Team Trump Failed to Bully ICC Into Dropping War Crimes Probe

Now that U.S. officials will be investigated for war crimes, the international court can expect escalating threats and retaliation by the White House, says Marjorie Cohn.

ICC prosecutor Fatou Bensouda. (ICC)

By Marjorie Cohn

After the prosecutor of the International Criminal Court (ICC) found a reasonable basis to believe that U.S. military and CIA leaders committed war crimes and crimes against humanity in Afghanistan, Team Trump threatened to ban ICC judges and prosecutors from the U.S. and warned it would impose economic sanctions on the Court if it launched an investigation.

Apparently succumbing to the U.S. threats, in April 2019, the ICC’s Pretrial Chamber refused to authorize the investigation that prosecutor Fatou Bensouda had requested.

But in an unprecedented decision, the Appeals Chamber unanimously overruled the Pretrial Chamber on March 5, 2020, and ordered a formal investigation of U.S., Afghan and Taliban officials for war crimes, including torture, committed in the “war on terror.”

Once again, the Trump administration is threatening the International Criminal Court. Following the Appeals Chamber’s decision, Secretary of State Mike Pompeo declared, “This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.” He added, “The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade, so-called court.”

Pompeo is likely referring to the American Service-Members’ Protection Act, enacted during the George W. Bush administration after it removed the U.S. signature from the ICC’s Rome Statute. Often called the “Hague Invasion Act,” it says that if a U.S. or allied national is detained by the ICC, the U.S. military can use armed force to extricate the individual. Although this provision has not yet been utilized, the potential for its use is frightening.

Secretary of State Mike Pompeo addressing media, March 5, 2020, the day he called the ICC a “renegade court.” (State Department, Freddie Everett)

Even if a country is not a party to the Rome Statute, its nationals can still be tried in the ICC if the crimes took place in the territory of a country that is a party. Thus, although the United States has not ratified the Rome Statute, the ICC still has jurisdiction over crimes committed by U.S. nationals in the territory of Afghanistan.

The impunity that U.S. officials have enjoyed for their international crimes may finally be coming to an end.

“Countries must fully cooperate with this investigation and not submit to any authoritarian tactics by the Trump administration to sabotage it,” Jamil Dakwar, director of the ACLU’s Human Rights Project, said. Responding to Pompeo’s threats, Dakwar noted, “No one except the world’s most brutal regimes win when the United States tries to impugn and sabotage international institutions established to hold human rights abusers accountable.”

Prosecutor Found U.S. Torture Policy

Bensouda found the alleged crimes by the CIA and U.S. military “were not the abuses of a few isolated individuals,” but were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees.” She noted there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies … which would support U.S. objectives in the conflict of Afghanistan.”

The Pretrial Chamber agreed with Bensouda that there were reasonable grounds to believe that, pursuant to a U.S. policy, members of the CIA had committed war crimes. They included torture and cruel treatment, and outrages upon personal dignity, as well as rape and other forms of sexual violence against those held in detention facilities in the territory of states that are party to the Rome Statute, including Afghanistan, Poland, Romania and Lithuania.

But the Pretrial Chamber denied Bensouda’s request for an investigation “in the interests of justice” due to the “extremely limited” prospects for a successful investigation and prosecution because of an anticipated lack of cooperation from U.S. and Afghan authorities.

War Crimes Investigation

Premises of ICC in The Hague, Netherlands. (Hypergio, CC BY-SA 4.0, Wikimedia Commons)

In its groundbreaking decision, the Appeals Chamber authorized the prosecutor to initiate an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.”

It is not necessary that the criminal acts or apprehension of victims took place in the territory of Afghanistan. For example, if a person suspected of being a member of or associated with al-Qaeda or the Taliban was allegedly tortured or apprehended outside of Afghanistan, the war crime of torture could still be investigated.

The Appeals Chamber noted the Pretrial Chamber’s agreement with the prosecutor that there was a reasonable factual basis and jurisdiction for an investigation. But the Appeals Chamber held that the Rome Statute did not authorize the Pretrial Chamber to make a finding that an investigation recommended by the prosecutor would not serve the interests of justice.

Moreover, the Appeals Chamber concluded that the Pretrial Chamber “did not properly assess the interests of justice” because its reasoning was “cursory” and “speculative,” and there was no indication that it “considered the gravity of the crimes and the interests of the victims.”

In addition, the Appeals Chamber ruled that the investigation will not be restricted to the factual information the prosecutor uncovered during her preliminary examination. The investigation won’t be limited to incidents the prosecutor identified or even to incidents “closely linked” to them. Affirming “the independence of the Prosecutor,” the Appeals Chamber gave her wide berth to conduct the investigation.

The ICC operates under the principle of “complementarity.” That means the Court will assume jurisdiction over a case only if the home country of the accused is unable or unwilling to hold him legally accountable.

If the U.S. government had prosecuted Bush administration officials for their war crimes during the “war on terror,” the ICC would not now take jurisdiction. But after Barack Obama ?said, “Generally speaking, I’m more interested in looking forward than I am in looking backwards,” his administration refused to prosecute those implicated in the torture and willful killings of detainees during the Bush administration.

Victims Hope for Accountability

Bensouda interviewed thousands of victims during her preliminary examination. About 100 of them joined her appeal of the Pretrial Chamber’s ruling. Victims and their lawyers hailed the Appeals Chamber’s decision and expressed hope that those responsible will finally be held accountable.

One appellant is Ahmed Rabbani, a Pakistani taxi driver who was taken to Afghanistan and described being tortured for 540 days by U.S. actors. He is represented by the human rights organization Reprieve“If the people who tortured me are investigated and prosecuted, I will be very happy. I would ask just one thing from them: an apology,” Rabbani said. “If they are willing to compensate me with $1 million for each year I have spent here, that will not be enough. I am still going through suffering and torture at present. But I would be happy with just three words: ‘We are sorry.’”

The ACLU represents Khaled El Masri, Suleiman Salim and Mohamed Ben Soud, who described the torture they suffered in Afghanistan between 2003 and 2008. “This decision vindicates the rule of law and gives hope to the thousands of victims seeking accountability when domestic courts and authorities have failed them,” the ACLU’s Dakwar said.

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights and ICC Victims Legal Representative, also welcomed the decision because it provides hope that justice is available to everyone. “For more than 15 years, like too many other victims of the U.S. torture program, Sharqawi Al-Hajj and Guled Duran have suffered physically and mentally in unlawful U.S. detention, while former senior U.S. officials have enjoyed impunity,” Gallagher said. “In authorizing this critical and much-delayed investigation into crimes in and related to Afghanistan, the Court made clear that political interference in judicial proceedings will not be tolerated.”?

But in light of the Appeals Chamber’s landmark decision holding that U.S. officials will be investigated for war crimes, we can expect escalating threats and retaliation against the ICC by the Trump administration.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.”

This article is from Truthout and reprinted with permission.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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37 comments for “Team Trump Failed to Bully ICC Into Dropping War Crimes Probe

  1. Vera Gottlieb
    March 15, 2020 at 12:17

    Same intimidating tactics as used by israel???

    • OlyaPola
      March 17, 2020 at 06:30

      “Same intimidating tactics as used by israel???

      In furtherance of the myth “We are all in this together” the notion of the homogeneity/unity/exceptionalism of social relations is encouraged – for example “nation states” branded as “Israel”, “The United States of America”, “The United Kingdom of Great Britain and Northern Ireland” etc, and “cooperative associations” such as NATO – to misrepresent the class nature of social relations and perception of strategies to transcend them.

      The transcendence of present social relations is a lateral process of transcendence of coercion by cooperation.

      Consequently perhaps your phrase would be made more illuminating if it read ..”Same intimidating tactics as used by classes whose continued existence is predicated on coercion. ”

      Some classes continued existence is predicated on cooperation as is becoming increasingly clear in respect of climate change including but not limited to contingent biosphere developments including diseases.

  2. March 15, 2020 at 07:50

    Need the ICC to order book my flight. So we can move forward with the case against the President of the United States Donald J. Trump.

  3. Simon Abbott
    March 14, 2020 at 13:19

    Let’s not delude ourselves, shall we? We can talk about Team Trump till the cows come home, but there’s not a snowball’s chance in Hell that any administration will or would do otherwise.. Except possibly one run by Bernie… what was I saying about snowballs and Hell?

  4. geeyp
    March 14, 2020 at 00:02

    Along with Judicial Watch having a judge call forth Hillary Rodham Clinton to give in-person testimony regarding her email setup (i.e., putting her on trial finally), and Lawyers for 911truth suing the feds for what actually happened and putting them on trial, perhaps things will finally get interesting on the road to JUSTICE. This includes the W Crime Family and the O Crime Family and is way overdue.

  5. Eric
    March 13, 2020 at 17:37

    “The impunity that U.S. officials have enjoyed for their international crimes may finally be coming to an end.”

    It took Bensouda more than five years to decide that Israel’s war crimes warranted investigation,
    so don’t expect a lot of actual action against the U.S.

  6. robert e williamson jr
    March 13, 2020 at 17:27

    You would think that Obama would at least remember who got him elected but I guess the money was too good.

    I have long considered the state of mother Israel a rogue state, based entirely on their interactions with other countries. North Korea may kill more of it’s own people but they are far less violent towards there neighbors and North Korea is considered a rogue state by many myself included.

    The U.S. obviously considered Iraq the same based on two episodes where the U.S. bombed the hell out of the county, that second episode is ongoing after 17 years.

    Based on my observations of U.S. past actions with respect to the ICC and U.S. actions around the world I can no longer characterize the behavior of the last 19 years by US government as being the conduct of a nation of law.

    Any entity is either legitimate or bogus. The current occupant of the White House has ensured by his behavior that he is as bogus at the three dollar bill. So is that of SCOTUS, the Bill Barr ran DOJ and the majority of members of the U.S. Congress and until they do something about the madman who now claims position of “supreme ruler” I no longer respect any portion of this amalgamated shit storm as legitimate.

    Enough is dogdamned enough of this juvenile BS. The is trying to ruin the country in my opinion and he needs to be stopped now.

    Maybe a good way for the Justice system to regain control of the country is to indict both the RNC and the DNC under the Ricco Statutes
    because the government of this country at this point in time is behaving like a Mafia with a flag. Very similar, way too similar to Israel.

    Thanks for all those at CN for fighting a good fight.

  7. Truth first
    March 13, 2020 at 16:49

    America knows that most countries support the ICC and that it is a legitimate court.
    If this case about American crimes gets off the ground America will exert all kinds of pressure on powerful people and implement all sorts of back door dirty deeds to throw the court off track.
    That is what a powerful country run by criminals always does when dropping bombs is not very practical.

  8. Michael McNulty
    March 13, 2020 at 14:24

    Who cares what Pompeo says? The Nazis wouldn’t have ratified Nuremberg either had it been in existence. They were still guilty of its charges, and looking at the Manning/Wikileaks release Collateral Murder so is the US on this one count alone. That’s why Assange is where he is, for exposing the US for doing what it says it never does, ever.

    And the half million dead Iraqis Madeleine Albright said was worth it was a genocide.

  9. Max
    March 13, 2020 at 12:03

    I hope they round up all the politicians and military personnel. The whole world will rejoice! I am just one of millions of Americans fed up with our government.

    • AnneR
      March 13, 2020 at 13:04

      Right on.

    • March 13, 2020 at 15:25

      i am with you 100% if not more!

  10. William H Warrick III MD
    March 13, 2020 at 11:09

    They should start at the Top from Bush, Cheyney, Wolfowitz, Rumsfeld et al and put all those convicted on an Inter Pol arrest list. John Yoo is another one.

  11. Les Stein
    March 13, 2020 at 11:03

    What about Iraq war crimes????

  12. Hide Behind
    March 13, 2020 at 10:14

    War crimes and crimes against humanity, where do those term stem from?
    And how can a court that is funded and situated within nations that own governments have not only precipitated but participated on and in the acts themselves, be impartial.
    It is but a tool, a politicly inspired body that seperates the.allowable acts outside ones borders or agreements of treaty, from what is or is not permitted at all within those treaty nations, or does it?
    Let’s look at just a couple examples, Kissinger and Assange/ Manning the latter in reality the same crime, Kissinger judged a war criminal roams freely throughout all nations immune to arrest, while the conditions of Assange and Manning would and have been defined by most 1st worlds people as a means of torture but not by their national leaderships, and neither has this so called court; Statements Vmailnare not judgements!
    When a Judicial system has to ask the criminals permission to prosecute them, who for and what for is the object of their mission?

  13. Colin Royle
    March 13, 2020 at 09:16

    Secretary of State Mike Pompeo declared, “This is a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.”
    Gee, for a moment I thought plump Mike was, for a change, telling the truth, until I realized he WASN’T referring to the government of the USA.

    • Jon Adams
      March 15, 2020 at 10:33

      Pompeo has an appropriate name for an American official during our “Late Roman Empire” times.

  14. Nathan Mulcahy
    March 13, 2020 at 08:16

    Is the time finally coming when the Outlaw US Empire will be held accountable for at least part of its long standing acts of lawlessness? I hope so. In this recent case, it is not only the Bush administration that deserves prosecution for war crimes. Senior Democratic leadership (including Nancy Pelosi) were complicit. Even Obama is culpable for refusing to prosecute war crimes. Will justice finally be served? I hope so.

    • jimmy
      March 13, 2020 at 13:32

      Obama is guilty of more than just “failing to prosecute “, he willingly participated in the Cheney, Kissinger,Bush crimes, as were Pelosi and McCain.

  15. Tony
    March 13, 2020 at 08:13

    I bet John Bolton is writing an opinion piece for the NYT as we speak!

    • Jon Adams
      March 15, 2020 at 10:34

      John Bolton might be looking for a place to hide. We may not be the only country that performs “extraordinary renditions” any more.

  16. OlyaPola
    March 13, 2020 at 07:49

    “But in light of the Appeals Chamber’s landmark decision holding that U.S. officials will be investigated for war crimes, we can expect escalating threats and retaliation against the ICC by the Trump administration.”

    Sharks don’t tend to attack other sharks unless others sharks “compromise” the environment.

    It is therefore not outside probability that in addition to the techniques outlined above some sharks could be “sacrificed for the greater good” predicated assays of mea culpaness partly based on “interpretations” of policy, monitoring, implementation and simulated respect/smiling.

    The “torture” policy since 2001 has been predicated on the belief that being seen to torture has a saluatory effect on the target audiences, secures a level of “loyalty” on the bases of complicity of those so engaged, and in implementation was in large part “sub-contracted”.

    As with all of Pandora’s boxes opportunities are contained within.

  17. michael
    March 13, 2020 at 06:40

    A risible article! The US was uninvited and illegally in Syria and Libya, supported Saudi genocide in Yemen in exchange for lessening criticism of our Iran nuclear pact, and god only knows how many countries we have invaded and supported coups just in the last 20 years. At best some low level American soldiers will be convicted in absentia and that will be the end of it.

    • Sam F
      March 13, 2020 at 11:53

      That may happen. But the article notes the very significant courage of the ICC in the face of the US law authorizing military force against it. If that is merely a pre-arranged process of excusing and pretending to apologize, then it will not be significant. But where the investigation has revealed a US policy of torture, it focuses and expresses international disapproval. Torture is a tricky subject in extreme cases, but few deny that the slope downward from its authorization is slippery. And most recognize that it reflects a government out of control, unable to provide moral leadership.

    • Truth first
      March 13, 2020 at 16:32

      Countries bombed by the USA. Thanks William Blum
      ?Korea and China 1950-53 (Korean War)
      ?Guatemala 1954
      ?Indonesia 1958
      ?Cuba 1959-1961
      ?Guatemala 1960
      ?Congo 1964
      ?Laos 1964-73
      ?Vietnam 1961-73
      ?Cambodia 1969-70
      ?Guatemala 1967-69
      ?Grenada 1983
      ?Lebanon 1983, 1984 (both Lebanese and Syrian targets)
      ?Libya 1986
      ?El Salvador 1980s
      ?Nicaragua 1980s
      ?Iran 1987
      ?Panama 1989
      ?Iraq 1991 (Persian Gulf War)
      ?Kuwait 1991
      ?Somalia 1993
      ?Bosnia 1994, 1995
      ?Sudan 1998
      ?Afghanistan 1998
      ?Yugoslavia 1999
      ?Yemen 2002
      ?Iraq 1991-2003 (US/UK on regular basis)
      ?Iraq 2003-2015
      ?Afghanistan 2001-2015
      ?Pakistan 2007-2015
      ?Somalia 2007-8, 2011
      ?Yemen 2009, 2011
      ?Libya 2011, 2015
      ?Syria 2014-2015

    • TS
      March 14, 2020 at 06:04

      > At best some low level American soldiers

      No, it is not those whom the prosecutor has in her sights.

    • March 14, 2020 at 11:50

      US … supported Saudi genocide in Yemen in exchange for lessening criticism of our Iran nuclear pact,

      That may be wrong. I was really puzzled why Obama made this pact to begin with, because he continued doing various [expletive deleted] to Iran. The result that benefited US was that Gulfies became frantic and redoubled their purchases of overpriced weapons, and the war in Yemen increased those purchases even more. Mind you, the benefits accrue to most influential circles in US and allied countries who supply weapons to the Gulfies. And who cares about their criticism, if any?

  18. Tim
    March 13, 2020 at 00:37

    These war crimes were gradually uncovered, revealed, and now the war criminals can be fully investigated and hopefully prosecuted. Let the truth be brought forth in that court of law!

  19. March 12, 2020 at 21:52

    Now that U.S. officials will be investigated for war crimes, the international court can expect escalating threats and retaliation by the White House, says Marjorie Cohn.

    Ah yes. The US applying the Rules Based International Order = Washington makes the rules and orders us to follow them.

  20. Jeff Harrison
    March 12, 2020 at 18:32

    Best o’ Luck. The US is the real rogue nation in the world today who needs to be reined in. The US has been conducting lawfare on the world using US “law”. It’s about time that the world uses International law on the US for a change.

    • OlyaPola
      March 13, 2020 at 08:06

      ” The US has been conducting lawfare on the world using US “law”.

      The cloak of the “rule of law” to cover the rule of man is a useful ideological construct facilitating the self-designated “The United States of America”; another useful notion being sole/prime agency.

      “Best o’ Luck”
      Perhaps you perceive a purpose and low probability of its achievement?

      ” It’s about time that the world uses International law on the US for a change.”

      Some conflate attempt/achievement predicated upon a perceived purpose thereby limiting opportunities by their naivete,; and when outcomes and expectations differ assign the variance to ultimate back stops such as luck and/or the will of gods.

      The process/processes will likely afford opportunities to achieve purposes of which you may be unaware.

    • Pamella Corvelli
      March 13, 2020 at 23:52


    • James Flint
      March 15, 2020 at 01:05

      “The appearance of law must be upheld, especially when it’s being broken,” quote attributed to Boss Tweed of Tammany Hall in the movie “Gangs of New York.”

  21. Skip Scott
    March 12, 2020 at 16:52

    Not only did Obama refuse to prosecute the war criminals of the Bush administration, he became the next “war criminal in Chief” in short order. It has been a requirement for every new president during my lifetime. It would be wonderful if Tulsi was elected and chose to ship them all off to the Hague, or select an Attorney General willing to uphold the Constitution and prosecute them right here. Until we begin to respect the rule of law, raw power will be the only consideration in our foreign policy.

    • vinnieoh
      March 13, 2020 at 08:37

      ” or select an Attorney General willing to uphold the Constitution and prosecute them right here.”

      I’m reminded of Diogenes carrying a lamp through his environs, searching for an honest man. And man has changed very little it seems.

    • March 13, 2020 at 10:06

      @ “Not only did Obama refuse to prosecute the war criminals of the Bush administration, he became the next “war criminal in Chief” in short order.”

      As though 1600 Pennsylvania acquiring a new tenant might render Obama immune from liability for continuing anything GW Bush began.

    • rosemerry
      March 13, 2020 at 14:04

      Obama’s pathetic use of the term “looking ahead, not behind us” was the most ridiculous suggestion for any crime investigation- ie after it is done, it is forgotten.

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