for a while between the Trump administration and the ICC, the international court based in The Hague and set up to investigate war crimes and crimes against humanity. Then–national security adviser and longtime ICC critic John Bolton first threatened action against court officials in a September 2018 speech. In March 2019, Pompeo announced a policy of visa bans on officials involved in investigations of U.S. personnel. (That policy was extended to family members of those officials on Thursday.) ICC Chief Prosecutor Fatou Bensouda had her U.S. visa revoked the following month. Despite this pressure, the ICC earlier this year authorized Bensouda to conduct an investigation into war crimes committed in Afghanistan. The investigation is looking into crimes by a number of actors in the long-running conflict, also including the Afghan government and the Taliban. When it comes to the U.S., the ICC prosecutor claims to have evidence that military and CIA personnel “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan,” mainly in 2003 and 2004. (The U.S. is not a member of the ICC, but Afghanistan is, meaning that crimes committed on Afghan soil fall within its jurisdiction.)
Still, economic sanctions are a significant escalation. Trump probably does have the legal authority to do this. The president’s executive order Thursday cites the International Emergency Economic Powers Act, which gives the president authority to regulate commerce in response to an “unusual and extraordinary threat” to U.S. national security. Neil Bhatiya, a sanctions expert and adjunct fellow at the Center for a New American Security, wrote in an email that the president “can basically define [unusual and extraordinary threat] however he wants. That’s pretty much a limitless vista on which to use economic coercion.” U.S. courts have never found that a president lacked authority to set up a sanctions program.
Trump used the same law last year to impose tariffs on Mexico in order to pressure its government to stop what he called an “invasion” of immigrants. Both examples, Bhatiya notes, are “completely out of character for how previous administrations have used it, which is generally against national security threats of a violent or illicit nature: drugs, terrorism, WMDs, human rights violations.”
During Thursday’s press conference, Barr suggested that “foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda” as well as “serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.” He did not provide evidence for either allegation or take questions from reporters.
Pompeo sketched a lurid scenario in which “an American soldier, sailor, airman, Marine, or an intelligence officer is on leave with his or her family, maybe on a beach in Europe” when “that vacation turns into a nightmare” after the soldier is taken into custody on “politically motivated charges.”
This makes it sound as if the prosecutors would target rank-and-file American service members if they dared step foot in a country where the ICC has jurisdiction. But as ICC expert David Bosco notes, if charges are eventually filed—and that’s a big if—they would almost certainly be against the civilian policymakers who authorized torture or other crimes.
So, what’s the point of this? Previous punitive actions by the Trump administration haven’t stopped the ICC’s Afghanistan investigation. In fact, they’ve only rallied international support for an otherwise beleaguered institution.
There’s already been a law on the books in the U.S. since 2002, nicknamed the “Hague Invasion Act,” authorizing actions including military force to liberate any Americans detained by the ICC. The likelihood that any Americans will find themselves behind bars in The Hague for actions in Afghanistan is pretty low, and if the court does take any action, it’s unlikely to come for years. This is not the most pressing of national security threats, and it’s a little hard to understand why it’s what the country’s most powerful officials are prioritizing right now, particularly at a time when U.S. diplomats have some other issues on their plate.
There’s also some irony in the fact that this announcement comes as the White House is locked in a dispute over the release of Bolton’s tell-all memoir. Bolton, who made opposition to the ICC a lifelong crusade, clearly feels bitter about his experience in the White House. But judging from the administration’s recent foreign policy actions—controversial new sanctions on Iran, escalating tensions with China, withdrawal from the World Health Organization and now sanctions against the ICC—it’s hard to tell that he ever left.