The announcement escalates a long-standing dispute with the Netherlands-based court, established 18 years ago under the Treaty of Rome. The United States has never ratified the treaty or recognized the court’s jurisdiction.
The Trump administration has taken a particularly tough stand against what it calls the court’s attempts to violate U.S. sovereignty and pose a national security threat. In 2018, when he was national security adviser, John Bolton vowed that the United States would not cooperate with the court and declared, “For all intents and purposes, the ICC is already dead to us.”
The measures announced Thursday include economic sanctions against any ICC officials involved in efforts to investigate “allied personnel without that ally’s consent” and an extension to family members of visa restrictions already in effect against those officials.
“Imagine an American soldier, sailor, airman, Marine or an intelligence officer is on leave with his or her family, maybe on a beach in Europe,” Secretary of State Mike Pompeo said at a brief appearance with the others at the State Department. “And over the course of two decades or more, this soldier honorably defended America in Anbar province, in Kandahar, taking down terrorists. Then, suddenly, that vacation turns into a nightmare.”
“We cannot, we will not stand by as our people are threatened by a kangaroo court,” he added.
Standing at his side, Defense Secretary Mike T. Esper said, “We will not allow American citizens who have served our country to be subjected to illegitimate investigations.” The U.S. military and civilian justice systems are fully capable of taking “appropriate action” against alleged misconduct, including “alleged abuse of detainees or any other misconduct,” Esper said.
Pompeo also called a proposed ICC investigation of Israeli security forces in the West Bank and Gaza Strip a “mockery of justice.”
The ICC is designed as a court of last resort, used only after countries are unable or unwilling to take action against their own citizens accused of war crimes. The United States has prosecuted troops for criminal conduct committed during the war in Afghanistan. Human rights groups have complained the numbers are relatively small and have not included high-level officers and U.S. officials who may have issued orders.
Trump has intervened in several cases involving war-crimes accusations despite opposition from military justice experts and some senior Pentagon officials.
The ICC investigation will not focus solely on allegations against U.S. troops. Lead prosecutor Fatou Bensouda wants to investigate possible crimes committed by the Taliban and other groups between 2003 and 2014, including alleged mass killings of civilians, as well as the alleged torture of prisoners by Afghan authorities and, to a lesser degree, by U.S. forces and the CIA.
Attorney General William P. Barr said a March decision by the court to authorize the investigation of U.S. operations in Afghanistan “validates long-standing concerns” that the ICC is “little more than a political tool employed by unaccountable international elites . . . to manipulate and undercut the foreign policy” of the United States and its allies.
Barr said the Justice Department has launched its own investigation of “a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor of the ICC,” including information that “may well have a bearing on current investigations” by the court.
Human rights groups expressed concerns that the executive order was overly broad and vague and could put human rights researchers at risk in countries allied with the United States, such as the Philippines.
“This is yet another instance of the Trump administration taking action that will alienate many of America’s closest allies while contributing to an atmosphere of impunity for the world’s worst human rights abusers,” said Rob Berschinski, vice president for policy at Human Rights First.
Daniel Balson, advocacy director for Amnesty International USA, said the United States could achieve more by working to change multilateral institutions rather than attacking them.
“The administration has done nothing in that realm,” he said.
All the speakers at the State Department on Thursday, including White House national security adviser Robert O’Brien, noted that successive administrations have never recognized the court and said that U.S. citizens are not subject to its jurisdiction.
The officials finished their remarks and abruptly left the room, taking no questions from reporters assembled for the announcement.