There
is limited amount of information about future Trump administration policy
towards the ICC. However, there are indicators of future ICC-Trump relations: a
recent draft executive order, Trump policy on international organizations,
previous consideration of notorious ICC opponent John Bolton for top foreign
policy positions, the State Department website, and Breitbart attitudes towards
the ICC. We need to analyze these because future US relations with the ICC will
impact the future of the ICC, although not as much as some fear.
Some
of the government's recent actions and policies have promoted conversations
about the risk of the US ceasing its cooperation and engagement with the ICC. A
recent article by the Center for American Progress remarked, “a Trump
presidency means that U.S. commitment to international criminal justice—and to
human rights in general—may soon be a thing of the past.” This speculation may be correct, but it can
only be just that.
The
New York Times reported that a provision in Trump’s draft executive order
titled, “Auditing
and Reducing U.S. Funding of International Organizations,” calls for a
committee to consider cutting funds for the ICC. This provision would not mark
a change in US practice because the US can not fund the ICC. In fact, the
American Servicemembers Protection Act (ASPA) already bans US funding for the
Court. However, its existence could hint at the administration’s awareness of
and attitudes towards the ICC. Some aspects of the adversarial nature of the
administration’s first action related to the Court might be a source of concern
for future ICC-US relations. However, that is not yet clear. The provision may
only imply that the US is not likely to begin allocating funds for the Court,
or the administration may have wanted to take a symbolic stance against
increased cooperation with the ICC. The provision could mean that the
administration does not fully understand existing US law on the Court. It may
simply be the result of an administration member seeing the ICC on a list of
multi-lateral organizations. At the very least, the draft provision’s existence
means that a high-level member of the Donald Trump administration is aware of
the ICC.
Additionally,
the repeated consideration of John Bolton for top foreign policy positions has
been a source of speculation on the Trump administration’s future policies
related to the Court. During the Bush administration, Bolton spearheaded the
strategy of active opposition to the Court. Under Bolton's influence, Bush
deactivated the Rome Statute and passed the ASPA. In addition to banning the
allocation of US funds to the ICC, the ASPA authorized the use of "all
means necessary and appropriate" if the ICC takes an American citizen into
custody. Given that the administration seriously entertained the idea of
Bolton, such a firm opponent to the ICC, as the Secretary of State or Deputy
Secretary of State, it may not be likely that the Trump administration may well
not maintain their predecessors' policy of positive engagement.
Another
cause of concern has been Trump’s criticism of US engagement in international
organizations, notably the UN. Trump has shown hostility towards institutions
like the UN, and the administration has sought to leave, or cut funds, to
international organizations even where the US holds key leadership positions.
Therefore, the Trump administration may not only end the Obama relationship
with the ICC, but also could become hostile towards the Court.
The
State Department website may be another hint about the Trump administration’s
attitudes. The site states that the “current
U.S. policy” is reflected through the May 2010 National Security Strategy:
“From Nuremberg to Yugoslavia to
Liberia, the United States has seen that the end of impunity and the promotion
of justice are not just moral imperatives; they are stabilizing forces in
international affairs. The United States is thus working to strengthen national
justice systems and is maintaining our support for ad hoc international
tribunals and hybrid courts. Those who intentionally target innocent civilians
must be held accountable, and we will continue to support institutions and
prosecutions that advance this important interest. Although the United States
is not at present a party to the Rome Statute of the International Criminal
Court, and will always protect U.S. personnel, we are engaging with State
Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s
prosecution of those cases that advance U.S. interests and values, consistent
with the requirements of U.S. law.”
The
fact that, after the administration has made changes to the site—including the
removal of pages and documents related to refugees and climate change, this
page remains is notable. It may merely reflect an overwhelmed and unorganized
State Department. Perhaps the Trump administration has not paid any attention
to it. Given that the National Security Strategy is state department policy
until it is replaced, it could only mean that issuing a new policy on the ICC
is not, currently, a top goal of the Trump administration. Ideally, the page's
presence is an indicator that the Trump administration will not differ
significantly from the Obama administration in its policy on the ICC.
We know that Steve Bannon, Trump’s chief strategist and former editor
of Breitbart, has turned some of Breitbart’s views into Trump administration
policy. Therefore, Breitbart is relevant in predicting the Trump administration’s
future attitudes towards the ICC. Inaccuracies about the Court are common on the site. An article from
January 25, 2015, stated the the ICC was located in Switzerland. This could
imply an attitude of ignorance towards the Court. In fact, under Bannon, Breitbart
was not as aggressive towards the ICC as one might suspect. Breitbart articles
have not been particularly supportive of the ICC, but they, also, did not
engage in attacks against the ICC based on sovereignty or US vulnerability. It
did not discuss US ratification of the Rome Statute. In an article about
Charles Taylor’s conviction, Breitbart acknowledged that the victims were happy
with the conviction. Nonetheless, the radical right-wing site has also written
off international criminal justice as useless for procuring peace. An article
on South African withdrawal from the Court stated, “no one could seriously believe that Adolf
Hitler would have cancelled the Holocaust out of fear of being prosecuted by
some court.” Breitbart has also questioned ICC jurisdiction over Israelis in
the Palestine situation, and it referred to potential future charges in the ICC
against Netanyahu as “trumped-up charges.” Therefore, the Trump administration
might argue the the ICC does not have jurisdiction over the Palestine
situation. Elsewhere, Breitbart does not strongly condemn the Court’s
existence, nor does it analyze US engagement with the Court. This may translate
to a Trump administration that ignores the Court, except when the Court impacts
Israel.
Under
the Obama Administration, the US assisted the Court with investigations and
participated as an observer at Assembly of States Parties (ASP) sessions. US
Special Forces have also assisted with efforts to capture high-level LRA
officials with ICC arrest warrants. Admittedly, the loss of this support would
be a setback for the ICC. ICC prosecutor Fatou Bensouda remarked that
withdrawal of positive US engagement with the Court would hamper the ICC.
However, it will not stunt the ICC if the US ceases to cooperate. Many
supporters of international justice misunderstand the Court and the political
situation surrounding it. Consequently, they overstate the effect that a lack
of US support would have on the ICC. It would not damage the Court.
Breitbart
assumes that the Court is standing on shaky ground, citing lack of support,
but, the ICC enjoys widespread support. Since Gambia, South Africa and Burundi
announced their intention to withdraw, new political developments in Gambia and
South Africa have occurred and it is possible that neither Gambia nor South
Africa will follow through with withdrawal. Moreover, the majority of African
state parties gave their support to the Court at last fall's ASP session. A
threat of massive ICC withdrawal is not as potent as many believe.
If
the situations of Afghanistan and Palestine move beyond preliminary examination
at the ICC, Trump may respond with hostility. The reaction might be
particularly violent if the Court issued arrest warrants for US nationals for
crimes committed in Afghanistan. Currently, the Afghanistan situation is in
preliminary examination at the ICC. The Court has jurisdiction to prosecute
American nationals who committed Rome Statute crimes in Afghanistan, because
the Court has jurisdiction over all crimes committed on the territory of a
state party. Afghanistan is a state
party to the Rome Statute, and the Court has had jurisdiction over Rome Statute
crimes in Afghanistan since May 1, 2003. If the Court finds evidence of such
crimes, then the Court should follow through with its responsibility to fight
impunity regardless of political pressures. The Trump administration might
respond violently to an investigation or arrest warrant for an American, but it
might be incorrect to assume this would inevitably harm the Court. An
investigation or an arrest warrant would likely produce increased support from
the international community and civil society, and, a defensive reaction from
the international community would likely emerge in response to a violent
response from the Trump administration.
However,
there is hope for future US engagement with the ICC. The Court enjoys
widespread support from the American people; 72% of Americans support the ICC
according to a poll by the Chicago Council on Global Affairs. Furthermore,
criticism of the ICC has been fueled by misunderstandings. The more that is
understood about the Court, the more support that Americans will have for it.
The
Trump administration has not released any official policy statements on the
ICC; so, it could interact with the Court in several different ways. The
administration might be a reason for concern about the future of the US-ICC
relationship. It could respond with hostility to investigations into the
situations of Afghanistan and Palestine. Or, it might maintain a neutral or
positive attitude towards the Court. The US does find the atrocities that the
Court tries to be appalling, and the Court is an effective institution to deal
with some of them. However, the administration may nonetheless even ignore the
Court. It might not accept any of its predecessor’s attitudes towards the ICC.
Even
if the US withdraws from its previous policy of positive engagement, the Court
will not fall apart. However, the broad support of 124 countries will ensure
that the Court will continue to work well. Therefore, the ICC will exist and
work to end impunity far
into the future.
Written by: Taylor Ackerman
No comments:
Post a Comment