President Donald Trump recently authorized the use of sanctions against employees of the International Criminal Court (ICC) involved in an investigation into whether American forces committed war crimes in Afghanistan. This is part of a robust strategy to push back against the illegitimate claims of jurisdiction by the ICC as advocated by Heritage Foundation experts.
In 2017, a prosecutor for the ICC announced a formal request to open an investigation into war crimes and crimes against humanity allegedly committed by U.S. troops in Afghanistan. The ICC could issue warrants seeking the arrest of current and former U.S. officials, government employees, and military personnel—despite the fact that the U.S. has already investigated the alleged crimes, and rejects the ICC’s claims of jurisdiction over U.S. persons and actions.
Brett Schaefer, the Jay Kingham fellow in international regulatory affairs for Heritage’s Margaret Thatcher Center for Freedom, has written extensively on the problems with the ICC’s case against America.
In a March 2020 report, “How the U.S. Should Respond to the ICC’s Decision to Investigate Americans,” authored with Heritage colleague Charles Stimson, they wrote: “The decision of the ICC to proceed with an investigation that could involve Americans underscores the wisdom of the U.S. decision to forego ratification of the Rome Statute and enact laws circumscribing U.S. engagement with the ICC. However, the recent decision to proceed with an investigation that could target Americans requires additional protective measures.”
Schaefer made several recommendations in that same report that the Trump administration has implemented in its recent decision to sanction members of the ICC involved in the Afghanistan case, including denying visas to ICC officials, reiterating that the U.S. will not ratify the Rome Statute and that it rejects ICC claims of jurisdiction over U.S. persons, and refusing to cooperate with the ICC investigation.
“This move signals the Trump administration’s willingness to push back against the ICC’s infringement of U.S. sovereignty,” says Schaefer.
“Secretary of State Mike Pompeo has highlighted the political bias of the court. Secretary of Defense Mark Esper highlighted the proven record of the U.S. legal system in investigating and holding accountable those who violate U.S. laws. National Security Advisor Robert O’Brien emphasized that the U.S. has never ratified the Rome Statute that created the court and has consistently rejected its jurisdiction,” he adds. “The United States is under no obligation to cooperate with the ICC.”
James Carafano, vice president of the Davis Institute for National Security and Foreign Policy and E.W. Richardson fellow, says this type of work shows Heritage’s impact.
“Brett stayed on top of this issue and the Trump administration made exactly the right call,” Carafano says. “America must not be held accountable to a foreign court that wants to paint our brave men and women in uniform as monsters.”