On Monday, Americans found another reason to mistrust supernational institutions, when the International Criminal Court chief prosecutor requested permission to investigate U.S. military operations in Afghanistan.
In Fatou Bensouda's submission to ICC judges, she claimed there is reasonable suspicion of "War crimes by members of the United States ('US') armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency ('CIA') in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004."
Bensouda says she has the right to investigate due to the "absence of relevant national proceedings against those who appear to be most responsible for the most serious crimes within this Situation." That finding is necessary to allow the ICC to supersede a nation's investigative powers.
Regardless, by threatening U.S. military and intelligence personnel and thus American sovereignty, Bensouda's effort deserves unambigious rebuke. This is no small concern that can be ignored. For one, because many nations are ICC members, Bensouda's action could prevent U.S. military personnel from global travel and thus their pursuit of happiness. And in expliclty threatening U.S. allies who assisted in the CIA's rendition program of top al Qaeda terrorists, the ICC is also damaging to U.S. foreign policy interests.
As such, if the ICC judges now authorize Bensouda's investigation, President Trump should order the U.S. to obstruct the ICC in three ways.
First, referencing his authority under the 2002 American Service-Members Protection Act (specifically designed for situations like this one), the president should bar U.S. government agencies from cooperating with ICC investigators.
Second, Trump should clarify that he will sanction any nation that facilitates the ICC detention of former or active service U.S. government personnel.
Third, Trump should warn that he will consider any relevant detention of U.S. persons as unlawful kidnappings that justify U.S. remedial action.
To those who suggest an ICC investigation would be objective and just, I have a simple response: You are wrong.
For a start, the ICC's pretense of objectivity in committing to also investigate the Taliban and Haqqani networks alongside the U.S. is a joke. The only justice those terrorists have faced and will face is that of American, Afghan, and allied kinetic power.
Moreover, American sovereingty is under attack here. As a sovereign democracy, the U.S. alone has the authority over judicial remedy against its American citizens acting in government service. The ICC has no right to claim its remit.
Still, it's clear that the ICC has a vendetta against a wide array of U.S. officials. In its 181-page investigation request, the ICC argues that its prosecutors "can request ICC Judges to issue either summons to appear or arrest warrants, against those, as a rule, believed to be most responsible, no matter who the perpetrator, for alleged atrocity crimes committed in connection with the Situation in Afghanistan."
That "no matter the perpetrator" takes significance in the context of two other claims in the request. First, the ICC's claim that it has power to investigate U.S. officials because "None of the [U.S.] investigations appear to have examined the criminal responsibility of those who developed, authorised or bore oversight responsibility for the implementation [of the accused war crimes]."
Second, the ICC's claim that its investigative remit "include persons who devised, authorised or bore oversight responsibility for the implementation by members of the US armed forces or members of the CIA of the interrogation techniques that resulted in the alleged commission of crimes within the jurisdiction of the [ICC]."
The clear takeaway is that the ICC believes it can investigate and charge top U.S. officials such as former President George W. Bush, former Secretary of Defense Donald Rumsfeld, and former CIA Director George Tenet.
As democratically-elected or appointed leaders acting subject to U.S. laws, those U.S. officials had the legal right to authorize the interrogation practices that were employed. Where those practices were suspected of falling foul of U.S. law, they have been investigated by the Department of Justice and relevant oversight authorities. Where U.S. military personnel took unlawful actions, they have been punished under the Uniform Code of Military Justice.
That ends the matter: No supernational organization has the right to second-guess American law.
Nevertheless, there's also an absurd quality to the ICC report. Alongside other more serious claims — albeit those that, as explained above, fall under U.S. legal authority — the ICC includes interrogation tactics like solitary confinement and exposure to phobias as possible war crimes "committed with particular cruelty."
Give me a break.
Yet there's one final indignity to this mess. The ICC repeatedly references the biased and confused CIA interrogation report by Senate Democrats as evidence for its own investigative remit. As an example, the ICC declares that "The treatment of CIA detainees appears to have been particularly grave on a qualitative assessment. The report of the Senate Select Committee on Intelligence noted that interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others."
As I warned, the Senate report was always going to damage U.S. interests and personnel. As they read the ICC request, Senate Democrats should hang their heads in shame.
Ultimately, however, the ICC's action on Monday is a reminder of why we must always hesitate to trust organizations outside of our own democratic authority. What we're seeing now is exactly what Bush warned might happen when he justified pulling the U.S. out of the ICC in 2002. At the time, senior Democrats, media talking heads, and academics condemned Bush as a scaremongerer.
But Bush was right, and now it's up to Trump to respond.