The Whitney R. Harris World Law Institute is dismayed by the threats leveled against two members of the International Criminal Court’s professional staff–and their families – by Secretary of State Mike Pompeo in his Press Briefing of March 17, 2020.
In his remarks, Secretary Pompeo named two ICC staff members and threatened to interfere with their right to travel to the United States and any “activity that’s inconsistent with making sure we protect Americans,” presumably referring to their professional work. The Secretary also threatened “their family members.” It is shocking to hear the United States Secretary of State personally threaten the staff and family members of an international organization because he disagrees with some action of that institution. It is also self-defeating. Indeed, threatening the ICC by attacking its staff hurts the United States much more than any ICC investigation ever could.
The Secretary’s real target, of course, is the recent decision by the Court’s Appeals Chamber authorizing the ICC Prosecutor to commence an investigation into crimes allegedly committed in Afghanistan by the Taliban and Afghan National Forces. Also included in the request to investigate are allegations of torture, cruel treatment, outrages upon personal dignity, rape and/or sexual violence committed on the territory of Afghanistan and other ICC States Parties that may have been committed by members of the U.S. armed forces and the CIA from 2003-04. There is nothing new about the allegations–they were well-documented by the United States Senate in its 2014 Report of the Senate Select Committee on Intelligence’s Study of the Central Intelligence Agency’s Detention and Interrogation Program.
Secretary Pompeo’s overreaction to the Afghan investigation ignores important policy considerations. First, the Court’s job is to prosecute individuals accused of atrocity crimes in cases falling within jurisdiction. 123 countries have now joined the Court, including Afghanistan. So the Court has jurisdiction over crimes committed there. At the same time, under the Court’s Statute, the United States can protect itself if it so desires. It can oust the Court of jurisdiction by investigating the allegations itself, and even were the ICC investigation to proceed, it has no obligation to cooperate with the Court because it has not joined it. Thus the likelihood of any actual harm to U.S. persons is completely speculative.
Second, as several former U.S. government officials recently observed, Pompeo’s statement “undermine[s] the confidence of those around the world who look to the United States for leadership and inspiration to protect the victims of the world’s worst atrocities.” The United States supported the referral of the Sudanese situation to the ICC, which ultimately bore fruit as Sudanese President Omar Al Bashir was toppled from power, indicted by the ICC, and tried in his own country for corruption. Sudan has now stated he will be turned over to the Court where he is wanted on charges of genocide. Likewise, Afghanistan has suffered from decades of war and the Taliban, in particular, are alleged to have committed not only war crimes but crimes against humanity. Thousands of Afghan victims are waiting for justice, and the ICC investigation is an important step in the right direction for them.
Finally, the Court promotes key U.S. values, including justice and a commitment to the rule of law. It is the direct legacy of the Nuremberg Tribunal established after World War II, in which Mr. Whitney R. Harris himself participated. In attacking the Court and its staff the United States undermines its own legacy and dishonors the memories of those who died during World War II fighting to preserve and protect American values.
In a world that has become increasingly unstable, in which authoritarianism and ethnic and racial hatred is once again on the rise, the International Criminal Court is needed more than ever. We commend the Court’s measured response to the U.S. threats and urge the U.S. government to abandon its policy of threatening the Court’s personnel and their families.