By Leila Nadya Sadat
[This article was originally posted on June 29, 2020 on Just Security. It was published in conjunction with an article by Diane Marie Amann, “I help children in armed conflict. The President is forcing me to stop.”]
President Donald Trump has taken the unprecedented step of issuing an Executive Order (EO) declaring the International Criminal Court (ICC) to be a “national security threat.”
The ICC? Really? Threatening the national security of a world superpower? This is a Court that has no police force of its own; is located far away in The Hague; has no territorial jurisdiction over the United States as the state has not joined the ICC’s founding Treaty. This is simply a Court of last resort, which steps in if no State is able or willing to prosecute those accused of committing the most heinous crimes known to humankind under laws that the United States accepts and used itself to prosecute the Nazis at Nuremberg. Yes, the Court has on its docket the investigation of crimes in Afghanistan and the possibility of investigating crimes in Palestine that implicate important U.S. interests, but there are many more reasonable measures the administration could have adopted to advance those interests than declaring that they constitute a “national emergency” and that the Institution authorizing them and persons conducting them should be punished for their “transgressions.”
The press conference announcing the EO order was full of hyperbole, scaremongering, and bluster, and has provoked an overwhelmingly negative reaction from several U.S. war crimes ambassadors, the American Bar Association, the International Bar Association, academics and a number of NGOs. As former war crimes ambassadors Clint Williamson, David Scheffer and Stephen Rapp have noted, the EO is largely “self-defeating,” and threatens US standing and leadership in the world.
Former Treasury Senior Advisor Adam Smith has catalogued some of the far-reaching implications of the Executive Order, which invokes the national emergency provisions of the International Emergency Economic Powers Act (IEEPA). According to Smith, under the IEEPA, punitive sanctions under the EO could broadly affect those who provide any kind of services to the International Criminal Court, including banks, insurance companies, consultants, airlines, and staffing services, as well as “U.S. persons … working with or for the Court.”
This would presumably include individuals like myself who have been pro bono consultants to the Office of the Prosecutor, visiting professionals, perhaps even defense counsel, staff, or individuals filing amicus briefs – even victims and witnesses. Those of us who have worked on ICC issues for many years have done so out of a sense of commitment to the ideals enshrined in the Court’s founding document: we recognize that “grave crimes threaten the peace, security and well-being of the world,” and insist that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be insured by taking measures at the national level and by enhancing international cooperation.” As a special advisor to the ICC Prosecutor, I have spent years, and even before that decades, analyzing the legal elements of crimes against humanity in some of the most grievous situations on earth. Mine is but a small part; those working for the Court as international lawyers and human rights defenders are tasked with applying and analyzing international criminal law to situations in which victims are crying out for justice. Whether it has been rape and sexual slavery in the Democratic Republic of the Congo, deportation and persecution in Myanmar, or allegations of genocide and crimes against humanity in Darfur, the ICC is tasked with bringing perpetrators to justice for the commission of atrocities that shock the conscience of humankind. To suggest that this activity presents an emergency situation that threatens US national security because of the ICC’s authorization of an investigation into crimes committed on the territory of Afghanistan during the past 20 years, is factually incorrect, as others have noted. But the premise of the Executive Order is not just factually wrong, it is inconsistent with fundamental American values.
This Executive Order is staggering in terms of its breath and potential chilling effect on Americans and U.S. entities. And it is likely only the tip of the iceberg. If the administration can deem the ICC a threat to national security, it could use the same tactic on every international institution with which it has a difference of view and any person or entity with whom it disagrees. Indeed, the administration and its surrogates have already attacked the WTO, the WHO, UNESCO, and the Human Rights Council. The administration has also withdrawn or threatened withdrawal from many important international agreements including the Paris Climate Change Agreement, the Iran Nuclear Deal, the Open Skies Treaty, NAFTA and the New START treaty with Russia. The President’s overbearing and otherwise illogical attack on the ICC only makes sense if it is understood as part of a larger strategy to attack an array of international institutions.
International lawyers and legal scholars sometimes treat the ICC as fundamentally different than other international institutions and regulatory regimes. It is not. It is an integral part of the global legal order, an order that promotes international peace and security for all, including Americans. Americans serve in all existing international institutions as judges, staff, interns, consultants, and visiting advisors. American businesses provide services to them and U.S. academics study them. If this EO is likely “not illegal,” as some have suggested, in future cases it seems that all Americans, American institutions and foreign nationals and entities with any connection to the United States can be prohibited from serving in, consulting with, offering services to, or in any other way “materially supporting” any international institution that an extreme isolationist president dictates.. Perhaps that is a real purpose behind the EO after all? Drive a harsh wedge between the US and the international legal order, by trying to bludgeon the body that stands for international criminal justice. Only time will tell of its true intent and effect.
Leila Nadya Sadat has served since December 2012 as the Special Adviser to the International Criminal Court Prosecutor on Crimes Against Humanity. She is the James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law. She is also the Director of the Crimes Against Humanity Initiative, a project to draft and have adopted a new global treaty on crimes against humanity. She is a Counsellor of the American Society of International Law and the current President of the International Law Association (American Branch). She received the Alexis de Tocqueville Distinguished Fulbright Chair in 2011 and an Honorary Doctorate from Northwestern University in 2017. From 2001-2003 she was a member of the United States Commission on International Religious Freedom and clerked for the Honorable Albert Tate on the U.S. Fifth Circuit Court of Appeals, as well as for the French Cour de Cassation and Conseil d’Etat. Sadat holds degrees from Rutgers University, Tulane University, Columbia University and the University of Paris – Sorbonne Law School. She has written this post solely in her personal capacity.
(This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)