On Friday, the International Criminal Court emerged as the latest example, after it confirmed that the United States had revoked its prosecutor’s entry visa, amid her pending inquiry into possible war crimes committed by U.S. troops in Afghanistan from November 2017. The United States is one of several nations that signed but never ratified the Rome Statute, the ICC’s founding treaty.
In a separate incident that raises similar questions, the Dutch Foreign Ministry urged U.S. authorities on Friday to clarify reports that several lawyers defending European terrorism suspects have been denied U.S. visas. In a statement, Foreign Minister Stef Blok said: “It is of great importance that lawyers can do their jobs independently and defend suspects.”
The ICC said that prosecutor Fatou Bensouda might still be able to travel to the United States to brief the U.N. Security Council and to meet other U.N. obligations, and U.S. officials have similarly indicated that this would be the case.
In a statement to The Washington Post, the prosecutor’s office of the ICC wrote that Bensouda would continue to do her work “without fear or favor.”
The office did not respond to questions about whether the revocation of the entry visa was in response to her Afghanistan war crimes inquiry.
But on March 15, Secretary of State Mike Pompeo threatened the ICC with exactly this step and said that the implementation had already begun.
“You should know if you’re responsible for the proposed ICC investigation of U.S. personnel in connection with the situation in Afghanistan, you should not assume that you will still have or will get a visa, or that you will be permitted to enter the United States,” Pompeo said. He threatened “to take additional steps, including economic sanctions, if the ICC does not change its course.”
A State Department spokesman confirmed Friday that Bensouda’s visa has been revoked but declined to provide further details, citing the confidentiality of visa records.
“The United States will take the necessary steps to protect its sovereignty and to protect our people from unjust investigation and prosecution by the International Criminal Court,” the spokesman said. ". . . One such measure now being implemented restricts the issuance of U.S. visas for those ICC officials who are determined to be directly responsible for any ICC effort to conduct a formal investigation of U.S. or allied personnel without the relevant country’s consent.”
The spokesman added that the U.S. government “will not interfere” with travel to the United Nations in New York “for official U.N. purposes.”
Friday’s confirmation marks an escalation pitting a court deeply valued by many U.S. allies against the world’s most powerful nation that has refused to acknowledge its jurisdiction. With a mandate to prosecute war crimes, genocide and crimes against humanity, the court’s supporters say, the ICC has played a crucial role in bringing to justice perpetrators who might otherwise have walked free.
But with more than 120 member states whose interests vary widely and include democracies and authoritarian nations, the ICC has always been vulnerable to criticism of bias and politicization, especially from Africa, where a vast share of inquiries takes place.
Democratic and Republican observers have taken an ambiguous approach to the court, at times recognizing the prosecution of warlords and others — and at other times condemning the institution when prosecutors’ focus turns in a direction unfavorable to the United States or its allies.
Besides the United States, not many Western democracies have refused to submit to the court’s jurisdiction. Another relevant case featured Israel, after the Palestinian Authority asked the court to launch an inquiry into alleged crimes by the Israelis in the West Bank and Gaza Strip.
To justify its hard-line stance, the Trump administration has argued that the ICC is “attacking America’s rule of law.” Pompeo said in March, “The United States has declined to join the ICC because of its broad, unaccountable prosecutorial powers and the threat it poses to American national sovereignty.
“We feared that the court could eventually pursue politically motivated prosecutions of Americans, and our fears were warranted,” Pompeo said.
The U.S. government’s rationale is that membership in the ICC would be detrimental to the rule of law because international tribunals should be case-specific — for instance, exclusively focused on the Rwandan genocide — and mostly concentrate on nations without independent courts or authorities to enforce the law. Accepting ICC jurisdiction would run against the independence of the U.S. court system, that rationale goes.
In September, national security adviser John Bolton pointedly summarized the decades-long consensus, responding to the pending inquiry into possible U.S. war crimes in Afghanistan: “We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”
But critics of that stance have questioned whether the independence of U.S. courts alone can explain the staunch U.S. opposition to the court, pointing to the fact that almost all other Western nations with similarly independent judiciaries have come to the opposite conclusion.
“Trump may think that revoking the International Criminal Court prosecutor’s visa will dissuade her from examining U.S. torture in Afghanistan, but it only underscores his own determination not to prosecute it, highlighting the need for the ICC,” wrote Kenneth Roth, the executive director of Human Rights Watch.
Underlying the dispute may be a fundamentally different understanding of what the ICC is and what role international institutions should play in preventing violence and crimes.
When the court’s founding treaty was drafted more than 20 years ago, starting in 1995, the German government played a key role. The United States helped integrate postwar Germany in a web of international institutions to prevent a resurgence of nationalism, and by the time the ICC was created half a century later, Germans had become some of the strongest advocates of multilateralism and joint projects such as the ICC.
But the Americans disagreed, exposing a shift in a country that had just emerged victorious from the Cold War and was the undisputed world power for a brief moment in history. At some point during the ICC treaty’s negotiations, the U.S. government even threatened to withdraw its troops from Germany to prevent the ICC’s creation — to no avail.
To European nations, not becoming a member of the ICC themselves would have set an example that would almost certainly have rendered the efforts meaningless, as the court relies on member states to extradite suspects and for funding.
When the ICC celebrated its founding treaty’s 20th anniversary last year, European lawmakers hailed the institution as a role model that needs more, and not less, support for its “much-needed mandate to deliver justice for victims of the world’s worst crimes,” a Human Rights Watch official summarized at the time.
In Washington, lawmakers appear to have a very different understanding of what that justice should look like, with an administration that appears willing to risk a showdown with a court that U.S. allies around the world will not easily abandon.
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