Trump Should Support the International Criminal Court

With the presidential transition underway, observers have noted with concern President-elect Trump’s hostility toward international institutions. As CFR Senior Fellow Stewart Patrick notes, “[T]here is one prediction we can take to the bank: The United Nations is going to get hammered.”

In the aftermath of the recent controversial UN Security Council resolution criticizing Israeli settlements, Trump accused the world body of causing more problems than it solves, calling the 71 year-old institution “a waste of time and money,” and tweeting, “The United Nations has such great potential but right now it is just a club for people to get together, talk and have a good time. So sad!” Indeed, it has become fashionable once again in Washington to beat up on the UN—that is—until the next international emergency when the world will turn to Turtle Bay to solve global problems and respond to crises that no one state can address alone. As Suzanne Nossel points out, “Though they may be loath to recognize it, the president-elect and his top official will quickly find that they need the UN as a negotiating forum, a source of international legitimacy and an expeditionary body ready to venture where the United States won’t go.”

While the incoming president has expressed skepticism toward the UN and other international institutions, Trump has not said much about the International Criminal Court (ICC). Like the UN, the idea behind creating the ICC emerged from the ashes of World War II and the Nazi Holocaust. It took another half century after the founding of the UN before the ICC came into effect. Its establishment not only offers a way to punish war atrocities, but also provides deterrence against would-be abusers from contemplating committing genocide and other serious international crimes.

As is true with domestic criminal justice, international criminal justice is important not only to secure justice for victims, but also to preserve rule of law and promote greater peace, security, and stability in an otherwise tumultuous world. When courts dispense justice, aggrieved individuals and communities are less likely to take matters into their own hands, which can escalate into serious conflicts with spill-over effects for us all. International criminal justice is not only the right thing to do, but the smart thing to do. National courts can occasionally prosecute these crimes, but are sometimes not willing or able to do so.

While the ICC is a relatively new institution, it has investigated numerous allegations and prosecuted several cases, leading to a handful of convictions thus far in cases ranging from the use of child soldiers to the use of mass rape as a weapon of war. Last year, the ICC handed down a historic conviction, finding Congolese rebel leader Jean-Pierre Bemba guilty of rape as a war crime and crime against humanity, the Court’s first conviction of rape as a weapon of war. The landmark trial and conviction sends the message that senior officials of armed forces or leaders of militias will be held accountable if they fail to punish or prevent sexual violence.

As I have written before, terrorist groups also use rape and other forms of sexual violence not only to instill fear but also as a way to consolidate their power, foster their ideology, and generate revenue for future acts of terror. Very few courts have the expertise, infrastructure, and resources of the ICC to prosecute complex, transnational crimes. The Bemba conviction proves the ICC’s efficacy in dispensing justice, and it opens the door for prosecuting leaders of terror networks such as Boko Haram and the self-proclaimed Islamic State.

While the ICC has had its successes, it also faces challenges. Last fall, Burundi, South Africa, and Gambia indicated their intent to withdraw from the Court, citing its disproportionate focus on cases in Africa, though the new government in Gambia is likely to rejoin.  Soon after reports of the African withdrawals, Russia jumped on the bandwagon by announcing it too was withdrawing from the treaty that created the ICC. Given that Russia was never actually a full party to the treaty, this cynical move is largely symbolic, but reflects Russia’s concern over its potential liability for its actions in Crimea and Syria.

Despite the Court’s challenges, President-elect Trump would be foolish not to support the important work it does. The ICC has played an important role in advancing interests the U.S. paved the way for following World War II, and there are many ways that the United States can support the Court without becoming formally becoming a party.

Having announced that she is considering an investigation into alleged torture by U.S. military and intelligence personnel in Afghanistan, the ICC prosecutor may be headed for a confrontation with the Trump administration. However, under the principle of complementarity, the Court will not prosecute cases where the relevant country has taken necessary steps to investigate and punish war crimes. The Trump administration should continue the current U.S. policy of positive engagement with the Court, which has enabled the United States to participate as an “observer” in the ICC’s Assembly of States Parties to ensure U.S. interests are met. The United States could also continue to offer support for specific prosecutions, on a case-by-case basis--for example through cooperation on witness protection--and could offer expertise and logistical assistance in collection of evidence or in efforts to apprehend ICC fugitives. The United States took similar steps to support the International Criminal Tribunal for the Former Yugoslavia (ICTY), such as by providing the ICTY Prosecutor with aerial images showing the construction of mass graves at Srebrenica.