Trump declares 'national emergency' to block ICC war crimes investigation

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President Donald Trump has invoked emergency powers to prevent the ICC from investigating alleged Afghan war crimes (Image by Dan Jensen)

President Trump declared the International Criminal Court investigation into war crimes in Afghanistan a “national emergency”. Claire McMullen reports from Washington.

PRESIDENT DONALD TRUMP said on the day he declared COVID-19 a national emergency:

“I have the right to do a lot of things that people don’t even know about."

This is true. When President Trump declares a national emergency, he brings into play an arsenal of U.S. laws that bestow sweeping access to extraordinary powers. In the past, a degree of presidential self-restraint may have served as a discretionary limit on when and how these powers have been wielded. But today, the Trump Administration’s rule by executive order lays bare the dangerous and destructive possibility of unchecked presidential power.

Trump used emergency declarations to sideline Congress when it opposed his plan to build a US$6.6 billion (AU$9.5 billion) wall at the U.S.-Mexico southern border to “protect” the U.S. from its impoverished neighbours.

We recently saw President Trump deploy emergency powers to order in the U.S. military for a photo-op in Washington DC to flex his political muscle in the face of demonstrators outside the White House gates and across the United States demanding justice for George Floyd.

Now, Trump is using emergency powers in an effort to wall off the U.S. from international accountability.

This past week, he ruled that the International Criminal Court’s investigation into allegations of war crimes committed in Afghanistan by U.S. personnel and its allies:

‘...constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.’

That’s right, he declared a “national emergency”. In a move unprecedented by a Western democracy, the president invoked authority granted by the International Emergency Economic Powers Act (IEEPA) to slap sanctions on ICC staff working on the investigation.

Previous U.S. presidents have commonly used the array of economic powers under IEEPA to impose sanctions on foreign government officials committing human rights violations. The Trump Administration has instead dealt another blow to the international rule of law by pursuing the international lawyers, human rights experts and investigators seeking justice for victims of war crimes that include torture and rape in Afghanistan.

It must be emphasised that the ICC was established almost two decades ago by the Rome Statute as a crucial global safeguard against impunity for the gravest international crimes.

Illegitimate investigation or illegitimate national emergency?

The Trump Administration claims the ICC’s investigation of U.S. citizens is illegitimate because the U.S. has not signed on to the Rome Statute – the treaty establishing the Court – and has long maintained an objection to the Court exercising jurisdiction over the citizens of non-party states. Trump’s argument is largely misplaced because the Court is exercising jurisdiction over war crimes and crimes against humanity committed since 2003 in the territory of Afghanistan, a state that is a party to the ICC.

U.S. refusal to consent to the ICC’s jurisdiction does not automatically shield personnel from prosecution before the Court. On the contrary, the ICC has determined unequivocally that it has jurisdiction to investigate U.S. personnel in connection to war crimes in Afghanistan.

Akila Radhakrishnan, president of the Global Justice Centre, said:

“...the U.S. cannot escape accountability just because it commits crimes in other countries.”

The ICC, as a court of last resort, will only try individuals accused of international crimes when national authorities fail to take necessary action. As a result, it is unlikely that Australian troops will be brought before the ICC because Australia has a long-running national investigation underway that could lead to prosecutions. As ABC News recently reported, former soldier and now senior lawyer, David McLure SC, has been appointed by the Commonwealth Director of Public Prosecutions to prosecute alleged cases of Australian war crimes during the Afghanistan war.

In the United States, President Trump has used his executive powers to pardon two U.S. soldiers accused of war crimes in Afghanistan and Iraq. U.S. investigations and congressional inquiries have produced evidence of war crimes by U.S. military and CIA officers with little official reprimand. This is a pattern similar to the longstanding police impunity currently under the national spotlight. The U.S. Government has little appetite to unpack the allegations, weigh the evidence publicly and then hold senior military and intelligence officials accountable for possible war crimes.

Human Rights Watch also expressed concern that the U.S. is failing to prevent the recurrence of such crimes in Afghanistan today, reinforcing the necessity and legitimacy of an ICC investigation.

Trump targets ICC staff

The Trump Administration’s latest attack on the international institution has come after the ICC Appeals Chamber decided unanimously on 5 March to authorise the investigation.

Chief Prosecutor Fatou Bensouda has indicated that, based on available information, the ICC believes that:

‘Members of U.S. armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014.’

Bensouda is no stranger to U.S. hostility. Her entry visa was revoked by Secretary of State Mike Pompeo last year after she indicated her intention to seek authorisation for the investigation.

Trump’s new executive order would freeze the assets of ICC staff and any foreign person deemed to be directly assisting the ICC’s investigation into U.S. citizens. It bars ICC staff and their family members from entering the U.S. and threatens Americans with criminal penalties if they engage in financial transactions with ICC staff or others investigating the United States.

At the State Department on Thursday, the Trump Administration’s frontline defenders lined up to admonish the corrupt International Criminal Court, its illegitimate investigation and ideological crusade against American service members”.

Mike Pompeo declared:

“We cannot and we will not stand by as our people are threatened by a kangaroo court.


It gives us no joy to punish them, but we cannot allow ICC officials and their families to come to the United States to shop, travel, and otherwise enjoy American freedoms as these same officials seek to prosecute the defenders of those very freedoms.”

Since Pompeo served as CIA director (Jan 2017-April 2018) and in his role as secretary of state, Just Security suggests that he could be subject to investigation by the ICC in connection to alleged CIA participation in war crimes and crimes against humanity in Afghanistan.

Pompeo’s statement also drips of hypocrisy. Only a day before, he praised a West African nation for “courageously” bringing a case before the United Nations judicial body to pursue accountability for crimes committed against the Rohingya.

U.S. Defense Secretary Mark Esper told Americans they could be:

“...assured that the men and women of the United States Armed Forces will never appear before the ICC — nor will they ever be subjected to the judgments of unaccountable international bodies.”

Attorney General William Barr pitched in to stir the far-Right conspiracy pot, accusing Russia of “manipulating the ICC in pursuit of its own agenda”. Barr also heavily implied that ICC Chief Prosecutor Bensouda’s office was corrupt.

Let’s be clear, the ICC is only interested in investigating and potentially prosecuting war criminals who the U.S. has failed to hold accountable.

The unwillingness of the U.S. to be accountable to the standards it so readily applies to other states not only damages its credibility but also poses a serious threat to the international legal order.

Bold leadership or rogue state?

Israeli Prime Minister Benjamin Netanyahu was quick to praise President Trump for his bold leadership.

He described the ICC as a:

“...politicised court… obsessed with conducting witch hunts against Israel, the United States and other democracies that respect human rights.”

As Vox reports, Netanyahu is justifiably concerned about the ICC, with some reports indicating he could face prosecution if the ICC case proceeds.

The European Union, on the other hand, is pushing back against Trump’s invocation of these emergency powers to shield the U.S. from investigation. EU Foreign Policy Chief Josep Borrell Fontelles viewed the Trump order as a “matter of serious concern” and said that EU members were “steadfast supporters” of the tribunal.

Trump attacks the International Rule of Law

In a statement, the ICC condemned the Trump Administration’s actions as ‘the latest in a series of unprecedented attacks on the ICC’ that constitute an ‘unacceptable attempt to interfere with the rule of law and the Court's judicial proceedings’.

This is the first time the ICC has ever investigated U.S. forces and would be the first time U.S. troops were asked to front up as defendants in a war crimes prosecution before the ICC.

The Brookings Institute is not alone in reporting that the Trump Administration’s aggressive use of its economic might is extremely unlikely to deter the ICC investigation and is far more likely to negatively affect U.S. interests in the long term.  

If the Trump Administration had a grasp of the high stakes, it would support the ICC investigation and any subsequent prosecution in line with its commitment to the standards and institutions the U.S. has spent the last half-century building.  

Employing sanctions now only damages the legitimate use by the U.S. of this crucial foreign policy tool in the future. 

Elizabeth Goitein at the Brennan Center for Justice tweeted on Thursday that:

‘The president’s abuse of emergency powers has itself become an emergency, and if Congress does not act soon, the situation will only get worse.’

In Trump’s America, it will be near impossible for Congress to terminate the president’s latest order. A deeply divided U.S. Congress would have to pass a law that is then signed by President Trump or achieve a super-majority to override Trump’s veto. U.S. Congress has never attempted to terminate an emergency order under IEEPA

To this Australian observer, the solution appears rather obvious. Why go to the trouble of concocting a national emergency, bullying an independent international institution and threatening the future of the international legal order when you could simply prosecute the alleged U.S. war criminals using your own criminal justice system and legal standards? The U.S. should follow Australia’s example and investigate alleged war crimes by its forces deployed in Afghanistan.

On the same day as President Trump slapped sanctions on the ICC, Assistant Attorney General Benczkowski said in relation to their indictment of a foreign national for torture:

“...the United States will not be a safe haven for perpetrators of torture...”

The United States should also apply this standard to its citizens. 

Claire McMullen is a lawyer and writer who recently completed a Masters in International Legal Studies at Georgetown University Law School in Washington DC.

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