“Seeking to intimidate investigators and punish prosecutors perverts the purpose and undermines the legitimacy of sanctions,” they wrote.
The statement, which comes amid news that Russia offered the Taliban bounties to kill coalition troops in Afghanistan, was signed by former ambassadors, assistant secretaries of state for human rights, prosecutors and judges at war crimes tribunals held in other countries.
Among the signatories is Ben Ferencz, the last surviving U.S. prosecutor of Nazis at Nuremberg. Now 100, Ferencz was the lead prosecutor in the Einsatzgruppen case, which involved roving killing squads during World War II.
Although successive U.S. administrations have considered the ICC an attack on U.S. sovereignty, the dispute over the court has come to a head in the two years since it announced an inquiry into allegations of crimes against humanity by U.S. forces in Afghanistan in 2003 an 2004 and at secret CIA “black sites,” interrogation facilities in Lithuania, Poland and Romania.
Last year, Secretary of State Mike Pompeo revoked the visa of the court’s chief prosecutor, Fatou Bensouda, when she announced plans to pursue investigations of what happened, and threatened to revoke visas for other court officials investigating the actions of U.S. citizens.
An ICC appeals panel approved the investigation on June 5. Less than a week later, Trump signed an executive order authorizing the sanctions, and Pompeo signaled that a sustained U.S. campaign against the court would begin in coming weeks.
“We cannot, we will not stand by as our people are threatened by a kangaroo court,” Pompeo said, standing at a State Department podium alongside Attorney General William P. Barr, Defense Secretary Mark T. Esper and national security adviser Robert O’Brien.
The ICC in the Netherlands has been controversial since it was created by the Rome Statute of 1998. Although the Clinton administration favored the treaty, it has never been submitted to the Senate for ratification. So the United States has never joined the 123 countries, including many democracies and U.S. allies, in recognizing its jurisdiction over atrocities committed during wartime.
The ICC steps in only when a nation’s government is deemed unable or unwilling to prosecute its own citizens. U.S. officials argue that they can and have charged Americans for crimes allegedly committed in Afghanistan, the United States’ longest war.
“When our own people do wrong, we lawfully punish those individuals, as rare as they are, who tarnish the reputation of our great U.S. military and our intelligence services,” Pompeo said.
But critics have said that only lower-level personnel have been tried — not the officials who ordered or oversaw potential crimes. Another source of criticism is that the only prosecutions have been for atrocities committed in African countries.
Some of the signatories said they fear the order is so broad that it could lead to sanctions against U.S. lawyers who have assisted the ICC and Americans who work on its staff.
“It’s just wrong to go after the people who investigate atrocities,” said signatory Doug Cassel, emeritus professor at Notre Dame Law School. “You should go after the people who commit them.”
Mark Zaid, a national security lawyer who also signed the statement, said the U.S. refusal to cooperate with the ICC would diminish American credibility.
“This is an insult to everything the United States has stood for over the decades,” he said. “Because we were the ones who really led the world at times.”