“When the ICC’s chief prosecutor, Fatou Bensouda, made public her plans to bring a case to the court last year, the US revoked her visa as punishment.”

The International Criminal Court is set to begin investigating the US for the first time since it began operating in 2002. US Secretary of State Mike Pompeo pushed back on the notion that the court has the jurisdiction to try US citizens and, in particular, its soldiers. At the center of the investigation are allegations  that the US military committed war crimes and crimes against humanity in the war in Afghanistan.

‘Never’

Pompeo was interviewed on the “What the Hell Is Going On?” podcast, a production of American Enterprise Institute think tank, a conservative organization, POLITICO reported.

“You’ll see in the coming days a series of announcements not just from the State Department, [but] from all across the United States government that attempt to push back against what the ICC is up to,” Pompeo said.

The secretary pushed further, calling the court “corrupted” and declared the court will be unable to force American solderers to take the stand.

“We’ll never let that happen. We’re working along many fronts to prevent that from happening.”

‘Breathtaking Action’

The ICC green lit the investigation in March after a lower court decided not to escalate the case. Critics argued the lower court had caved to the Trump administration, The New York Times reported.

When the ICC’s chief prosecutor, Fatou Bensouda, made public her plans to bring a case to the court last year, the US revoked her visa as punishment.

At the time, Pompeo called it a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”

America, Pompeo noted, is not a member of the treaty that established the court, the Rome Statute. The US alongside Israel, Sudan, and Russia, is a signatory states but under the George W. Bush administration, announced it would not ratify the treaty.

The upcoming investigation is the exact scenario former President George W. Bush envisioned when he decided not to pursue ratification of the treaty, BBC reported. Although his predecessor, Bill Clinton, negotiated concessions to prevent frivolous lawsuits and signed the treaty, Bush and Republican leadership felt ratifying it would concede too much power and threaten Washington’s sovereignty. 

President Donald Trump took an even firmer stance, telling he UN General Assembly in 2018 that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”

Reasonable Basis for Investigation

Even so, Americans can still be tried under the court because Afghanistan is a member. However, the Afghan government has protested the move on the basis that its own mechanism for investigating war crimes, the New York Times reported.

The investigation into alleged war crimes committed by American servicemen in Afghanistan is only part of Bensouda’s case at the ICC, NPR reported. She is also looking into attacks by the Taliban and other militias that played a role in the war. When the court probes a conflict, it holds perpetrators and officials higher up the chain accountable. For the US, this means officials who led occupation efforts and even interrogation programs.

“There is reasonable basis to believe that, since May 2003, members of the US armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by US authorities,” the prosecution told the ICC.

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights, ended the hearing that saw the appeals chamber allow the investigation to proceed.

“In the case of U.S. torture, who bears responsibility has been well-documented,” Gallagher said.

The threat of retaliation by Washington is not the first time it has challenged the court. On May 15, Pompeo warned the ICC the Trump administration would “exact consequences” over a possible investigation into war crimes in Palestine. Although Israel is not a member of the court, Palestine has ratified it, making crimes committed there open to investigation, Human Rights Watch reported.