Amidst the national crisis triggered by the ongoing coronavirus pandemic, Secretary of State Mike Pompeo delivered brief remarks last week, in which he managed to find time to fire a series of jabs at the International Criminal Court (ICC). Pompeo was reacting to the Appeals Chamber’s green lighting an investigation of crimes related to the conflict in Afghanistan, which includes alleged torture of detainees by U.S. personnel. Given the brevity and sharpness of Pompeo’s remarks, they bear quoting in full:
Turning to the ICC, a so-called court which is revealing itself to be a nakedly political body:
As I said the last time I stood before you, we oppose any effort by the ICC to exercise jurisdiction over U.S. personnel. We will not tolerate its inappropriate and unjust attempts to investigate or prosecute Americans. When our personnel are accused of a crime, they face justice in our country.
It has recently come to my attention that the chef de cabinet to the prosecutor, Sam Shoamanesh, and the head of jurisdiction, complementarity, and cooperation division, Phakiso Mochochoko, are helping drive ICC prosecutor Fatou Bensouda’s effort to use this court to investigate Americans. I’m examining this information now and considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.
We want to identify those responsible for this partisan investigation and their family members who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans.
This court, the ICC, is an embarrassment. It’s exposing and – we are exposing and confronting its abuses, and this is a true example of American leadership to ensure that multilateral institutions actually perform the missions for which they were designed.
These words are inaccurate — factually and legally — and raise deep problems from a policy perspective. ICC watchers have already roundly criticized Pompeo and the Trump administration for these remarks. Just Security published a joint statement by a group of Ambassadors and other former senior American officials describing Pompeo’s remarks as an “act of raw intimidation of the Prosecutor’s staff members [that] is reckless and shocking in its display of fear rather than strength.” The remarks were also quickly condemned by various international criminal law experts on Twitter and by civil society organizations, such as Amnesty International, which described Pompeo’s comments as “callous and punitive.”
This article will point out some of the most obvious inaccuracies (and contradictions) in Pompeo’s statement, but that is not its only point. It’s also worth exploring the counterintuitive prospect that these latest remarks by Pompeo, when coupled with similar positions articulated by other U.S. officials and members of Congress, may ultimately backfire, by helping to bolster the legitimacy of the ICC in the eyes of many others around the world.
Substance of Pompeo’s Remarks
An impressive aspect of Pompeo’s remarks is his ability to pack so many inaccuracies and deeply problematic assertions into a mere 216 words.
Pompeo leads into his remarks with the assertion that the ICC is a “nakedly political body.” This criticism is seemingly intended to deny the ICC the status of being a judicial body that is — at least somewhat — insulated from politics. Even Pompeo must acknowledge that ad hominem retaliation against judges and judicial personnel is a tactic employed by autocrats the world over; denying the judicial nature of the ICC gives him greater license to target identified court staff as supposed political opponents. Indeed, the Trump administration’s position has been that the ICC (and other international or multilateral institutions) should be viewed as political bodies and are to be deeply distrusted by the United States.
While the ICC is a creature of international diplomatic negotiation, forged by a multilateral treaty (the Rome Statute), there is no question that what states created is a court — whose officials are vested with judicial independence to exercise those powers that are inherent in the role of judge and entitled to the privileges and immunities enjoyed by all international civil servants.
Yet, even on Pompeo’s own terms (i.e., that the ICC is just a political body), the argument underlying his complaints about the Court’s actions are self-contradictory. Even if one views the ICC as a political body, it is nonetheless still operating well within its capabilities in investigating alleged crimes committed by all forces, including U.S. personnel, on the territory of ICC member states. The ICC’s jurisdiction is carefully circumscribed by the Rome Statute, based on negotiated agreements between the sovereign states that created the Court and have become members. As such, the ICC — whether Pompeo wants to view it as a court, political body, or something else altogether — has been authorized to act by its members under defined circumstances and is doing so here.
The assertion that the ICC is a political institution undergirds Pompeo’s main frustration with the Court and its Prosecutor: that the latter has been authorized to investigate U.S. government personnel for international crimes alleged to have been committed in connection with extraordinary rendition and torture operations taking place at least partially within select European nations and Afghanistan, and that the Court might, theoretically, seek to exercise jurisdiction over one or more U.S. defendants at some point in the future. As David Luban points out in a previous Just Security article:
The … ICC investigation will examine only crimes committed on the territories of ICC member states, who have agreed to share their own (undeniable) criminal jurisdiction over their own territories with the ICC. Afghanistan joined the ICC in 2003. Poland has belonged since 2001, Romania since 2002, and Lithuania since 2003.
Afghanistan, Poland, Romania and Lithuania are the specific ICC member countries named by the ICC Office of the Prosecutor where alleged acts of torture and mistreatment of detainees by U.S. CIA or military actors have been proven to have occurred. As Luban notes, it is an “undeniable” and fundamental rule of international law and basic attribute of sovereignty that the nations of the world enjoy inherent territorial-based criminal law jurisdiction. That is, each country has the absolute right to prosecute anyone (absent some form of immunity) who participates in the commission of a crime on its territory. ICC Prosecutor Bensouda has been very clear that her office is exclusively investigating alleged crimes committed by U.S. nationals on the territory of ICC member countries, an approach approved by the ICC Appeals Chamber in its decision authorizing the investigation. It is this particular detail that makes Pompeo’s assertion — that the ICC has somehow gone rogue and is operating outside the scope of its mandate — clearly wrong. That’s even if one accepts his already dubious claim that the ICC is somehow a wholly political institution that has none of the characteristics of a court.
Pompeo is also clearly erroneous in asserting that “[w]hen our personnel are accused of a crime, they face justice in our country.” If legitimate efforts had been made to investigate and prosecute U.S. personnel who participated in the rendition and torture programs following the attacks of 9/11, Bensouda would lose her ability to bring charges. The Court is premised on the principle of complementarity, which requires the Prosecutor to stay her hand if there are genuine investigations and prosecutions happening in the domestic courts of a state with jurisdiction. Indeed, many have speculated that if the United States had prosecuted even just a handful of the most egregious cases of torture and mistreatment (including those cases that resulted in the death of detainees), particularly when the perpetrators acted beyond what was ostensibly authorized by the Office of Legal Council’s so-called “torture memos,” the Prosecutor would have defensible grounds to focus her attention on the crimes of the Taliban and other Afghan armed groups (to be clear, I do not share this view).
Instead, the United States has promoted a policy of not pursuing any accountability for its treatment of detainees, including under the Obama administration after it explicitly acknowledged that water-boarding and other so-called “enhanced interrogation techniques” constitute torture (see e.g. here, here and see also this Senate Report executive summary). This approach has undermined the credibility of any complementarity arguments the United States might raise. President Trump’s recent and unprecedented pardon of individuals accused — by their fellow service men and women –of war crimes in Afghanistan — only reinforces the impression that the United States has promoted impunity rather than accountability for abuses related to the Afghan war, thus giving the lie to Pompeo’s claim that our justice systems work.
These inaccuracies have become standard fare in statements referencing the ICC by U.S. officials and are not surprising. In his most recent remarks, Pompeo renews his threats, stating that not only is the State Department “considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk” but also that the Department has a desire to “identify those responsible for this partisan investigation and their family members who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans.” The threatened extension of travel bans or other sanctions to potential family members of ICC personnel is remarkable in this context, but standard fare with other U.S. sanctions programs, such as the “drug kingpins” sanctions authority, which enables the United States to target the family members of designated individuals.
Beyond these general threats, Pompeo goes on to make (very thinly) veiled personal threats against two ICC employees by name: Sam Shoamanesh, a Canadian lawyer who holds the post of Chef de Cabinet to the Prosecutor at the ICC, and Phakiso Mochochoko, a Lesothan lawyer who is head of the ICC’s Jurisdiction, Complementarity and Cooperation Division. Pompeo suggests that these two individuals may be barred from entering the United States, much as Bensouda herself was in April of last year when her visa was revoked. In doing so, Pompeo seeks to extend the same treatment to those who would dare to participate in the investigation of U.S. citizens for torture and other international crimes, as he has directed toward non-U.S. citizens alleged to have themselves directly participated in international crimes (see e.g. this previous Just Security article on Pompeo himself announcing recent travel restrictions against a Sri Lankan general alleged to have committed war crimes).
These statements also suggest that the United States is expending resources to determine the specific identities and roles of individuals at the ICC who are potentially contributing to the investigation of U.S. citizens. Notably, given the roles of the two currently named individuals, neither person is likely involved in actual investigations in Afghanistan at all. Shoamanesh is essentially Bensouda’s chief of staff and Mochochoko heads the division that would manage any complementarity challenge that might be leveled by the United States.
A travel restriction is one thing, and perhaps Pompeo overestimates the desire of these and other ICC employees to travel to the United States.
What is more chilling, however, is Pompeo’s vague statement that his office will be “considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.” It is more than a little hyperbolic for Pompeo to assert that ICC employees who participate in the Afghanistan investigation are “putting Americans at risk.” It is even more troubling that he states that unspecified “next steps” may be taken against these individuals. Presumably at a scale greater than travel restrictions, unspecified “next steps” being threatened by the Secretary of State of a global superpower may be highly menacing, if not terrifying. At a minimum, this could extend to freezing the assets of these individuals if they are held in banks within the United States’ grasp.
Finally, Pompeo’s remarks regarding the ICC close by circling back to the assertion that the Court is somehow deviating from the “mission” it was “designed” for by investigating alleged international crimes committed by U.S. citizens on the territory of ICC member countries. Of course, investigating international crimes occurring on the territory of member nations is the main function the ICC was designed and authorized to perform by the 122 states that ratified the Rome Statute.
Do Pompeo’s Remarks Help Legitimize the ICC?
In short, Pompeo’s remarks amount, in substance, to little more than an abhorrent form of bullying.
While likely doing little to dissuade those at the ICC and elsewhere who are committed to seeking accountability for the United States’ previous rendition and torture program, Pompeo’s remarks may actually be playing a role in legitimizing the ICC in the eyes of some of its harshest critics and inspiring otherwise vaguely supportive states to defend and strengthen the institution in the face of this attack.
When it comes to one set of detractors, the ICC has for years been subject to sustained critique by actors whose views are otherwise diametrically opposed to those of Pompeo and the Trump administration — making for an odd set of bedfellows to say the least. These critics often situate the ICC within a broader dominance of free-market neoliberalism in global politics and specifically what Karen Engle refers to as a related “turn” to criminal law within human rights and global justice discourses. According to such critics (with whom, in full disclosure, I often agree), the ICC and international criminal law more generally, may play a role in a politics of distraction — drawing attention away from more fundamental, and primarily structural, global justice issues such as radical economic inequality and toward spectacular outbursts of horrific violence that themselves are decontextualized and oversimplified.
For example, Tor Krever argues that “the triumphalism surrounding [international criminal law] and its adequacy to deal with conflict and violence ignores the factors and forces – including specific international legal interventions in countries’ political economies – that shape or even help establish the environment from which such conflict and violence emanate.” Along these lines, Christine Schwöbel-Patel argues that international criminal law prosecutions may provide a form of placation and comfort, depressing political will to do more while failing to address the root causes of the violence itself.
Indeed, some argue the stance of being critical of the ICC and the broader international criminal justice project (described pithily by Gerry Simpson as an “anti anti-impunity stance”) has become a highly influential position among academic commentators. For example, ICC expert Darryl Robinson has observed that “the critical note has come to dominate the discourse” of international criminal law. This is particularly true for those who, unlike Pompeo and the Trump administration, tend to view themselves as progressives and lean politically to the left.
Of course, academics (including myself) often tend toward an inflated view of their importance outside of the academy. In the realm of international criminal law, this may not be quite so true as in other areas. For example, scholars often advise governments and help educate students who are or become government lawyers, and international courts, the ICC included, regularly rely quite heavily on scholarship in jurisprudence. International criminal law scholars, in short, continue to play an important role in shaping the trajectory of international criminal justice.
The more Pompeo aggressively postures the Trump administration as being fundamentally against the ICC, the more some of the institutions most strident critics may begin to feel that their criticisms of the Court are being lumped in, or even recruited by, this administration’s racist and deeply xenophobic agenda. I, for one, feel an ever more pressing need to carefully tailor my language when it comes to issues of concern I continue to have with the structure and operations of the ICC, lest I risk being recruited, willingly or not, into that agenda.
Regardless of any influence of academics, many countries, including those who are ICC members, are likely to shift toward a more favorable view of the ICC in light of Pompeo’s attack. In particular, many governments have voiced disapproval of the ICC’s tendencies to focus on the culpability of relatively weak actors, while failing to go after citizens of powerful countries. Double standards in the administration of criminal justice can be crippling to core legitimacy claims of neutrality, impartiality and evenhandedness. Americans should be well-acquainted with such claims when it comes to their own criminal justice system and its radically unequal treatment of individuals across racial and economic lines.
By having taken this aggressive political stance against the Court, Pompeo may help shore up the credibility of the ICC in the eyes of many states around the world. It is harder to claim the ICC is biased in favor of powerful countries and willing to bend to those governments’ interests when the U.S. Secretary of State scorns the Court in stark terms and appears willing to cripple it.
Pompeo’s aggressive anti-ICC rhetoric, combined with the fact that the Court appears to be finally trying to investigate all sides of the protracted, highly destructive Afghan conflict, may give some of the ICC’s critics at least one reason to support the Court: opposing the Trump administration’s relentless agenda to kill the institution based on mendacious explanations for doing so.