August 20, 2020 51
on which the US has veto power, can
grant jurisdiction anywhere.) No one,
including the US, denies that nations
can prosecute crimes committed on
their territory: in the lingo of interna-
tional law, states have “territorial juris-
diction.” It is the most basic attribute of
state sovereignty. The ICC operates on
a grant of its members’ own territorial
jurisdiction to do what they have every
legal right to do: prosecute crimes on
their territory, including crimes com-
mitted by foreigners.
Afghanistan belongs to the ICC,
which is why the court can investigate
crimes committed on Afghan territory.
The same is true for European coun-
tries that hosted the CIA’s secret black
sites: Lithuania, Poland, and Romania
are all ICC members. The problem for
the United States is not that a court it
doesn’t recognize is imposing obliga-
tions it never agreed to. The problem
is that US personnel “tortured some
folks” in ICC member countries.
US outrage would be wholly justi-
fied if the ICC were what Mike Pompeo
says it is: a kangaroo court with no fair
process. It is nothing of the sort. If any-
thing, the ICC is legalistic to a fault,
and when the prosecutor presents a
weak case, the judges do not hesitate
to acquit defendants. Furthermore,
the US is hardly in a position to talk
about kangaroo courts. One need look
no further than Guantánamo, with its
unbroken streak of scandals going back
to 2007, when the head prosecutor, an
Air Force colonel, resigned in protest
because he was getting pressure from
the White House for quick convictions.
Ironically, international tribunals
began as an American idea seventy-
five years ago, with the Nuremberg
trial of major Nazi war criminals. The
other Allies were skeptical. Churchill
preferred summary executions, and
Stalin wanted show trials; at the Teh-
ran Conference he proposed shooting
50,000 German officers. The US in-
sisted on an international tribunal and
brought its allies around; US lawyers
were leaders in writing the Nuremberg
Charter, the template for all future in-
ternational criminal law. It codified the
core crimes of aggression, war crimes,
and crimes against humanity. (Geno-
cide, a legal innovation at the time, was
added later.) The charter stripped away
defenses exempting heads of state,
along with subordinates who were “just
following orders,” from criminal liabil-
ity. And it made clear that Nazi crimes
could be prosecuted even though they
were legal under the laws of the Third
Reich. That was a revolutionary devel-
opment, because it declared that sover-
eignty is no shield against international
criminal law—the same proposition
the US now rejects.
US prosecutor Robert Jackson de-
livered a stirring opening statement at
Nuremberg:
That four great nations, flushed
with victory and stung with injury,
stay the hand of vengeance and
voluntarily submit their captive
enemies to the judgment of the law
is one of the most significant trib-
utes that Power ever has paid to
Reason.Jackson warned that history would
judge the Allies on the tribunal’s fair-
ness: “To pass these defendants a poi-
soned chalice is to put it to our lips as
well.” Fortunately, Nuremberg had no
preordained outcome. Three high-
level defendants were acquitted of all
charges, others of some charges. Tel-
ford Taylor, one of the US prosecutors,
recalled years later that the prosecu-
tion team was terrified that acquittals
would delegitimize the tribunal, but
the opposite was true. They were the
surest sign that it was not a show trial.
Even so, the tribunal, like the subse-
quent Tokyo Tribunal for Japanese war
criminals, had one glaring defect: it
prosecuted only Axis crimes, not those
committed by the Allies. US Admiral
Chester Nimitz freely admitted to sink-
ing merchant ships, one of the charges
against his German counterpart Admi-
ral Karl Doenitz.^3 Jackson complained
to President Truman that the Allies
“have done or are doing some of the
very things we are prosecuting Ger-
mans for”—plunder, prisoner abuse,
aggression. Soviet troops massacred
thousands of Polish officers in the
Katyn Forest. And Truman dropped
atomic bombs (although under the law
of war at that time bombing cities was
not clearly criminal). Once the war was
over, the Allies were not about to put
their own leaders on trial.
Thus began a pattern of US zigzag-
ging on international criminal jus-
tice—sometimes its ardent champion,
sometimes its enemy, but unwaveringly
opposed to applying it to Americans.
The US led efforts to create the Inter-
national Criminal Tribunal for the For-
mer Yugoslavia (ICTY) in 1993—the
first war crimes court since Nuremberg
and Tokyo. But US officials were flab-
bergasted when the ICTY prosecutor
flew to Washington and warned them
that if NATO committed war crimes in
the course of its intervention in Kosovo,
she would prosecute them.
The US supported and helped staff
the Rwanda Tribunal that was set up in- David Crane, the founding pros-
ecutor of the Special Court for Sierra
Leone, established in 2002, was a for-
mer US intelligence official, and most
of his original staff were Americans.
But the Bush administration turned
on Crane when he went after Liberian
president Charles Taylor, a major par-
ticipant in the West African “blood
diamonds” wars of the early 1990s.
Taylor, it turned out, had once been a
US intelligence asset, and his former
case manager sat on Bush’s National
Security Council. The resourceful
Crane marshaled congressional sup-
port and outmaneuvered White House
resistance to flushing Taylor out of his
Nigerian exile. He was tried by the
Special Court and sentenced in 2012 to
fifty years.
Creating individual post- conflict tri-
bunals is cumbersome and expensive,
and by the mid- 1990s a permanent
international criminal court seemed
like an attractive alternative. At first
the US supported the idea and was
actively involved in the 1998 Rome
negotiations. But the Pentagon feared
that the ICC would be used politically
against US forces all over the world,and Washington turned against it. Bill
Clinton signed the Rome Statute, but
he refused to submit it to the Senate for
ratification.
For the George W. Bush adminis-
tration, it was hate at first sight. John
Bolton raged against the ICC in sul-
furous terms, and Bush promptly un-
signed the Rome Statute. That was a
significant move. Signing a treaty ob-
ligates a country not to work to defeat
its goals. By unsigning, Bush freed his
administration to undermine the ICC.
Congress passed a bill authorizing the
president to use military force to free
any American in ICC custody. It was
nicknamed the “Hague Invasion Act”
and drew a lot of international eye-
rolling—but it is still in force. Unlike
Trump and Pompeo, the Bush admin-
istration never launched a frontal as-
sault on the ICC. Instead, diplomats
pressured ICC members to sign agree-
ments—of doubtful legality—that they
would never turn US nationals over to
The Hague. Nearly a hundred coun-
tries signed.
Besides the ICC, another legal flash
point was what lawyers call “univer-
sal jurisdiction”: the power of states
to prosecute atrocity crimes com-
mitted anywhere. For a brief period
two decades ago, Belgium opened its
courts to universal jurisdiction com-
plaints against a motley assortment of
world leaders, including Fidel Castro,
Saddam Hussein, and both Yasser Ara-
fat and Ariel Sharon—but that effort
collapsed when a complaint against
Americans for alleged war crimes in
the first Gulf War drew a harsh US
response. Defense Secretary Donald
Rumsfeld threatened to move NATO
headquarters out of Brussels, and Bel-
gium hastily rewrote its law. Yet the US
later supported a special tribunal in
Senegal that convicted Chad’s ousted
dictator Hissène Habré of rape and
mass murder, using universal juris-
diction. (Currently, Germany is using
universal jurisdiction to try two Syrian
intelligence officers accused of tortur-
ing political dissidents in that country.)
Then came the revelations of US tor-
ture. Human rights groups filed a flurry
of universal jurisdiction complaints
against Bush administration officials
in several European countries. Both
the Bush and Obama administrations
pressed allies to reject them, which
prosecutors in France, Germany, and
Spain did, with almost audible sighs of
relief.
Yet when the Security Council re-
ferred to the ICC the atrocities com-
mitted by the Sudanese government in
Darfur, even the Bush administration,
which had called them a genocide,
went along. Under Obama, there was
a truce with the ICC, except on the
touchy subject of Afghanistan. The
State Department’s Office of Global
Criminal Justice even assisted the ICC
in some matters. All this came crash-
ing to a halt when Trump took office.
The new administration immediately
announced that it would eliminate the
Office of Global Criminal Justice, but
then backed down in the face of pro-
tests. Instead, it left the office leader-
less for almost three years.In May, Pompeo visited Prime Min-
ister Benjamin Netanyahu in Jerusa-
lem, and the Israeli press reported that
the subject of the visit was the sanc-
tions against the ICC—sanctions that(^3) Doenitz was found guilty on two
counts but acquitted of the charge of
“unrestricted submarine warfare,”
because the tribunal concluded that if
both sides had engaged in the practice,
it wasn’t illegal.
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