From Center for Constitutional Rights | Original Article

On June 5, 2019, the Center for Constitutional Rights filed a complaint with the United Nations Special Rapporteur on the Independence of Judges and Lawyers alleging ongoing interference by the United States into the operations of the International Criminal Court (ICC) and requesting a formal comprehensive independent investigation. The complaint cites the steady stream of threats made by Donald Trump and other senior officials against the court if it proceeded to open an investigation into war crimes committed by U.S. military and C.I.A. officials in Afghanistan and other countries. In the face of these threats, the Pre-Trial Chamber refused to authorize the investigation of any crimes in Afghanistan or involving U.S. citizens, citing “changes in the relevant political landscape” as a basis for concluding that an investigation would be unsuccessful.

“The ICC decision not to open an investigation into crimes in Afghanistan and those involving U.S. citizens in the face of U.S. bullying sent the dangerous message that politics trumps justice,” said Center for Constitutional Rights Senior Staff Attorney Katherine Gallagher. “The ICC is a court of law resort.  If it cannot – or will not – hold the powerful accountable for the most serious crimes, it fails to meet its core purpose of ending impunity and showing no one is above the law.”

In October 2017, ICC Prosecutor Fatou Bensouda requested authorization to open an investigation into war crimes committed by U.S. military and C.I.A. personnel in Afghanistan and in secret detention facilities, along with crimes against humanity by the Taliban and war crimes by Afghan forces. In support of the prosecutor’s request, the Center for Constitutional Rights submitted “victims’ representations” on behalf of two men indefinitely detained at Guantánamo, detailing the torture they endured in CIA black sites, Department of Defense facilities, and proxy detention, that is, detention by third countries at the behest of the United States. Tens of thousands of additional victims in Afghanistan, most of whom are living with the effects of these crimes on a daily basis, similarly urged the court to open an investigation.

On April 12, 2019, in a decision that was widely criticized by human rights groups, the ICC declined the request to open an investigation. Despite finding that requirements were met regarding both jurisdiction and admissibility, the pre-trial judges cited “the complexity and volatility of the political climate…mak[ing] it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities.” A long-awaited concurring opinion by the presiding judge was issued on May 31, 2019, triggering a deadline of next week for any appeals.

Prior to the court’s decision, Donald Trump and other high-ranking U.S. officials, including National Security Advisor John Bolton and Secretary of State Mike Pompeo, made numerous threatening statements, including that ICC officials would be criminally prosecuted if the investigation proceeded, and warned of taking a host of retaliatory actions against court officials and cooperating parties. Most dramatically, the week before the decision, U.S. Secretary of State Mike Pompeo revoked the ICC Prosecutor’s visa after announcing that the U.S. was prepared to take further steps to obstruct this or other investigations implicating Israel and other allies, including implementing economic sanctions on the court or cooperating states.

U.S. officials praised the Pre-Trial Chamber’s decision not to investigate, with Secretary of State Pompeo celebrating the clear link between the U.S. threats and the ICC decision: “The ICC’s decision follows the State Department’s March 15 announcement of visa restrictions on ICC personnel involved in any investigation of U.S. personnel, and I am glad the Court reconsidered its actions.”

In the complaint, attorneys cite seven different principles and rights under international law that Trump and other high-ranking U.S. government officials have violated by interfering in the ICC’s investigation. The Center for Constitutional Rights’ complaint builds on a letter sent by the special rapporteur to the United States in March seeking information on U.S. policy towards the ICC, and further calls for a comprehensive investigation into the impact of U.S. threats on ICC judges, member states, and victims’ representatives, as well as the ongoing impact on the court.

This filing comes as U.S. officials, including Secretary of State Mike Pompeo and Ivanka Trump, visit The Hague this week.