50 The New York Review
America the Unaccountable
David Luban
The Trump administration has de-
clared war on the International Crimi-
nal Court—the world’s only permanent
court whose mandate is to pursue cases
of genocide, war crimes, and crimes
against humanity. President Trump
issued an executive order on June 11
that authorizes severe sanctions on ICC
employees, as well as the court itself,
if it goes forward with planned inves-
tigations of alleged war crimes by the
US or its allies. (Though not named in
the order, Israel is the sole US ally now
under ICC scrutiny that fits its terms.)
Sanctions—visa restrictions, asset
freezes, and bans on financial transac-
tions with the sanctioned person—are,
according to federal law, emergency
measures taken against “unusual and
extraordinary” foreign threats. They
are typically used against terrorists
and drug cartels, and in cases of human
rights abuses or hostile government
actions like the Iranian seizure of US
hostages in 1979. Never before has an
administration authorized sanctions
against judges and prosecutors to stop
an investigation of US conduct.
No one at the ICC, which sits in The
Hague, has been listed as a target for
sanctions yet, but Trump’s executive
order plainly aims to weaken the court,
deter its employees from continuing
their work, and discourage people and
companies from doing business with it
in any way. Sanctions could block the
court from financial transactions with
anyone in the world who uses US dol-
lars or wants to stay on the right side
of US regulators.^1 There is a very real
possibility that ICC employees, includ-
ing judges and prosecutors, would not
have their salaries paid. The sanctions
cover “services” as well as financial
transactions, which could affect law-
yers writing amicus briefs, war crimes
investigators in the field, and human
rights NGOs that aid the ICC. If the
court itself is sanctioned, it could lose
the ability to pay for its Internet service
or even its building. That could doom
ICC inquiries into genocidal attacks on
the Rohingya people by Myanmar’s
military, war crimes committed by the
Lord’s Resistance Army in Uganda,
and repression by Nicolás Maduro’s re-
gime in Venezuela, among other cases,
none of which has anything to do with
the US or Israel.
The ICC prosecutor, Fatou Ben-
souda, is a particular target of US
wrath. Bensouda is a Gambian lawyer
and former minister of justice with a
long career prosecuting atrocity crimes.
Eight years ago, Time proclaimed her
one of the hundred most influential
people in the world; last year the State
Department revoked her US visa. Ben-
souda’s term ends a year from now, and
the search for her successor is already
under way. It might become an unenvi-
able and perilous job.
The Trump administration is angry
at Bensouda because in 2017 she asked
the ICC for permission to investigate
“the situation in Afghanistan,” includ-
ing crimes by the Taliban and Afghan
national forces but also by US person-
nel, mostly connected with the CIA’s
post–September 11 torture program.
Last December, Bensouda requested
a ruling (still pending) on whether she
can open an investigation into “the sit-
uation in Palestine.” (By the terms of
the Rome Statute, which established
the ICC, the prosecutor investigates en-
tire “situations,” involving conduct by
all sides, “in which one or more crimes
within the jurisdiction of the Court ap-
pears to have been committed.” The
prosecutor then decides which, if any,
specific crimes to charge.)This March, the ICC finally gave the
go- ahead to the Afghanistan investiga-
tion. Secretary of State Mike Pompeo
immediately blasted “this renegade,
so- called court” and its “political
vendetta.” He called the ICC an “un-
accountable political institution mas-
querading as a legal body” and vowed
to take “necessary measures.” It is no
surprise that Donald Trump, who calls
Supreme Court defeats “shotgun blasts
in the face,” believes that foreign inves-
tigations of US torturers call for fierce
retaliation, not mere noncooperation.
Who the ICC is a “renegade” from
is unclear. Almost two thirds of the
world’s countries belong to it, includ-
ing every NATO member except the US
and Turkey, as well as other US allies
and neighbors: Canada and Mexico,
Australia and New Zealand, Japan
and South Korea. All Latin American
countries except Cuba and Nicaragua
are ICC members. As for unaccount-
ability, the ICC is accountable to its
123 member states, whose delegations
meet annually to oversee its budget
and rules. They appoint its officers, and
they can remove them for misconduct
or failure to carry out their duties—a
strong check on prosecutors and judges.The US problem is that “we tortured
some folks,” as Barack Obama grat-
ingly phrased it in 2014 while refus-
ing to hold anyone accountable for it.
Yes, we did—more folks, more cruelly,
more deliberately, and far longer than
most Americans care to know or are
willing to admit. Bensouda wants to in-
vestigate only a fraction of the tortures:those directly connected with Afghani-
stan. Her office explains, in its lawyerly
way, that there “is reasonable basis to
believe” that US personnel committed
“torture,... outrages on personal dig-
nity, and rape.” “Rape” in this case re-
fers to pumping food into the rectums
of prisoners, with no medical necessity,
in order to control their behavior—a
crime that according to US law is ag-
gravated sexual assault.
In announcing the sanctions at a
press conference, Pompeo wrapped
himself in righteousness: “When our
own people do wrong, we lawfully pun-
ish those individuals, as rare as theyare, who tarnish the reputation of our
great US military and our intelligence
services.” If that were true, US person-
nel would have nothing to fear from the
ICC, which is required to defer to na-
tional investigations and prosecutions.
But it isn’t true. Standing beside
Pompeo were the attorney general, de-
fense secretary, and national security
adviser. Conspicuously absent was CIA
director Gina Haspel, who was station
chief at an agency black site in Thai-
land where torture took place, and who
was later involved in the destruction of
videotapes of other torture. Her pun-
ishment has been career advancement
under three presidents. CIA employees
even more deeply involved in rendition
and torture were also promoted. The
agent who in 2003 oversaw the kidnap-
ping, sodomizing, and torture of Kha-
lid El- Masri—a German- Lebanese
citizen whose name was similar to that
of a suspected terrorist but had no
connection to terrorism himself—was
made head of the agency’s Global Jihad
Unit.^2 Jay Bybee, who while serving in
the Office of Legal Counsel signed the
first two Bush administration torture
memos in 2002, was punished with a
lifetime appellate judgeship.
As for the hands- on torturers, 101
were investigated for exceeding even
the brutal interrogation techniques
permitted by the OLC memos. The
result: zero indictments. As I docu-
mente d i n my b o ok Torture, Power, andLaw (2014), both the Bush and Obama
administrations fought aggressively
against accountability by blocking law-
suits and pressuring US allies to drop
their own investigations (including,
for instance, Germany’s review of El-
Masri’s treatment). In 2006 Congress
immunized interrogators retroactively.
In the end, no one connected with the
torture program was ever charged, dis-
ciplined, or demoted.
Fourteen years after the program
supposedly ended, the CIA still sti-
fles information about it, delaying and
heavily redacting unfavorable books by
former insiders while allowing flatter-
ing ones to be published. For years, de-
tainees were forbidden to tell their own
lawyers what had been done to them.
At the Guantánamo military commis-
sions, the government continues to
fight to keep torture out of the record.
The interview rooms where defense
counsel met their clients were bugged,
presumably to get advance warning of
what they might say. Earlier this year,
military commission defense counsel
spotted a silver tablet on the prosecu-
tors’ table. It turned out to provide a di-
rect link to the CIA so it could instruct
the prosecutors to halt the proceedings
if classified information about the ren-
dition and torture program was about
to be revealed.The US objects that prosecuting sus-
pects from countries that never joined
the ICC violates the sacred principle of
state sovereignty and that treaties like
the Rome Statute cannot bind non-
parties. This argument is superficially
attractive but completely wrong.
When delegates from 160 countries
gathered in Rome in 1998 to create
the ICC, they were understandably
nervous about its powers. They didn’t
want to create what American critics
called a “global Ken Starr” launching
politicized prosecutions, so they built
in elaborate firewalls. Unlike previ-
ous international criminal tribunals,
the ICC can only take cases that per-
petrators’ home states are unwilling
or unable to pursue themselves. This
principle is known as “complementar-
ity,” and it is all- important: the ICC is
there to complement and encourage
national accountability efforts, not to
substitute for them. As a result, a state
can put a case safely beyond the ICC’s
reach by investigating it honestly and
prosecuting when the evidence calls for
it. Other protections are procedural.
Every significant step by the prosecu-
tor needs approval by a panel of three
judges from three different countries,
the “Pre- Trial Chamber,” which is no
rubber stamp. And the UN Security
Council can halt any ICC investigation
or prosecution for a year at a time, re-
newable indefinitely.
Most relevant to the US sovereignty
argument is a strict limit on the court’s
reach. It has jurisdiction only over
crimes committed on the territory of a
member state or by one of its nation-
als. (In addition, nonmember states
can grant jurisdiction to the court on
an “ad hoc” basis, but only for crimes
committed on their territory or by their
nationals; the UN Security Council,International Criminal Court prosecutor Fatou Bensouda addressing the court,
The Hague, December 2019Abdullah^Asiran/AnadoluAgency/GettyImages(^1) See the article by the former US Trea-
sury official Adam M. Smith, “Dis-
secting the Executive Order on Int’l
Criminal Court Sanctions,” Just Secu-
rity, June 15, 2020.
(^2) See Case of El- Masri v. The Former
Yugoslav Republic of Macedonia, Eu-
ropean Court of Human Rights, Stras-
bourg, December 13, 2010.