In an attempt to justify his astonishing imposition of economic retribution against the International Criminal Court chief prosecutor and one of her aides, U.S. Secretary of State Michael Pompeo authored an op-ed published by Fox News in September in which he said the ICC “has gone rogue.”
Pompeo announced the sanctions against ICC Chief Prosecutor Fatou Bensouda on Sept. 2, in response to her investigation into potential war crimes in Afghanistan.
The secretary has drawn sharp rebukes from the American Bar Association and other highly respected organizations, including organizations of all the leading faiths in the U. S., America’s allied countries and eminent American citizens.
To go “rogue” means to operate outside the boundaries of the law, generally accepted norms or morality. Nothing that the ICC has done bears out that suggestion.
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The states that established the ICC and joined the ICC treaty gave the court jurisdiction over conduct that takes place in the territory of those states. Afghanistan is one such state. So are all NATO countries except the United States and Turkey. In total, there are 123 member states.
According to a principle of international law, articulated by the U.S. Supreme Court in 1812 in the Schooner Exchange case, every country has absolute jurisdiction over events within its territory. That includes the actions of foreigners. It is the sovereign right of the country with jurisdiction to sign over that jurisdiction, by agreeing to a treaty that has that effect. That is what Afghanistan did when it became a party to the ICC treaty.
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Most of ICC’s interest in relation to events in Afghanistan concern not the actions of U.S. personnel, but rather the alleged conduct of the Taliban and Afghan national security personnel. These include terrorist acts such as beheadings, suicide bombings, and improvised explosive device attacks. ICC’s interest was engaged because justice for the victims had not been done in Afghanistan in respect of these crimes.
Most of ICC’s interest in relation to events in Afghanistan concern not the actions of U.S. personnel, but rather the alleged conducts of the Taliban and Afghan national security personnel. These include terrorist acts such as beheadings, suicide bombings, and improvised explosive device attacks. ICC’s interest was engaged because justice for the victims had not been done in Afghanistan in respect of these crimes.
The limited extent of questions concerning U.S. personnel relate to acts of torture and other offenses alleged to have been committed against detainees. The alleged violations occurred before 2009 — long before the current administration came into power. No American soldier is under any sort of suspicion for wrongful conduct while actually engaged in combat in defense of the U.S.
US SANCTIONS INTERNATIONAL CRIMINAL COURT PROSECUTOR OVER PROBE INTO AMERICAN FORCES IN AFGHANISTAN
Torture is categorically forbidden in international law. There is a specific treaty — the Convention Against Torture – that says so, and the U.S. is a party to it.
U.S. federal law — including but not limited to section 2340A of Title 18 of the United States Code — specifically makes it a crime for American officials to commit torture, even while abroad. In that connection, the U.S. Congress, on October 28, 2004, declared the sense of Congress in the following words: “The Constitution, laws, and treaties of the United States and the applicable guidance and regulations of the United States Government prohibit the torture or cruel, inhuman, or degrading treatment of foreign prisoners held in custody by the United States.”
It cannot be correct to say that the ICC has “gone rogue” in insisting to ask questions of justice that are entirely consistent with both international law and U.S. law when it is alleged that torture had been committed — and, furthermore, when a U.S. Senate select committee inquiry specifically gives credence to those allegations.
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There is yet one more dimension that accentuates Pompeo’s recent designations as a gross abuse of America’s power to deal with a national “emergency” as grounds for economic coercion.
Since March 5, when the appellate judges authorized Prosecutor Bensouda to investigate the alleged events that occurred in Afghanistan — because it is a member state of the ICC treaty — Bensouda has not actually moved on the file. She has frozen activity while considering a request by Afghanistan to cease further action and allow the Afghan national justice system space to exercise its primary jurisdiction.
This state of affairs betrays no national emergency — even accepting the very peculiar idea that seeking to do justice is something that would be accepted as provoking a “national emergency” for the United States.
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In addition, Secretary Pompeo also attempted to portray Chief Prosecutor Bensouda as a willing political tool against Israel. But consider this contradictory fact. In 2013, the government of Comoros asked the prosecutor to investigate the Gaza flotilla incident of 2010, which involved allegations of war crimes against members of Israel Defence Forces. Bensouda steadfastly declined to open the investigation. She has been consistent in that refusal, despite repeated applications of Comoros for judicial review of her decision.
All this is to say that Pompeo’s attacks against the ICC through the coercive measures against its personnel are wrong. The American Bar Association and the world at large have urged him to reverse the designations made against Bensouda and her aide. The secretary should agree to that request.
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