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Despite U.S. sanctions, the International Criminal Court will keep investigating alleged war crimes in Afghanistan

The Washington Post logo The Washington Post 6/16/2020 Kelebogile Zvobgo, Stephen Chaudoin
a close up of a glass building: The International Criminal Court in The Hague. © Peter Dejong/AP The International Criminal Court in The Hague.

President Trump declared a national emergency last Thursday — but it wasn’t about the covid-19 pandemic or police brutality or nationwide protests. Rather, the subject of the emergency declaration was the International Criminal Court, the body investigating the United States for suspected war crimes in Afghanistan.

Trump announced that the ICC represents an “unusual and extraordinary threat to the national security and foreign policy of the United States.” The executive order pushes back by authorizing economic and diplomatic sanctions on ICC personnel working on the Afghanistan probe and anyone who helps them.

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The Trump administration has consistently and directly opposed the ICC, in contrast to the more passive opposition or even ad hoc support from previous administrations. The goal, as amplified by other U.S. officials, is to undermine the court, not only by interfering with the Afghanistan investigation but also investigations that don’t directly affect the United States.

Yet the timing of this action seems odd, given the ongoing domestic health crisis, economic downturn and political crisis. Why now? And what will be the effect?

The ICC is investigating possible U.S. crimes in Afghanistan

In March, the ICC’s appeals chamber authorized Chief Prosecutor Fatou Bensouda to investigate possible crimes committed in Afghanistan by U.S. and non-U.S. forces and intelligence, including the Afghan National Security Forces and the Taliban. The authorization came nearly a year after the pretrial chamber initially rejected Bensouda’s request to open an investigation.

Now, she and her team will investigate alleged “torture, cruel treatment, outrages upon personal dignity, and rape,” among other issues. The U.S. isn’t currently a member of the ICC. But Afghanistan, the country where the alleged abuses occurred, is a member. That puts the United States within the ICC’s jurisdiction.

What’s in the executive order?

The sanctions order applies to any foreign person who materially supports or is directly involved in ICC efforts to “investigate, arrest, detain or prosecute any United States personnel.” It includes freezing these individuals’ U.S.-based financial assets and restricting their travel. The sanctions also apply to immediate family members.

On first reading, the scope of the order is very wide, giving administration officials broad leeway in its application. The inclusion of family members is notable because a 2019 Trump executive order to sanction terrorists didn’t include their family members. Another unusual aspect of this executive order is the implication that U.S. officials could target human rights advocates and nongovernmental organizations, since they regularly work with the ICC and affected communities on investigations.

Sanctions, sanctions and more sanctions

Trump administration officials have threatened ICC-related sanctions before. For instance, in 2018, national security adviser John Bolton advocated for sanctions against any entity that assisted the court. But there was no follow-through.

In March 2019, ahead of the court’s pretrial chamber decision to authorize or to not authorize the Afghanistan probe, Secretary of State Mike Pompeo threatened visa restrictions and economic sanctions on any non-U.S. citizens who furthered the probe. The State Department revoked Bensouda’s visa to visit the United States less than a month later.

But the timing of this latest round of sanctions differs from the previous one. In past skirmishes with the ICC, the Trump administration acted quickly, even preemptively. For instance, Bensouda’s visa was revoked before the decision of the pretrial chamber, which denied her permission to open the investigation.

When the appeals chamber overturned the lower chamber’s decision on March 5, clearing the path for the probe, Pompeo quickly fired back. He promised to take “all necessary measures” to prevent the investigation from targeting U.S. personnel.

But that was three months ago. Why order sanctions now?

The U.S. is running the same play

A notable component of the latest sanctions is that they go beyond ICC officials investigating the United States to include officials investigating U.S. allies. Pompeo’s statement last week explicitly mentions the most important of these allies — Israel.

Chief Prosecutor Bensouda in December brought forward a request to open an investigation into possible crimes committed in Palestinian territories since 2014. The pretrial chamber is expected to rule on the request soon. Trump’s executive order may be an attempt to deter the pretrial chamber from authorizing the request, but also stymie the investigation if the request goes through.

This isn’t without precedent. Pompeo’s threats last year apparently worked: The pretrial judges blocked the Afghanistan probe. Legal scholars and human rights advocates criticized the decision and speculated that the judges had capitulated to U.S. pressure. The ICC ultimately reversed the decision, but the delay roadblocked any investigation into Afghanistan for a time.

Trump may be running the same play here — taking a bold move in the hopes that it pressures the pretrial chamber to deny authorization of the Palestine investigation.

What’s likely to happen next?

The ICC shows few signs of backing down. Within the day, the court’s public affairs unit responded, calling Trump’s actions an “attempt to interfere,” “an escalation,” “unacceptable” and contrary to the rule of law. The statement — which echoes criticisms from ICC member states — elaborates, “An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice.”

In the U.S. court of public opinion, Trump’s strategy may not stoke antagonism toward the ICC. Our research indicates most Americans support the ICC and are concerned about U.S. world leadership and human rights. These concerns, combined with criticism of the sanctions from U.S. allies who are ICC members, may mean Americans will continue to support the court — despite Trump.

Trump’s efforts may even backfire, triggering a type of “Streisand Effect,” where attempts to hamper investigations invite additional, negative public scrutiny. Trump is already polling poorly ahead of the November elections. ICC sanctions may not help.

Trump probably considers the sanctions a move with some possible benefits — a distraction from troubles at home, or a way to hinder the Palestinian or Afghan investigations — and minimal costs. The administration team has grown accustomed to condemnation from abroad over “America First” policy. But ordinary citizens may disagree.

Kelebogile Zvobgo (@kelly_zvobgo) is founder and director of the International Justice Lab at William & Mary and a PhD candidate in political science and international relations at the University of Southern California.

Stephen Chaudoin (@StephenChaudoin) is an assistant professor of government at Harvard University.

Read more:

John Bolton attacked the ICC. Cooperating with it might be a better way to protect U.S. interests.

The International Criminal Court is set to investigate alleged U.S. war crimes in Afghanistan

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