President Donald Trump doesn’t like to see Americans in foreign prisons. On this matter, the International Criminal Court is going to test his patience.
Trump has built an impressive record of freeing our fellow citizens imprisoned abroad. His personal intervention with Chinese President Xi Jinping brought home Sandy Phan-Gillis who was accused of spying and held for two years. More recently he arranged for three UCLA basketball players to avoid Chinese leg irons after being caught shoplifting.
The President got Aya Hijazi, a U.S. charity worker, out of Egypt after three years in custody. And Otto Warmbier came home after 18 brutal months in a North Korean prison but tragically died shortly after being reunited with his family.
Trump has declared American citizens off limits for show trials in foreign lands. But the International Criminal Court (ICC) based in The Hague has other ideas.
On November 20, the ICC’s chief prosecutor, Fatou Bensouda, claimed “a reasonable basis to believe” that between May 2003 and December 2014, members of the U.S. armed forces and CIA committed war crimes in Afghanistan. She further asserts that between December 2002 and March 2008, members of the CIA subjected terrorists to “outrages upon personal dignity,” and more in Poland, Romania and Lithuania. She’s seeking a full investigation.
Bensouda is a trophy hunting trial lawyer who knows there is no greater prize in her profession than an American scalp acquired in a global court. This is the first time the ICC has targeted Americans, though Bensouda has been attempting to build a case for the last ten years. To deliberately confuse the issue, she is investigating the Taliban, Haqqani Network, and Afghan National Security Forces simultaneously.
Although the U.S. is not a member of the ICC, Bensouda asserts “all legal criteria required under the [ICC’s] Rome statute to commence an investigation have been met.” To her, Americans are fair game because the alleged crimes took place in Afghanistan, which is a member of the ICC, as are Poland, Romania and Lithuania.
The idea that Bensouda can investigate U.S. citizens based on another country’s membership in the ICC is a spurious legal loophole. The ICC claims “jurisdiction where national legal systems fail to do so,” or in cases in which nations “purport to act” but fail to satisfy the ICC. It’s the so-called “principle of complementarity” which Bensouda cites as her authority for investigating Americans. When the ICC treaty was crafted the Clinton administration knew this provision was problematic but allowed it to remain.
The ICC is a bastard child of international law and Bill Clinton was its Lamaze partner. He supported the idea, telling the 1997 UN General Assembly that “before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law.”
His administration helped to write the Rome Statute which was adopted on July 17, 1998. Though the United States was one of seven countries to vote against it, Clinton later signed the treaty at the 11th hour on New Year’s Eve 2000 but withheld it from Senate ratification.
Senator Jesse Helms, who chaired the Senate Foreign Relations Committee at the time, said in July 1998, that the ICC was “irreparably flawed” and represented “a very real threat.” He warned that “the statute purports to give this international court jurisdiction over American citizens even if the United States refuses to sign or ratify the treaty. It empowers this court to sit in judgment of the United States foreign policy.”
He was right on all counts, but his last point is the most telling. Like Robert Mueller, who wants to fry the biggest fish he can catch, Fatou Bensouda won’t be satisfied with a few front-line operatives. Her targets are George W. Bush, Don Rumsfeld, George Tenent and much of the U.S. national security apparatus during the Bush 43 administration.
In her bill of particulars, she makes no secret about this. Of previous investigations carried out in the United States she writes, “None … appear to have examined the criminal responsibility of those who developed, authorised or bore oversight responsibility for the implementation by members of the US armed forces [and CIA] of the interrogation techniques.”
President Trump has shown a healthy skepticism of international treaties and to the likes of Fatou Bensouda. Here, he should do the same and prohibit any executive branch from cooperating with the ICC in any way. America’s military and diplomats must never be forced to answer to a foreign tribunal. Case closed.
Tom Kilgannon is the President of Freedom Alliance and the author of Diplomatic Divorce: Why America Should End Its Love Affair With the United Nations.