U.S. Needs a New ICC Strategy

The State Department announced sanctions yesterday on two senior officials of the International Criminal Court (ICC) for their role in an “unjust and illegitimate investigation” of alleged war crimes committed by U.S. personnel. While the sanctions are not likely to weaken the ICC’s resolve to pursue the investigation, a more effective U.S. strategy could be built on the existing broad bipartisan sentiment that the investigation is indeed illegitimate and inappropriate.

Since the ICC’s founding two decades ago, all U.S. administrations, of both parties, have refused to join the ICC or to otherwise be bound by its governing treaty (the Rome Statue), in part because they feared the ICC’s politicization and misuse. In addition, the Rome Statute authorizes the court to investigate only those crimes allegedly committed by persons whose national justice systems are “unwilling or unable” to investigate.

In June, President Donald Trump signed an executive order authorizing sanctions on ICC employees engaged in investigating U.S. or allied personnel without the consent of the United States or the relevant allied government. The latter provision relates mainly to Israel, the target of a similarly inappropriate investigation.

The response to Trump’s executive order demonstrated the potential for backlash from sanctions. ICC chief judge Chile Eboe-Osuji declared the ICC is “undeterred” by what he called a “grotesque” executive order contrary to international law. Meanwhile, 67 ICC member nations issued a joint statement rallying around the Court and promising it their “full support.”

The furor generated overseas and in the United States by the executive order and sanctions have obscured the strong bipartisan support in Washington for the view that the ICC investigations of the United States and Israel are illegitimate and should be halted. For example, Obama administration lead officials for ICC and detainee issues have asserted the two investigations are not legitimately within the ICC’s legal purview. In May, 262 House members, led by Elaine Luria (D-VA) and Mike Gallagher (R-WI), asserted that the ICC does not have “legitimate jurisdiction” in the two cases, and urged the ICC to “cease its politically motivated investigations into the United States and Israel.” Meanwhile, 69 Senators, led by Rob Portman (R-OH) and Ben Cardin (D-MD), asserted the ICC does not have “legitimate jurisdiction” in the Israel case and opposed that case’s “dangerous politicization of the Court.”

The stakes for U.S. and Israeli security are high. The Military Coalition, representing more than 5.5 million current and former U.S. service members, recently warned the ICC investigation of the United States “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.” Experts have speculated that the ICC could indict former president George W. Bush and former CIA directors including George Tenet and current Secretary of State Mike Pompeo.

Israel faces similar risks. Its government has reportedly prepared a list of several hundred current and former Israeli officials, including the prime minister, who could be subject to arrest abroad if the ICC moves forward against Israel.

The United States can more effectively attempt to block the ICC’s illegitimate investigations by building on bipartisan support at home and leveraging common ground with allies. The United States should emphasize that potential ICC steps forthcoming in 2020 that are hostile to American interests could cause damage to the court’s relationship with the United States that would outlast the current administration.

In recent years, more than half the ICC’s €155 million annual budget has come from a handful of close U.S. allies: Japan, Germany, the United Kingdom, France, Italy, Canada, and Spain. These allies can remind the ICC of the substantively strong arguments that its investigations of the United States and Israel are contrary to the ICC’s own rules and clash with its founding principles. By steering the ICC away from confrontation with the United States, these allies can protect their own overseas military personnel from problematic precedents.

By December, the ICC will elect a new chief prosecutor and may take pivotal steps in its investigations of the United States and Israel. A sophisticated, measured, and bipartisan U.S. strategy could help point the ICC in the right direction for the next decade.

Orde Kittrie is a law professor at Arizona State University and a senior fellow at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Military and Political Power (CMPP) and Center on Economic and Financial Power (CEFP). He previously served for a decade as an attorney in the State Department Legal Adviser’s Office and is the author of Lawfare: Law as a Weapon of War (Oxford University Press, 2016). For more analysis from Orde, CMPP, and CEFP, please subscribe HERE. Follow Orde on Twitter @ordefk. Follow FDD on Twitter @FDD and @FDD_CMPP and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.