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Sara Ochs: A perilous showdown between the U.S. and the ICC

Sara Ochs: A perilous showdown between the U.S. and the ICC

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When it comes to international criminal law, the United States is largely untouchable.

No international court or tribunal has ever convicted an American for a war crime or crime against humanity — not for the My Lai massacre during the Vietnam War; not for the “Highway of Death” during the first Gulf War; and not for the Abu Ghraib prison scandal in Iraq, among other horrendous moments in our history.

Not that it matters. A federal law colloquially named The Hague Invasion Act gives the U.S. president the right to use military force to free any American detained by the International Criminal Court, based in The Hague, Netherlands.

And though it’s never been used, that doesn’t mean it won’t be, especially now that the ICC is going toe-to-toe with the Trump administration.

On March 5, the ICC Appeals Chamber approved the investigation of alleged crimes committed within and connected to conflicts in Afghanistan by American CIA and military personnel. The timing couldn’t have been more ironic. Just days earlier, American leaders announced a tentative peace deal with the Taliban which, if finalized, would bring to an end our nation’s longest-ever military conflict.

The response by the Trump administration was as strong as it was predictable. U.S. Secretary of State Mike Pompeo threatened to take “all necessary measures to protect our citizens from this renegade, so-called court.” Because the U.S. is not a state party to the ICC, Trump has no obligation to cooperate.

But we should. After all, international criminal law — whether we like it or not — protects American troops and American interests. The foundation for most international criminal laws, especially those governing war crimes — one of the four “core” crimes over which the ICC has jurisdiction — is the concept of reciprocity. Our troops will refrain from engaging in unnecessary destruction and violence because we have a legal guarantee our enemies will do the same.

In disregarding the rules of war, such as by enacting formal CIA policies to torture prisoners of war or by tweeting threats to destroy ancient cultural sites, we are inviting our enemies to do the same. We are increasing the threats posed to U.S. troops on the ground and exposing our service members to needless danger.

Simultaneously, by disregarding international laws on war, we are making our own missions more difficult. It’s easier to play the game with a clear set of rules. Without rules, guideposts routinely shift, often leaving it impossible for either side of a conflict to emerge as a clear winner.

Largely because of this, America has routinely found itself embroiled in conflicts from which it is difficult — and near impossible — to disengage.

Cooperating with international laws also promotes American foreign policy interests. By routinely and publicly undermining international criminal law, the Trump administration has provided our enemies with carte blanche to do the same. And in bullying international courts to prevent prosecutions of American citizens, Trump has likewise provided an instruction manual for authoritarian leaders, like Bashar al-Assad and Kim Jong Un, to evade justice.

The level of international stability directly correlates to the number of nation states complying with international law. With more global stability comes more global trade and more nations in which American financial interests can flourish. While there may be money in war, there’s more money in peace.

And we have put our support behind international courts before when they have furthered our geopolitical interests. The U.S. was a primary donor for the international court established to prosecute the Rwandan genocide — notably a conflict in which U.S. troops were not involved.

Simply put, viewing international criminal law as a stick, rather than a carrot, is misguided. As the ICC moves forward, we know that Americans will find themselves the targets of a criminal investigation over which the U.S. government has no control. We also know that we have a president who, if past is prelude, will have no qualms with using force to keep Americans out of prison — even those who willingly committed war crimes.

In the fight between the ICC and the United States, we will have to stay tuned to see whether justice will prevail over politics.

Sara L. Ochs is an international criminal law scholar and professor at Elon University School of Law. She can be reached at sochs@elon.edu.

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