Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.
Several prominent legal experts have rightly piled on to criticize President Donald Trump’s Executive Order 13928, “Blocking Property of Certain Persons Associated with the International Criminal Court.” Most of the writers at Just Security have focused on the misguided overreach of the Executive Order. One author, Brian L. Cox, stands apart. He does not defend the Executive Order, but rather seeks to place it in perspective by highlighting alleged infirmities in the structure and function of the ICC that, in his view, led to the Trump administration’s action.
Cox makes two and a half arguments. First, he claims that by taking up investigation of U.S. nationals, the ICC treads on U.S. sovereignty. He also claims that the ICC has no mandate — that is, no legitimate authority, to investigate and prosecute Americans. Finally, he asserts that the Court’s investigation of Afghanistan is “political.” I believe the first two of those assertions is without merit and the third is without consequence.
The Sovereignty Issue
The ICC has, and asserts, no power to prosecute Americans who have committed international crimes on U.S. soil. It could do so only if authorized by the United Nations Security Council, an unlikely event given the U.S. veto power. The ICC is, however, empowered by the Rome Statute — the international treaty that establishes the court — to prosecute persons who commit international crimes on the territory of States that have affirmatively delegated their sovereign power to carrying out such investigations and prosecutions to the ICC. In this case, the ICC’s focus is on persons who have committed international crimes in connection with the armed conflict in Afghanistan. The offenses include war crimes of secret, arbitrary detention, and abuse of detainees in Afghanistan and in other countries. The limiting factor here is that all the countries in which such crimes have been committed are parties to the ICC treaty.
There are two factual elements with legal consequences at play: first, a State’s sovereign right to try crimes committed on its soil, and second, that State’s sovereign power to delegate that right to an international tribunal.
As to the first element, it is hard to fathom where the infringement on U.S. sovereignty lies in the prosecution of Americans who violate the law in other countries. We prosecute foreigners all the time when they violate our laws and we don’t claim that other countries violate our sovereignty when they prosecute Americans for violating their laws, whether it’s war crimes or parking violations. In fact, we even exercise criminal jurisdiction over non-U.S. persons who commit certain crimes, like torture, on foreign soil. Even this is not a violation of other nations’ sovereignty. Why not? Because some crimes, like torture, genocide, war crimes, and crimes against humanity, are recognized as being so serious that they constitute offenses against all of humanity, not just the countries in which they take place. As such, international law recognizes the right of all countries to try these offenders, regardless of their nationality or where the offense was committed. In fact, the exercise of universal jurisdiction is not only permitted; in some circumstances it is required — for example, in the case of grave breaches of the Geneva Conventions and under the Convention against Torture. The United States is a party to these treaties and so, cannot, under any circumstance, consider the exercise of jurisdiction over these offenses a violation of U.S. sovereignty.
The second element is the delegation of prosecutorial authority to an international tribunal. Cox identifies no basis for believing that it infringes U.S. sovereignty for Afghanistan, or any other State, to delegate to an international tribunal what it could do itself. While Status of Forces Agreements (SOFAS) and other bilateral agreements between the United States and other countries may be relevant, it is hardly clear that they affect the powers of States to delegate prosecutorial power to the ICC, or that the ICC is obligated to honor such agreements.
The notion of sovereignty includes the power to determine when, where, and by whom persons who violate a State’s laws may be held accountable. The United States has a long and honorable history of invoking the power of international tribunals to prosecute international crimes, including at Nuremberg and Tokyo in the aftermath of WWII. More recently, the United States supported the establishment of international tribunals to prosecute war crimes in the Former Yugoslavia and genocide in Rwanda under the authority of the U.N. Security Council.
This is not to say that any and all international tribunals are legitimate. They must limit their scope to clearly defined violations of law and must observe internationally recognized standards of due process. Nuremberg, Tokyo, and to a lesser extent, the ICTY and ICTR have been criticized for imposing legal consequences to conduct that was not subject to criminal sanction until after the conduct occurred. To subject Americans to ex post facto law, in violation of the international principle of legality, would, indeed, violate their rights. But the negotiators of the Rome Treaty took care to establish ICC jurisdiction only over conduct that international law had already recognized as criminally proscribed. It is, in large part, the precedents of Nuremberg, Tokyo, the ICTY, and the ICTR that establish the subject matter bona fides of the ICC.
The Mandate Issue
Having established that the ICC’s exercise of jurisdiction over Americans who commit offenses abroad does not violate U.S. sovereignty, the claim that the ICC has no mandate to try Americans is easily dispensed with.
The mandate to establish an international tribunal does have to come from somewhere. Nuremberg and Tokyo were, perhaps, weak mandates from a sovereignty perspective because those tribunals were established merely on the authority of the prevailing parties to the Second World War, to try nationals of other States. The Yugoslavia and Rwanda tribunals, on the other hand, were established by the U.N. Security Council, acting under Chapter 7 of the U.N. Charter. That’s powerful stuff, but it still imposed prosecutorial authority over persons who were not nationals of the States that comprised the Security Council, and who, in large part, did not commit their crimes on the territory of those States. The ICC suffers from none of these drawbacks. Its mandate derives from the nearly 2/3 of the world’s States that are party to the Rome Treaty, which empowers the Court to try those individuals who are nationals of a State party or who commit their crimes on the territory of a State party.
The Politics Issue
Cox describes the political origins of the ICC and accusations that its discretion is exercised in a manner influenced by politics. It is not clear to me, however, that he is using the term “political” as a pejorative in this context. Since we live on a planet organized into sovereign nation-States, anything these States decide to do on a multi- or supra-national basis, such as the negotiation of the Rome Treaty, is, by definition, political. If anything, and as Cox notes, the ICC has been accused of giving the West a pass while focusing inordinately on African States. Given the tremendous risks, consequences, and challenges the ICC faces in targeting Americans — as noted by Cox and confirmed by the Trump administration’s ignominious reaction, it would be hard to conclude that the ICC Prosecutor and the Court are motivated by the desire to mollify its African critics, rather than to properly fulfill the Court’s mandate. Of course, if one believes that U.S. persons have not committed crimes rising to a level that justifies ICC scrutiny, or that the United States has effectively imposed accountability for such crimes, then one may suspect that politics are at play. The record should disabuse any observer that either is the case.
Gabor Rona is Professor of Practice at Cardozo Law School. His amicus brief was cited by the ICC Appellate Chamber in support of the Court’s power to exercise jurisdiction over CIA-related crimes committed in Rome Statute States other than Afghanistan, to the extent those crimes are committed in the context of, and associated with, the Afghanistan armed conflict.