The United States Has Nothing to Fear From the ICC

During my 38 years in the U.S. Army, beginning as a cadet at West Point and ultimately serving as supreme allied commander in Europe, I always took pride in the fact that the U.S. military led the way in upholding the highest legal and ethical standards. We did not torture; we were not to abuse prisoners; we took pains to protect civilians from the collateral damage of war. And in those instances where we failed, we took remedial action.

Now Secretary of State Mike Pompeo, a West Point graduate, is leading a campaign against an international court that more than 120 countries have charged with helping uphold those standards. President Donald Trump himself has threatened economic sanctions against the court’s staff, their families, and those who assist their work when that work touches on U.S. conduct.

This is a tragic mistake. The United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law. It is also unnecessary, because U.S. domestic institutions give America the ability to acknowledge its errors and defend its interests without taking actions that place it in the company of rogue states like Burundi and the Philippines, which have threatened United Nations investigators and international prosecutors.

The immediate issue that sparked Pompeo’s attack on the International Criminal Court (ICC) is an investigation into serious crimes in Afghanistan. The gravest allegations concern widespread murder, persecution, and other horrible crimes that the Taliban and their allies have committed against Afghan civilians. The investigation also covers allegations of U.S. detainee abuse in the early years of the U.S. intervention—a charge that is painful, given precisely the long history of U.S. leadership in international law.

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The United States has played that leading role not only to protect innocent civilians but also to protect its own military forces. American men and women in uniform benefit from the expectation that all parties to a conflict will respect the Geneva Conventions and customary international law in how they conduct hostilities and treat prisoners. When the United States holds itself to these rules, allies that share the same values have greater confidence to work with the United States and defer to U.S. jurisdiction through status of forces agreements while U.S. service members are on their territory.

Taking the law seriously has also meant helping ensure there are consequences for the worst violations of it. Building on the precedent of the trials of German and Japanese leaders after World War II, the United States supported independent tribunals focused on Rwanda and the former Yugoslavia after the Cold War. The U.S. government has not joined the permanent ICC, as most of its allies have, but U.S. officials were deeply involved in negotiating its rules and procedures—under which the ICC can only investigate acts committed by Americans on the territory of an ICC member state if U.S. authorities do not investigate and prosecute those acts themselves.

I know from experience both the benefits and challenges these tribunals present. As commander of NATO forces in 1999, I witnessed firsthand how the U.N.’s Yugoslavia tribunal helped end the conflict in Kosovo and drive Slobodan Milosevic and other abusive leaders from power. But the tribunal also looked at whether the United States and its NATO allies had committed war crimes during the alliance’s intervention there.

The tribunal’s prosecutor examined all of the incidents where there had been damage to civilian life or property—including the bombing of a bridge, an attack on a TV tower, and a mistaken airstrike on the Chinese Embassy—before determining that further investigation would not be justified. This kind of scrutiny is uncomfortable, especially when it touches on acts under one’s own command, but the United States’ commitment to complying with the law, its reliance on professional legal guidance, and the rigor of the U.S. justice system give Americans the tools to manage it. I had strong legal counsel at every step in our mission in NATO and so have our commanders in Afghanistan.

Responding to that scrutiny, though, requires an honest assessment of it. Some have given the impression with respect to Afghanistan that the ICC is investigating U.S. service members for their actions in combat—“attempting to go after the young men and women of the United States of America who fought so hard,” as Secretary Pompeo recently put it. Those young men and women and their leaders have certainly earned their compatriots’ unceasing support. But the ICC investigation is not focused on how U.S. service members fought in the heat of battle.

Indeed, the ICC prosecutor, Fatou Bensouda, stated in 2017 when seeking authorization to investigate that she had “no reasonable basis to believe” that war crimes had occurred in incidents where U.S. action in Afghanistan had killed civilians, including the tragic and accidental U.S. strike on a hospital in Kunduz. Rather, the prosecutor has focused on how U.S. personnel treated detainees in their custody during a specific and shameful period, primarily between 2003 and 2004, when, among other things, U.S. intelligence personnel were authorized to use waterboarding and other abusive interrogation techniques that U.S. authorities once prosecuted themselves.

Secretary Pompeo can boast that the United States is “the most civilized nation in the world,” but its actions will determine whether it lives up to that self-image—and whether the ICC and courts in other countries will defer to U.S. investigations. American justice institutions are generally strong, but the U.S. government upholds or corrodes their credibility day by day. The pardons that President Trump issued last year, reversing or ending proceedings against U.S. service members convicted or charged with serious crimes against civilians and prisoners in Afghanistan and Iraq, did great damage in this respect. So, too, has the president’s loose talk about committing war crimes, such as pillaging Syrian oil or destroying Iranian cultural sites.

The most important issue in determining whether the ICC and other courts defer to U.S. institutions is how the United States has handled allegations of torture—particularly on the intelligence side, where it is hard to avoid the conclusion that no one has faced consequences for the decisions that U.S. policymakers made. As a step toward showing that U.S. authorities can and will deliver justice themselves, even in this context, the United States should organize a truth commission that would provide a forum for admitting mistakes and offering restitution where appropriate. Washington should also provide greater clarity about certain investigations the United States has undertaken into these allegations, including why they have not led to prosecutions.

Great nations are willing to face the truth, accept accountability, and admit their mistakes. In the Kosovo campaign, the secretary of defense and the director of the Central Intelligence Agency publicly apologized for the mistaken bombing of the Chinese Embassy in Belgrade.

Of course, the Afghan people themselves—and the better future for which U.S. servicemen and women have helped them fight for two decades—should not be an afterthought in all this. The ICC can play a useful role with respect to the alleged abuses of the Taliban, Afghan security forces, and terrorist groups operating in the country. Some form of transitional justice is essential for the health and long-term stability of a society that has endured the trauma of brutal wars. An ICC investigation can help ensure that accountability is not neglected in Afghanistan’s ongoing peace process and make it more difficult for persons responsible for heinous crimes to become the country’s leaders. U.S. support for even this part of the investigation seems unlikely, but it could help.

Attacking international bodies like the ICC may feel like a cost-free way to score political points. But just as Americans benefit from the work of the World Health Organization and other multilateral institutions the Trump administration has turned against, the existence of tribunals to help enforce international law is an asset to U.S. security. Americans should continue to protect U.S. service members with a firm commitment to international law. And when Americans’ actions are scrutinized, the U.S. government should have the confidence to react in a way that preserves the benefits of these institutions, protects U.S. personnel, and does justice to American values.