A Crime Against Sovereignty

The decision last month by the International Criminal Court (ICC) to open a “preliminary examination into the situation in Palestine” has conjured up images of Israeli officials being led off in chains to The Hague to face charges of war crimes and crimes against humanity. But it’s not just Israelis who need to worry about the ICC.

The risk of ICC prosecutions of American military personnel and government officials has been growing in recent years. Since at least 2007, the ICC has been conducting a preliminary examination into alleged war crimes in Afghanistan, not just by the Taliban and Afghan government forces, but also by NATO forces. The ICC revealed for the first time late last year that this examination is specifically evaluating whether the use of “enhanced interrogation techniques” by U.S. forces in Afghanistan constitutes a prosecutable war crime.

There is no reason to think the ICC will limit its scrutiny to U.S. actions during the Bush administration’s war on terror. Leading human rights groups are cataloguing on an ongoing basis war crimes allegedly committed during the Obama administration. And the ICC now has before it a complaint submitted last year alleging that targeted drone strikes — the signature counterterrorism tool of the Obama administration — warrant prosecution by the ICC.

For any international organization to claim the right to exercise this sort of authority over countries that have not consented to that organization’s jurisdiction is a breathtaking departure in international law. And indeed the Obama administration insists that the ICC has no authority to prosecute citizens of countries — such as the United States and Israel — that have not ratified the treaty establishing the court. The ICC has made clear, however, that it rejects this view, claiming that whenever the forces of a non-party enter onto the territory of an entity that it deems to have ratified that treaty — such as Afghanistan or Palestine — it gains jurisdiction over that non-party.

Congress sought to guard against these risks in the American Service-Members’ Protection Act of 2002 (ASPA). Disparaged by its critics as the “Hague Invasion Act” — referring to the city where the ICC is headquartered — ASPA did not literally declare war on the ICC, but it did the modern equivalent: It authorized the president to “use all means necessary,” including military force, to free U.S. and allied military personnel and government officials detained by the ICC.

While the notion of threatening use of lethal force to free Americans or American allies held by the ICC struck some as an overreaction, Congress evidently concluded that this was no more radical than the threat it was addressing. Under traditional conceptions of international law, it would be an act of aggression warranting a military response for a foreign government to seize a current or former U.S. president, cabinet member, or military officer for his official actions. ASPA represents a congressional judgment that this would be no less true if such a person were seized by the ICC, or by a foreign government claiming to act under authority of the ICC.

In addition, ASPA imposed severe restrictions on U.S. cooperation with the court, including prohibitions on extradition, sharing of law enforcement information, and provision of financial or material support. Despite its draconian provisions, the legislation passed the Senate 75-19, drawing support from senators ranging from Jesse Helms to Hillary Clinton and John Kerry.

But before resorting to military force in response to ICC actions, it would make sense to consider less extreme measures. The most obvious — and proportionate — measure would be for the United States to respond in kind to the commencement of foreign war crimes prosecutions against Americans.

Specifically, Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.

Call it a “crime against sovereignty.” Any person indicted for such a crime would become a fugitive from U.S. justice, subject to international arrest warrants and liable to prosecution if brought into U.S. custody. They would, in other words, find themselves in precisely the same predicament as the American they sought to turn into an international fugitive through their official acts. And as under ASPA, the protection of this law could be extended not just to Americans, but also to the personnel of American allies that request such protection.

The prospect of U.S. prosecutions of ICC and foreign law enforcement officials admittedly is an unsavory one. But it is no more unsavory than ongoing threats to prosecute Americans for actions undertaken by them pursuant to the constitution and laws of the United States to defend the nation. And certainly threatening criminal prosecution in such cases would be a more modest and more credible response than threatening military action, which was the remedy Congress came up with the last time it considered the problem.

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