Trump, and Bannon and Draft Executive Orders...Oh My! The Future of US-ICC Relations.
There is limited amount of information about future Trump administration policy towards the ICC. However, there are indicators of future ICC-Trump relations: a recent draft executive order, Trump policy on international organizations, previous consideration of notorious ICC opponent John Bolton for top foreign policy positions, the State Department website, and Breitbart attitudes towards the ICC. We need to analyze these because future US relations with the ICC will impact the future of the ICC, although not as much as some fear.
Some of the government's recent actions and policies have promoted conversations about the risk of the US ceasing its cooperation and engagement with the ICC. A recent article by the Center for American Progress remarked, “a Trump presidency means that U.S. commitment to international criminal justice—and to human rights in general—may soon be a thing of the past.” This speculation may be correct, but it can only be just that.
The New York Times reported that a provision in Trump’s draft executive order titled, “Auditing and Reducing U.S. Funding of International Organizations,” calls for a committee to consider cutting funds for the ICC. This provision would not mark a change in US practice because the US can not fund the ICC. In fact, the American Servicemembers Protection Act (ASPA) already bans US funding for the Court. However, its existence could hint at the administration’s awareness of and attitudes towards the ICC. Some aspects of the adversarial nature of the administration’s first action related to the Court might be a source of concern for future ICC-US relations. However, that is not yet clear. The provision may only imply that the US is not likely to begin allocating funds for the Court, or the administration may have wanted to take a symbolic stance against increased cooperation with the ICC. The provision could mean that the administration does not fully understand existing US law on the Court. It may simply be the result of an administration member seeing the ICC on a list of multi-lateral organizations. At the very least, the draft provision’s existence means that a high-level member of the Donald Trump administration is aware of the ICC.
Additionally, the repeated consideration of John Bolton for top foreign policy positions has been a source of speculation on the Trump administration’s future policies related to the Court. During the Bush administration, Bolton spearheaded the strategy of active opposition to the Court. Under Bolton's influence, Bush deactivated the Rome Statute and passed the ASPA. In addition to banning the allocation of US funds to the ICC, the ASPA authorized the use of "all means necessary and appropriate" if the ICC takes an American citizen into custody. Given that the administration seriously entertained the idea of Bolton, such a firm opponent to the ICC, as the Secretary of State or Deputy Secretary of State, it may not be likely that the Trump administration may well not maintain their predecessors' policy of positive engagement.
Another cause of concern has been Trump’s criticism of US engagement in international organizations, notably the UN. Trump has shown hostility towards institutions like the UN, and the administration has sought to leave, or cut funds, to international organizations even where the US holds key leadership positions. Therefore, the Trump administration may not only end the Obama relationship with the ICC, but also could become hostile towards the Court.
The State Department website may be another hint about the Trump administration’s attitudes. The site states that the “current U.S. policy” is reflected through the May 2010 National Security Strategy:
“From Nuremberg to Yugoslavia to Liberia, the United States has seen that the end of impunity and the promotion of justice are not just moral imperatives; they are stabilizing forces in international affairs. The United States is thus working to strengthen national justice systems and is maintaining our support for ad hoc international tribunals and hybrid courts. Those who intentionally target innocent civilians must be held accountable, and we will continue to support institutions and prosecutions that advance this important interest. Although the United States is not at present a party to the Rome Statute of the International Criminal Court, and will always protect U.S. personnel, we are engaging with State Parties to the Rome Statute on issues of concern and are supporting the I.C.C.’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”
The fact that, after the administration has made changes to the site—including the removal of pages and documents related to refugees and climate change, this page remains is notable. It may merely reflect an overwhelmed and unorganized State Department. Perhaps the Trump administration has not paid any attention to it. Given that the National Security Strategy is state department policy until it is replaced, it could only mean that issuing a new policy on the ICC is not, currently, a top goal of the Trump administration. Ideally, the page's presence is an indicator that the Trump administration will not differ significantly from the Obama administration in its policy on the ICC.
We know that Steve Bannon, Trump’s chief strategist and former editor of Breitbart, has turned some of Breitbart’s views into Trump administration policy. Therefore, Breitbart is relevant in predicting the Trump administration’s future attitudes towards the ICC. Inaccuracies about the Court are common on the site. An article from January 25, 2015, stated the the ICC was located in Switzerland. This could imply an attitude of ignorance towards the Court. In fact, under Bannon, Breitbart was not as aggressive towards the ICC as one might suspect. Breitbart articles have not been particularly supportive of the ICC, but they, also, did not engage in attacks against the ICC based on sovereignty or US vulnerability. It did not discuss US ratification of the Rome Statute. In an article about Charles Taylor’s conviction, Breitbart acknowledged that the victims were happy with the conviction. Nonetheless, the radical right-wing site has also written off international criminal justice as useless for procuring peace. An article on South African withdrawal from the Court stated, “no one could seriously believe that Adolf Hitler would have cancelled the Holocaust out of fear of being prosecuted by some court.” Breitbart has also questioned ICC jurisdiction over Israelis in the Palestine situation, and it referred to potential future charges in the ICC against Netanyahu as “trumped-up charges.” Therefore, the Trump administration might argue the the ICC does not have jurisdiction over the Palestine situation. Elsewhere, Breitbart does not strongly condemn the Court’s existence, nor does it analyze US engagement with the Court. This may translate to a Trump administration that ignores the Court, except when the Court impacts Israel.
Under the Obama Administration, the US assisted the Court with investigations and participated as an observer at Assembly of States Parties (ASP) sessions. US Special Forces have also assisted with efforts to capture high-level LRA officials with ICC arrest warrants. Admittedly, the loss of this support would be a setback for the ICC. ICC prosecutor Fatou Bensouda remarked that withdrawal of positive US engagement with the Court would hamper the ICC. However, it will not stunt the ICC if the US ceases to cooperate. Many supporters of international justice misunderstand the Court and the political situation surrounding it. Consequently, they overstate the effect that a lack of US support would have on the ICC. It would not damage the Court.
Breitbart assumes that the Court is standing on shaky ground, citing lack of support, but, the ICC enjoys widespread support. Since Gambia, South Africa and Burundi announced their intention to withdraw, new political developments in Gambia and South Africa have occurred and it is possible that neither Gambia nor South Africa will follow through with withdrawal. Moreover, the majority of African state parties gave their support to the Court at last fall's ASP session. A threat of massive ICC withdrawal is not as potent as many believe.
If the situations of Afghanistan and Palestine move beyond preliminary examination at the ICC, Trump may respond with hostility. The reaction might be particularly violent if the Court issued arrest warrants for US nationals for crimes committed in Afghanistan. Currently, the Afghanistan situation is in preliminary examination at the ICC. The Court has jurisdiction to prosecute American nationals who committed Rome Statute crimes in Afghanistan, because the Court has jurisdiction over all crimes committed on the territory of a state party. Afghanistan is a state party to the Rome Statute, and the Court has had jurisdiction over Rome Statute crimes in Afghanistan since May 1, 2003. If the Court finds evidence of such crimes, then the Court should follow through with its responsibility to fight impunity regardless of political pressures. The Trump administration might respond violently to an investigation or arrest warrant for an American, but it might be incorrect to assume this would inevitably harm the Court. An investigation or an arrest warrant would likely produce increased support from the international community and civil society, and, a defensive reaction from the international community would likely emerge in response to a violent response from the Trump administration.
However, there is hope for future US engagement with the ICC. The Court enjoys widespread support from the American people; 72% of Americans support the ICC according to a poll by the Chicago Council on Global Affairs. Furthermore, criticism of the ICC has been fueled by misunderstandings. The more that is understood about the Court, the more support that Americans will have for it.
The Trump administration has not released any official policy statements on the ICC; so, it could interact with the Court in several different ways. The administration might be a reason for concern about the future of the US-ICC relationship. It could respond with hostility to investigations into the situations of Afghanistan and Palestine. Or, it might maintain a neutral or positive attitude towards the Court. The US does find the atrocities that the Court tries to be appalling, and the Court is an effective institution to deal with some of them. However, the administration may nonetheless even ignore the Court. It might not accept any of its predecessor’s attitudes towards the ICC.
Even if the US withdraws from its previous policy of positive engagement, the Court will not fall apart. However, the broad support of 124 countries will ensure that the Court will continue to work well. Therefore, the ICC will exist and work to end impunity far into the future.