Legal Implications of the International Criminal Court's Decision to Investigate Americans

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In 2017, the prosecutor for the International Criminal Court (ICC) announced her formal request to open an investigation into war crimes and crimes against humanity allegedly committed by U.S. troops in Afghanistan. The ICC Pre-Trial Chamber denied the request, but after the prosecutor appealed, on March 5, 2020, the ICC Appeals Chamber authorized her to proceed with the investigation. This means that, in the near future, the ICC could issue warrants seeking the arrest of current and former U.S. officials, government employees, and military personnel—despite the fact that the U.S. has not ratified the Rome Statute of the ICC, has already investigated the alleged crimes, and rejects the ICC’s claims of jurisdiction over U.S. persons and actions. What are the ICC's authorities under international law; is the ICC on solid ground? Will this development lead the U.S. to take new steps to protect Americans? 

Featuring: 

Brett Schaefer, Jay Kingham Fellow in International Regulatory Affairs, Margaret Thatcher Center for Freedom, The Heritage Foundation

Charles "Cully" Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation

 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Legal Implications of the International Criminal Court’s Decision to Investigate Americans.” My name is Greg Walsh, and I am the Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Mr. Brett Schaefer, who is the Jay Kingham Fellow in International Regulatory Affairs at Heritage’s Margaret Thatcher Center for Freedom. He joined The Heritage Foundation in 1995 as was named the Kingham fellow in September of 1996. He worked at the Pentagon as an assistant for international criminal court policy from March 2003 to March 2004. Schaefer’s writing and analysis include contributions to rankings of individual nations in the annual Index of Economic Freedom, published by Heritage and The Wall Street Journal.

 

      We also have Mr. Charles “Cully” Stimson, who is the Senior Legal Fellow and Manager of the National Security Law program at The Heritage Foundation, where he has been since 2007. Prior to joining Heritage, Cully served as Deputy Assistant Secretary of Defense for Detainee Affairs during the George W. Bush administration where he was responsible for global DOD detention policy, including in Iraq, Afghanistan, and Guantanamo Bay. In May 2006, Cully served on U.S. delegation presenting the U.S. Second Periodic Report on the U.S. compliance with the Convention Against Torture, or CAT. At DOD, Cully chaired the Defense Senior Leadership Oversight Committee which implemented all 492 recommendations from the 12 major DOD detainee investigations.

 

      After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. Mr. Schaefer, the floor is yours.

 

Brett Schaefer:  Thanks for having us on today. It’s really a pleasure to be here. I think I’m going to start today with a general overview of the International Criminal Court, followed by a summary of the evolving U.S. relationship with the ICC, and then conclude with a brief timeline of the Afghanistan investigation and the U.S. response.

 

      So to begin, the International Criminal Court was created by the Rome Statute of the International Criminal Court, which was finalized in July, 1998, to investigate, prosecute, and try individuals for four specific crimes: genocide, or the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group; war crimes or grave violations of international law, including torture and deliberate attacks on civilians; crimes against humanity, or large-scale crimes against civilian populations; and the crime of aggression or the use or threat of armed force by state against the territorial integrity, sovereignty, or political independence of another state. The last crime, the crime of aggression, is the most recent crime, and was undefined in the original Rome Statute, and later adopted at the Kampala Conference in 2010, and implemented, finally, or I guess activated, in July 2018.

 

      The Rome Statute itself entered into force in July 2002, and the ICC was officially established at that point. Under the Rome Statute, the court has jurisdiction under three circumstances: first, if a country refers a situation within its own territory to the court, especially if it’s a state party where the court would have automatic jurisdiction; second, if the U.N. Security Council refers a situation to the court, and that’s happened twice, Darfur in 2005 and Libya in 2011; and third, if the prosecutor launches an investigation in proprio motu, or on her own initiative, and that happens when the prosecutor determines that crimes have been committed within the jurisdiction of the court, even if a government or the Security Council fails to refer the situation to the ICC.

 

      The court also claims jurisdiction over individuals from nonmember states if the alleged offenses took place on a member state’s territory, if the nonmember state accepts the court’s jurisdiction, or if the Security Council refers the situation to the court. There are currently 122 member states of the ICC plus the state of Palestine. Of these, 33 are in Africa, 18 are in the Asia-Pacific, 18 from Eastern Europe, 20 from Latin America, and 25 from Western Europe and North America.

 

      Two states, Burundi and the Philippines, have withdrawn from the Rome Statute after ratifying the document. And both of those states withdrew after the court announced preliminary investigations involving crimes in their territory.

 

      The United States, China, Russia, and India are not ICC parties, thus significant military and economic parties have declined to recognize the authority of the ICC. In total, states representing more than half the world’s population have chosen not to join the court, so it is far from a universal instrument of justice in the crimes under its jurisdiction.

 

      The Assembly of States Parties, which is the member states of the ICC of the Rome Statute, are empowered to elect the court’s 18 judges and the prosecutor. Each judge must be from a different member country, and geographical and gender balance must be taken into account. The judges and prosecutors are elected to nonrenewable nine-year terms.

 

      Currently, the Office of the Prosecutor is investigating 13 situations, Uganda, the Democratic Republic of Congo, the Central African Republic, Sudan, Kenya, Libya, Côte d’Ivoire, Mali, George, Burundi, Bangladesh, and Burma, and Afghanistan. There are also eight preliminary investigations in Colombia, Guinea, Iraq, Nigeria, Palestine, the Philippines, Ukraine, and Venezuela.

 

      Since 2002, 27 cases have been brought to the ICC. It’s issued 37 arrest warrants, 16 warrants have been implemented, 15 suspects remain at large, and 3 warrants were withdrawn following the death of the subjects. In other words, more warrants have been withdrawn or never executed than have been successfully implemented by the court. All told, the ICC trials have resulted in only eight convictions and four acquittals.

 

      The ICC currently has a staff of about 900 people and an annual budget of $160 million. Total expenditures since 2002 are roughly $2 billion. That’s roughly a quarter of a billion dollars per conviction.

 

      So I’m going to go ahead and talk about the history of the U.S. in the ICC now. First of all, the U.S. has long been a supporter of accountability and international justice, and it was deeply involved in negotiations to create the ICC in the 1990s. Ultimately, however, the U.S. opposed the final version of the Rome Statute in 1998 because of its claims of jurisdiction over nonparty states, its failure to respect the role of the Security Council in international peace and justice in other matters. Other countries disagreed, however, and they approved the Rome Statute over U.S. opposition by a vote of 120 to 7, and there were also 21 abstentions.

 

      In December 2000 on the last day that it was open for signature, President Clinton authorized the U.S. to sign the Rome Statute in order to facilitate U.S. efforts to address U.S. concerns to try and get changes to either the statute or to the rules of procedure for the court to alleviate U.S. concerns, but he emphasized that the U.S. still had, quote, “concerns about significant flaws in the treaty,” unquote. Moreover, President Clinton did not submit the Rome Statute for advice and consent to the Senate, and he recommend that his successor also not do so because of the significant flaws.

     

      The Bush administration tried to secure changes to address U.S. concerns in his first year and a half in office but failed to do so. With the entry into force of the Rome Statute imminent, the U.S. decided it needed to insulate itself from the court and sent a letter to un-sign the Rome Statue in May 2002. And that letter said, and I’ll quote it here, “The United States does not intend to become a party to the Rome Statute and therefore has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party expressed in this letter be reflected in the depository status list relating to this treaty.”

 

      After this, the United States took additional steps to protect U.S. persons from the ICC. These included entering into over 100 Article 98 agreements, and those agreements were between the United States and the other county in which both or one party, depending on the situation -- sometimes the other party may be a member state of the ICC and saw their obligations otherwise, but in every respect, the U.S. -- the other country agreed to not surrender, extradite, or transfer U.S. persons to the ICC or third countries for that purpose without U.S. consent.

 

      The Senate also -- I’m sorry, the U.S. Congress also passed what’s called the American Service-Members’ Protection Act, or ASPA. And that legislation restricts U.S. interaction with and support of the ICC and required the U.S. government to cut off financial assistance to ICC members that did not sign Article 98 agreements and authorized the President to use, quote, “all means necessary,” unquote, to free Americans detained by the ICC.

 

      This has come to be ridiculed more recently, I guess, over the past decade or so as the Hague Invasion Act, but I think it’s important to note that ASPA passed overwhelmingly. In the Senate, it passed 71 to 22 with support from Senators Biden, Clinton, Kerry, and Schumer. So it was hardly a partisan vote in the U.S. Senate, and it enjoyed significant bipartisan support in both chambers.

 

      The aid restrictions were removed in 2008 by amendment, but the other provisions remain in statute. Later, in the beginning of its second term, the Bush administration started moderating its policy toward the ICC. For instance, it decided not to veto a Security Council resolution referring the situation in Darfur to the ICC. It was also signaling some interest in supporting its efforts to arrest individuals in certain situations later on, for instance, the Lord’s Resistance Army, which is a group that has committed atrocities in Central Africa.

 

      The Obama administration was much more supportive of the ICC in its rhetoric and its actions, including active participation in ICC meetings and supporting a Security Council referral in the situation in Libya to the court, and also turning two individuals that it had in its custody over to the ICC for crimes that the court was interested in prosecuting. However, it’s important to note that the Obama administration did not resign the Rome Statue or seek its ratification, and it has maintained -- or it did maintain the Article 98 agreements with other countries.

 

      The relationship under the Trump administration has been strained right from the beginning for obvious reasons. The first Assembly of States Parties that the U.S. had the opportunity to participate in under the Trump administration was in December of 2017, and that was basically weeks after the prosecutor announced her intention to seek a formal investigation into alleged crimes committed in Afghanistan, including potentially those involving U.S. nationals, officials, and service members.

 

      So let me go ahead and get into the timeline of the Afghanistan investigation now. Afghanistan is a state party to the ICC and ratified the Rome Statue in February 2003. The prosecutor publicly announced a preliminary examination into alleged war crimes and crimes against humanity committed in Afghanistan in 2007, although the preliminary examination had begun actually a year earlier than that and was based on complaints received for a number of years prior to that announcement.

 

      Since Afghanistan is a party to the Rome Statute, the ICC claims authority to investigate all parties to the conflict, including the U.S. The prosecutor completed her preliminary examination in November 2017 and requested authorization from the ICC Pre-Trial Chamber — it’s one of the bodies within the ICC — to initiate an investigation. This was necessary because this request was done under the prosecutor’s proprio motu authority since the government of Afghanistan did not request an investigation into the matter and the Security Council did not refer the situation to the court.

 

      The Pre-Trial Chamber rejected the prosecutor’s request and declined to authorize an investigation in April 2019. The Pre-Trial Chamber determined that the investigation would not be, quote, “in the interest of justice,” unquote, for several reasons, including the significant time, more than a decade, since the preliminary examination had begun and the actual decision to request a formal investigation, and also because there was a significant confidence on the part of the Pre-Trial Chamber that there would not be cooperation forthcoming either from the United States, the government of Afghanistan, or the Taliban in respect to the investigation of these crimes.

 

      The prosecutor appealed, and in March 2020, the Appeals Chamber overruled the decision of the Pre-Trial Chamber. As it stands, the prosecutor is now authorized to investigate the crimes alleged to have been committed in the territory of Afghanistan since May 2003, which is when Afghanistan’s ratification of the Rome Statute went into force.

 

      This investigation will include, and I’ll quote here, “war crimes by members of the United States Armed Forces on the territory of Afghanistan and by members of the U.S. Central Intelligence Agency in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period from 2003 to 2004.” The prosecutor’s original request indicated that there was a reasonable basis to believe that U.S. armed forces committed 54 instances of alleged crimes and an additional 24 alleged instances of crimes committed by CIA personnel. And a majority of those abuses occurred in 2003 and 2004, according to her.

 

      The prosecutor was just recently quoted as saying, quote, “There is a reasonable basis to believe that since May 2003, members of the U.S. 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 U.S. authorities.”

 

      The U.S. response to the announcement of a formal investigation has been what I would characterize as aggressively dismissive. Following the prosecutor’s original request, the U.S. sent a letter to the Assembly of States Parties rejecting, quote, “any assertion of ICC jurisdiction over nationals and states that are not parties to the Rome Statute, absent a U.N. Security Council referral or the consent of that state.”

 

      The U.S. rejection was based on two broad arguments. First was a defense of sovereignty. And I’ll quote some of the letter here which says that “a fundamental principle of international law is that a treaty is binding only its parties, and it does not create obligations for nonparties without their consent. The U.S. respects the decision of those nations that have chosen to join the ICC, and in turn, we expect that our decision not to join and not to place our citizens under the court’s jurisdiction will be respected.”

 

      And the second is on complementarity, which is a principle embodied in the Rome Statute itself. In the Rome Statute, the court is not supposed to investigate crimes where the governing authority, the state, the government, has proven itself to be willing and able to investigate those crimes. And the U.S. has argued that it has indeed investigated these matters numerous times and in hundreds of different instances. And under the principle of complementarity, the ICC should be precluded from investigating U.S. nationals in respect to those crimes where it has already shown a willingness and an ableness to investigate and to hold those responsible or found guilty to account.

 

      In 2018, then National Security Advisor John Bolton stated, quote, “We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” He put a nice, sharp point on it. And essentially, the United States said if you leave our business to ourselves, or if you don’t involve yourself in U.S. business, we will be perfectly happy to ignore your existence altogether. But he did warn that if the ICC, quote, “comes after us, Israel, or other U.S. allies, it will take additional steps.”

 

      In 2019, the U.S. did take one additional step by revoking the visa of the ICC prosecutor when she wanted to come to the United States, but it hasn’t really taken any further steps prior to the announcement by the ICC appeals chamber in March of this year, which overturned the Pre-trial Chamber decision and allowed the investigation to proceed. Secretary of State Mike Pompeo condemned that quite strongly. I think it’s worth reading some of this here.

 

      He says, quote, “This is a truly breathtaking action by an unaccountable political institution masquerading as a legal body. The United States is not a party to the ICC, and we will take all necessary measures to protect our citizens from this renegade so-called court. This is yet another reminder of what happens when multilateral bodies lack oversight and responsible leadership, and become instead a vehicle for political vendettas. The ICC has today stumbled into a sorry affirmation of every denunciation made by its harshest critics over the past three decades.”

 

      So I think it’s fair to say that the U.S. is not going to cooperate with the ICC investigation into matters involving U.S. persons in Afghanistan. And I would suspect that any kind of future cooperation between the court, even on other matters where the U.S. does have some significant concerns and would like to see justice realized, have likely been sacrificed by the court’s decision to pursue Americans in this matter.

 

      So now you know the history and the current state of affairs in terms of the U.S. and its relationship with the ICC. And I’ll go ahead and turn it over to Cully to describe the scope and depth of the U.S. investigations into allegations of crimes in Afghanistan and why the ICC is wrong to conclude that the U.S. is unwilling or unable to investigate those crimes. Thank you very much.

 

Charles “Cully” Stimson:  Well, thank you, Brett, for that. And thank you to The Federalist Society for hosting this outstanding teleforum.

 

      The ICC has no basis whatsoever, in my opinion, to launch an investigation, much less prosecute Americans for any alleged abuse of detainees in Afghanistan or anywhere else, for that matter. And as Brett laid out in his excellent presentation, that’s not just my opinion or his opinion. That’s the opinion of several administrations, including Republican and Democrat administrations.

 

      And let me pick up where he left off, and this is the business of complementarity. We have already, as you will see, thoroughly investigated, as we are required to, each and every allegation of detainee abuse going back since almost the beginning of the time we entered Afghanistan after 9/11. So my job is to show you the extent of our law, policies, and practices as they relate to alleged detainee abuse and what our government has done for well over a decade to investigate and hold to account every single allegation of abuse.

 

      And by the way, what I’m about to tell you comes from several government sources, official declarations, both from the Bush and Obama administrations, and in particular, the Second and Third Periodic Reports to the U.N. Committee Against Torture, so our official government responses to our compliance with the CAT. And as Greg told you, I had the honor of leading the DOD delegation as part of the U.S. team back in May of 2006 in Geneva when we presented the Second Periodic Report. So you can go to those websites on the State Department website and read some of this.

 

      Let me put this into context. Since 9/11, the United States has held approximately 103,000 detainees in custody. About 75,000 plus were held several times, were let out and got back into custody in Iraq. Over 25,000 were held in Afghanistan, and a total of 779 detainees were held at Guantanamo. Today, they have no detainees in Iraq or Afghanistan and less than 40 at Gitmo. So this investigation will be looking at things that happened, or didn’t happen but people say they happened, almost a decade or more ago. So ask yourself, can you really conduct a thorough investigation of something that happened a decade or more ago in a war zone? Very difficult to do.

 

      As a matter of written policy, let me first turn to the policies and the laws that were put in place early and why they were put in place, and how they continued to operate, and why not only are we willing and able, but we are far more able and willing to investigate this and hold people to account than any outside organization. The DOD investigates all allegations of abuse or maltreatment, and if found credible, takes appropriate actions to hold them accountable.

 

      Let’s start with the Detainee Treatment Act of 2005. That prohibits cruel and inhuman degrading treatment or punishment as that term is defined by the U.S. obligations under Article 16 of the Convention Against Torture and provides for uniform interrogation rules for persons in the custody of DOD or under its effective control or under detention at a DOD facility. That includes in Afghanistan.

 

      And as you remember, back in 2006, the U.S., while I was as DOD, finally published and released the new Army Field Manual on Interrogations. And only the 19 interrogation techniques listed in that Army field manual on interrogation can be used on DOD detainees at the time, and now all detainees, because of an Obama administration executive order.

 

      Under the DOD directive, 2311.01E, written -- actually, it’s 2310.01E, published under my tenure, quote, “All military and U.S. civilian employees, contractor personnel, and subcontractors assigned to or accompanying DOD components shall report reportable incidents through their chain of command,” unquote. And so that not only covers DOD active duty or reservists who are called into active duty, but it also covers contractors. The contracts that we give contractors require employees to report reportable incidents to the commander of the unit they are accompanying or the installation to which they are assigned or to the combatant commander.

 

      And a reportable incident is defined as, quote, “a possible suspected or alleged violation of the law of war for which there is credible information or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict.” And it has been DOD policy for a long time that, quote, “all reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual are reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action,” unquote.

 

      In my opinion, the ICC is acting as if the U.S. hasn’t investigated anything since 9/11, or those investigations were bogus. But in fact, the DOD has conducted thousands of investigations since 2001 and has prosecuted or disciplined hundreds of service members for misconduct, including mistreatment of detainees.

 

      For example, more than 70 investigations concerning allegations of detainee abuse by military personnel in Afghanistan conducted by DOD resulted in trials by court-martial. Those were public. Close to 200 investigations of detainee abuse resulted in either non-judicial punishment, that’s administrative punishment of the military justice system, or adverse administrative action, which means we fired them. And many more were investigated and resulted in action at a lower level, which means they were admonished.

 

      Another directive which is in place and has been in place for a long time applies to interrogations because some of the allegations that the ICC thinks are unresolved deal with abuse that allegedly happened during interrogations. DOD directive 3115.09, it’s called the DOD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning, states that, quote, “Only DOD interrogators that are trained and certified in accordance with the standards may conduct DOD intelligence interrogations. DOD intelligence interrogations shall be conducted only by personnel properly trained and certified to DOD standards,” unquote.

 

      Congress has also barred civilian contractors from performing interrogation functions and has required private translators involved in interrogation operations to undergo substantial training and to be subject to substantial oversight. And that same DOD directive, in fact, Section 1038, prohibits contractor personnel from interrogating enemy prisoners of war, civilian attorneys — that would be Iraq — retained personnel or other detainees or any other kind of individual who is in the custody or effective control of DOD or otherwise under detention in a DOD facility in connection with hostilities unless the Secretary of Defense determines that a waiver to this prohibition is vital to the national security interests of the United States.

 

      Now, that and that alone is sufficient for the ICC to move on to something real and investigations that need to take place in countries where they don’t have the ability or willingness to investigate. We have brought, however, several cases against contractors under the Military Extraterritorial Jurisdiction Act, or MEJA, and the Special Maritime and Territorial Jurisdiction act, SMTJ. And convictions conclude names such as David Pizarro and Don Ayala.

 

      Furthermore, in my opinion, the ICC tends to ignore or conveniently forgets about the critical role of the International Committee of the Red Cross, ICRC, has and continues to play in our detainee operations. The United States maintains a close, confidential working relationship with the ICRC. They have access to DOD theater internment detention facilities, including at Guantanamo, Iraq, and Afghanistan, when we had detainees there. And they met privately with detainees, one on one. DOD accounts for detainees under its control fully and provides notice to the ICRC as soon as possible by directive, normally within 14 days of capture.

 

      This is the important feedback loop that the ICC tends to ignore or forget. The ICRC transmits its confidential communications to senior U.S. government officials, including those in DOD and military commanders in Iraq, Afghanistan, and Gitmo. DOD had established procedures to ensure that ICRC communications were appropriately routed to senior leadership and acted upon in a timely manner. And while the dialogue with the ICRC is obviously confidential, and it needs to be, the United States in every administration took seriously the matters the ICRC raised and greatly valued the historic and ongoing relationship between the government and the ICRC.

 

      And I can tell you personally that the ICRC during my tenure and since then has been invaluable to giving us feedback about what detainees are saying or alleging. Had we listened to them, in my opinion, about the problems at the Abu Ghraib prison before the abuse took place, the whole fiasco may not have happened. Their professional insights and recommendations which continue to this day keep us on our toes and are much appreciated, and in my opinion, totally ignored by the ICC.

 

      At the international level, the U.S. government actively engaged in the development of the Montreux Document on pertinent international legal obligations and good practices for states related to operations of private military and security companies during armed conflict in the international code for conduct of privacy security service providers.

 

      Let’s fast-forward to the Obama administration. In January of his first year, he issued Executive Orders 13491 and 13492, which directed that individuals detained in any armed conflict shall in all circumstances be treated humanely and instructs that such individuals shall not be subjected to any interrogation technique or approach or any treatment related to interrogation that’s not authorized in the Army field manual. And he of course -- one of those same executive orders banned waterboarding, which hadn’t taken place for years, and only on three people, and those were in CIA custody.

 

      In August of 2009, the then Attorney General ordered a preliminary review into whether federal laws were violated in connection with interrogation of specific detainees at oversees locations. And those investigations happened and were quite thorough. For example, on June 30, 2011 — this is during the Obama administration — DOJ announced that it was opening a full criminal investigation into the deaths of two individuals in CIA custody overseas, and that it had conducted and concluded that further investigation into the other cases examined was not warranted. And the two criminal investigations were closed in 2012 after DOJ determined that admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.

 

      And in March 2011, the U.S. confirmed its support for additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva conventions, which contained fundamental humane treatment protections for individuals detained in international and non-international armed conflicts.

 

      U.S. policy requires ongoing training of personnel in these areas. The ICC conveniently forgets or ignores that. DOD conducts and did at the time conduct comprehensive training on treatment and interrogation of detainees. Let me remind you all that after Abu Ghraib happened in 2003, the DOD launched 12 major investigations across all the government, including all of DOD, into every aspect of detainee treatment, including interrogations. And it came up with a combined 492 recommendations. And we implemented every single one of those 492 recommendations. A lot of that required ongoing training and ongoing accountability.

 

      And speaking of Abu Ghraib, the main finding of that investigation, which is also commonly referred to as the Jones-Fay Report, was that a small group of individuals, acting in contravention of U.S. law and DOD policy, were responsible for perpetrating the acts of abuse. Specifically, in an interview after the report’s release, General Kern told reporters, quote, “We found that the pictures you have seen, as revolting as they are, were not the result of any doctrine, training, or policy failures but violations of the law and misconduct,” unquote.

 

      The U.S. had an has had multiple venues where we’ve held perpetrators accountable, which the ICC conveniently ignores or downplays. Not only can we prosecute detainee abusers in federal district court, we did, it is also a violation of the Uniform Code of Military Justice, or the UCMJ, to engage in cruelty and maltreatment. Further, under the UCMJ, individuals may be charged, and were, with acts of assault, maiming, rape, carnal knowledge, manslaughter, murder, and unlawful detention, all of which we did. Under the UCMJ, individuals can also be charged with violations of U.S. federal criminal statutes, including the extraterritorial criminal torture statue, which is found at 18 USC Section 2340.

 

      As of May 2006, and this would include the timeframe which the ICC is focusing on, there were a total of 120 detainee deaths under DOD control in Afghanistan and Iraq. And there, of course, as we know, we had some deaths of Guantanamo detainees, which is outside the scope of the ICC investigation. And those deaths were either suicides or natural causes. In only 29 of those 120 deaths was abuse or another violation of law or policy suspected. And in those cases, those violations were properly investigated and prosecuted where required.

 

      So when taken together, in my opinion, the law, policies, directives, and executive orders by the U.S. government show that the U.S. has a robust system in place to investigate any and all allegations of detainee abuse, has thoroughly investigated every allegation, many of which had no merit, and held to account those who did abuse detainees, and they did. And they did it either through federal military or courts-martial and other administrative measures.

 

      Let me just make one other comment before I turn it over to Brett. He may have a question or two for me, or I may have one for him. Let’s not also forget the DOD IG, Inspector General, the CIA IG, and then the Senate Intelligence Committee under the leadership of then Chairwoman Senator Dianne Feinstein did a thorough review of the CIA’s program, of which we’ve seen large portions of that released to the public.

 

      So to suggest or hint or much less try to investigate these cases that were either unresolved or not investigated, it’s just silly. There is nothing to investigate because it’s been looked at, it’s been investigated six ways to Sunday, and the ICC has no business looking into our stuff when we’re not a party to the Rome Statute. And we’ve also done a more than thorough investigation of all these allegations. So with that, I’ll turn it over to Brett or our host.

 

Greg Walsh:  Let’s give each speaker a chance to respond to what one another said. So Mr. Schaefer, do you have anything to comment on Cully’s portion?

 

Brett Schaefer:  Well, yes. One thing is a just want to emphasize what he’s -- the point he made at the very end there, which is that not only was this investigated through the normal procedures through the U.S. military, normal procedures through the Department of Defense, and normal procedures through the U.S. justice system, but it was also subject to Inspector General reports and examination. It was subject to bipartisan investigation. It was subject to independent investigation put into place after the allegations came to light. And so the idea that the United States was not willing to allow thorough vetting of all of these different allegations is simply nonsense.

 

      And when you go through the prosecutor’s report, she acknowledges that a number of individuals, as Cully laid out in great detail, have been held to account, either jailed or fired or held -- or punished in some other way. But what she seems to be fixated on is that the people that she thinks are responsible for this, i.e., higher level individuals within the U.S. government, either elected officials or appointees somewhere in the chain of command, those individuals haven’t been held to account, at least not sufficiently for her to be satisfied.

 

      And so this is really not an instance where the United States has proven itself unwilling or unable to hold individuals to account, it’s just that they haven’t satisfied her particular desires in terms of who should be held accountable for this. And that is, of course, not the standard that is set forward in the Rome Statute. That’s something else. That is an additional standard that she is applying to this particular case.

 

      And so I’ll just go ahead and leave it at that and just say this is a spurious investigation and it hinges -- in essence, she’s making these accusations and demanding that the U.S. prove itself to be innocent in these cases, whereas -- because she cannot actually come up with the evidence to make the case herself. And in fact, if you look at the documentation that she made asking for a formal investigation, almost everything that she alleges is based on the U.S. documentation that has been made public.

 

Greg Walsh:  Cully, do you have anything to add, or should we go to audience questions?

 

Charles “Cully” Stimson:  Yeah, let me just quickly pop in here with one other comment. Perhaps the honorable prosecutor doesn’t appreciate the partisan vitriol which took place at the end of the Bush administration at the beginning of the Obama administration and the degree to which the Obama administration really sought to be the un-Bush administration in terms of detainee policy.

 

      Remember, Obama signed the executive order ordering the closing of Guantanamo the first week in office. It was his first major action related to detainee issues. He released, much to the chagrin of many of the Bush team, the CIA’s then classified interrogation techniques. They gave several really good speeches, one of them at The Heritage Foundation, on the way they approached the law of war, the law of armed conflict and detainee policy.

 

      And so if any administration, anybody other than the Bush administration was going to come in and clean house and get things in order, it was the Obama administration. And yet, many of the policies and practices that were in place in the second half of the Bush administration when Obama took over remained in place, like military commissions, like, obviously, military detention of unlawful enemy combatants. They changed the name to something different, but it’s the same dif. And so the general prosecutor, I think, misses the fact that if there was ever going to be a thorough legal and policy vetting, and there was, that would have held people to account, it would have happened in the Obama administration.

 

      To put a finer point on it, the CIA had just over 100 detainees over their entire program. Remember, DOD had over 103,000. And of those 100 or so CIA detainees, and I know this from reading public documents, no other way, about a third of them were subjected to enhanced interrogation techniques, and three of them were waterboarded. And one of the men who was waterboarding, there were actually video tapes of him being waterboarded. And then the video tapes were destroyed when the investigation started when the Obama team came in.

 

      And so the Obama team wanted to investigate that, and they appointed none other than U.S. Attorney Durham up in Connecticut, the same Durham that’s doing the Russia investigation, to find out whether somebody should be held criminally accountable for destroying the tapes, in other words, destroying evidence. And he concluded after a very thorough investigation that no, there was no crime committed and no one should be held criminally accountable for that.

 

      So these allegations and the -- well, let me just finish with this. Any abuse of any detainee is wrong, period. And when I came into office back in late 2005, early 2006, it was very clear that my predecessor had done a good job, but we had a lot more work to do to get the U.S.’s reputation back because there were detainees who had been abused by U.S. personnel. So we worked very hard to hold every single person accountable who engaged in detainee abuse and look at every allegation six ways to Sunday to make sure if there was something there there that they’d be held accountable. And the Obama administration did the same. And so there is no there there left for the ICC. And I’ll leave it at that.

 

Greg Walsh:  We’ll now go to the first question.

 

Larry White:  Hello. My name is Larry White. I live in Ankara, Turkey. I want to thank you very much for the presentation. Just by way of background, I’m a retired Air Force Combat Aviator, and I actually teach law of armed conflict for the Turkish military in their NATO courses here in Ankara.

 

      My question is really kind of twofold. What is going to happen to these people? What kinds of protections do we need to see, and what kind of view does the U.S. take with regards to the ability to make our views known and prevent the overreach? When I talk about this, my personal view is that the ICC fails this way in terms of failing to respect the sovereignty of nations. And I see this as a prime example of it. Thank you very much.

 

Brett Schaefer:  Cully, I’m happy to start off here.

 

Charles “Cully” Stimson:  Yeah, I think that’s more in your lane, Brett. Go ahead.

 

Brett Schaefer:  Okay. First of all, in terms of sovereignty, it’s absolutely right. One of the fundamental principles of international law is that countries assume responsibility or obligations based off of their willingness to do so, so they actually ratify a treaty in order to be bound by it. And for something to become an international norm or an international standard in this area, there has to be extensive state practice and observance for a long time to assert some kind of customary international norm that is binding outside out of that kind of a context. And this certainly is not one of those things.

 

      The United States has specifically taken action to shield its persons from the jurisdiction of the ICC. We mentioned ASPA. We mentioned the Article 98 agreements. We mentioned the fact that it’s deliberately tried to shield itself from the jurisdiction of the court through its statements, through its actions, and by un-signing the Rome Statute itself. It tried to address those flaws in good faith, and it failed to do so, and therefore it separated itself from the court and took actions to protect itself. And therefore, this is really one of those things where it is in a deliberate infringement upon national sovereignty of the United States and other countries. And the United States should not put up with that because once it does so, it weakens that standard going forward.

 

      In terms of what’s going to happen, well, we really don’t know. We don’t know what the prosecutor is going to do in terms of its investigation of Americans. We don’t know even if any warrants are going to be issued for Americans. And until that happens, we don’t know the full scope of what potentially could happen.

 

      I do know that the Trump administration has said that they’re not going to cooperate with this investigation in any way. They’ve said that they’re going to restrict the visas and access to the United States of these officials. Secretary of State Pompeo said that they may take further action in terms of the families. I think that’s a little bit excessive, but it certainly illustrates how strongly this administration takes that commitment to protecting its people from these illegitimate claims of jurisdiction.

 

      And the other measures that -- what it means. Let’s say that a U.S. person does have a warrant issued against them. If they stay in the United States, there’s very little risk to them in terms of the reach of the court. However, if they do travel abroad, the potential exists. This is one of the reasons why the United States acted so strongly when — and Cully, you may even know this better than I do — when Belgium passed its universal jurisdiction statute, and I think it was the Department of Defense who said that we may not be able to have NATO there anymore. But you maybe can fill in that gap for me.

 

Charles “Cully” Stimson:  Yeah, I really cannot improve upon your answer, and I’m not familiar with the details of that. I’m only generally familiar with it.

 

Brett Schaefer:  Okay.

 

Greg Walsh:  Okay, let’s go to the next question.

 

Daniel Ogden:  Yes, this is Daniel Ogden from Waco, Texas. Thanks to you both again for a great discussion. Just a follow up on your last comment regarding the warrants. Maybe you’ve already answered this, but I’m just wondering what the legal status of these warrants would be, whether a court would be required to take some action to disallow them or how would all that work out? And also, of course, we have an election coming up. What do you think it might be if we have a change of administration, what their attitude might be towards the enforcement of these warrants or the actions ICC might take in the future? Thank you.

 

Charles “Cully” Stimson:  Well, Brett, let me pick up where you left off, and then you can jump in if you don’t mind me going first. First off, I think Brett’s comment, Mr. Ogden, about the real concern is whether U.S. military personnel or CIA or contractors leave the United States to travel, and then getting picked up or snared in an active warrant. And as I understand it, that’s always been the concern.

 

      And as you know, because if you’re not military — you sound like a military guy or an ex-military guy like me — when we have a in a country, we typically have a Status of Forces Agreement. And that SOFA, the Status of Forces Agreement, covers, among other things, whether or not we will exercise jurisdiction over a soldier, sailor, airman, or marine if they commit misconduct in that country. And so we routinely exercise primary jurisdiction over one of our soldiers, sailors, airmen, or marines, or by the way, civilian dependents who accompany them now if they commit misconduct because we trust our legal system to handle the situation thoroughly. There are rare occasions where we cede jurisdiction over to the host country because there’s such outrage about a person doing a thing to one of their nationals.

 

      But here, I don't think, at least from what I’ve seen, there’s going to be much concern if the administration changes hands and let’s say Vice President Biden becomes President Biden because as Brett mentioned earlier during his excellent presentation, there’s sort of bipartisan support to protect U.S. military personnel from the overreach by anybody, especially the ICC here. So with that, Brett, tell me what I got wrong or you can expand on my comments.

 

Brett Schaefer:  I don't think you got anything wrong. I do think it’s really interesting and somewhat sad to see how partisan politics have really entered into an area where there should be, I would hope, just universal support for protecting American servicemembers and protecting U.S. officials for their actions in defense of our country.

 

      And so when you look back to the American Service-Members’ Protection Act and you realize that Senator Kerry, Senator Biden, Senator Schumer, Senator Clinton, all of these very prominent Democratic party members voted in favor of the American Service-Members’ Protection Act, including the use of force to free Americans held by the ICC in The Hague, that indicates how far we’ve gone. I would hope that it doesn’t -- and it hasn’t gone so far as to weaken at least the desire to make sure that Americans are not subject to a court that the United States has never agreed to submit itself to.

 

Greg Walsh:  Thank you so much. Here is our next caller.

 

Gary:  Hey, this is Gary in New Hampshire. You guys answered most of my question in that anybody, servicemember or otherwise, traveling overseas is subject to arrest if they [inaudible 48:07] at the international court [inaudible 48:09] a warrant. So the other half of it would be under what power would they do that? In other words, [inaudible 48:17] sovereign ICC power, in other words, the signators [inaudible 48:23] or do they claim any type of --

 

Greg Walsh:  -- I’m sorry, caller, would you mind speaking up a little bit or moving closer to the microphone? We’re having a little bit of trouble hearing you.

 

Gary:  Sure, yeah. And the other half of that would be do they get their power from themselves, signators, for example, or do they claim any United Nations power, or even like the power to enforce a warrant? So could they, for example, go through the European Union to get that warrant, or some other agency, law enforcement or otherwise international, or is it just their own power from their own ICC signators?

 

Brett Schaefer:  I’ll go ahead and answer.

 

Charles “Cully” Stimson:  Brett, that’s in your lane.

 

Brett Schaefer: Yeah, I think so. I think so. So the ICC has no power in and of itself to arrest people, nor does it have any kind of police apparatus to go forth and actually arrest people. It depends entirely on the cooperation and support of other countries to both execute the warrants, seize the individual, turn them over to the court. And so in some ways, it is a paper tiger, but it’s a paper tiger that has some very ardent supporters. The European Union, particularly, is extraordinarily supportive of the ICC and the concept behind it and will try to enforce those warrants if they are issued.

 

      And so this does raise some significant concerns for the United States. It would be diplomatic uproar if, for instance, the ICC issued an arrest warrant for former Secretary of Defense Rumsfeld for his policy decisions in result of Afghanistan, and he was over there and he was arrested. Can you imagine the furor that would result from something along those lines? It would be a diplomatic row of huge proportions.

 

      So the court itself is putting, depending on its future decisions, its State Parties in very difficult circumstances. And you can see this even in a very practical way. For instance, the ICC issued an arrest warrant for Bashir, the former President of Sudan. And this is supposed to be executed by other ICC member states. He was traveling to some of those ICC member states in the African region, and those governments refused to execute the warrant, and instead let him visit and then leave again. And this has created a very big problem for the court because if the member states themselves are placing their diplomatic relations above execution of the treaty obligations, the obviously that devalues the stature of the court in significant ways.

 

Greg Walsh:  Caller 203, you are on the line. We have three or four callers in the queue.

 

Tom Willis:  Hi. This is Tom Willis. I’m in Rotterdam, The Netherlands. And I have two quick questions. One is what’s the official name of the case, so I follow it more closely? It’s just up the road. And the second main question is how did the ICC handwave away the complementarity standard without implicitly declaring that the U.S. legal system is illegitimate?

 

Brett Schaefer:  Well, the official name of the case is the Situation in the Islamic Republic of Afghanistan, and it is the case number is ICC-02/17. And you can go to the ICC website, www.icc-cpi.int, and you can find the situations and cases at the top of that webpage. So you can follow yourself and you can look through the documentation.

 

      And to answer your second question, I think that’s implicitly what they’re saying. They’re saying that the United States was insincere in its investigations and is putting the onus on the United States to prove its innocence, which is of course the reverse of a legal standard.

 

Charles “Cully” Stimson:  I would, Tom, recommend that you go back on the State Department website and type in Second Periodic Report -- Second U.S. Periodic Report to the U.N. Convention Against Torture. It would be Friday, May 5, and Monday, May 8, when we responded to the rapporteurs’ questions. And you can see the degree of hostility that the rapporteurs had against the U.S. delegation on Friday and how they were much assuaged by our answers on Monday, because we had the weekend to pull the answers together, and satisfied for the most part with our answers of all the actions that we had taken to date. This is May 8, 2006, regarding the allegations of abuse in 2003 and 2004 in Afghanistan.

 

      And I suspect but don’t know that the ICC prosecutors have read those and followed those closely and read all of our official documents on this. But you have to be willfully blind or just skeptical or not believe the United States if you think that the investigations were either toothless or not real because they were very much real. And we had every incentive not only in the Bush administration, the second half of the Bush administration, and during the eight years of the Obama administration to get to the bottom of every single allegation, not only because it was required under law and DOD directive, but because it was the right thing to do and we needed to be and continue to need to be in the good graces of the government of Afghanistan to work on a number of other sensitive operations.

 

      And this was a real sticking point in the U.S.-Afghan relationship. I mean, when we would meet with senior Afghan officials, they were -- more often than not that they would bring up allegations of abuse that they would hear through various of their own channels, and we would have to satisfy them that we had taken these allegations seriously and we’d tried to get to the bottom of them.

 

      So I think, to be a little blunt, I think that this is purely political. I don't think that there’s any there there from a legal angle. There’s no deficient investigation out there that I’m aware of, and it’s really unfortunate that they’re going down this road.

 

Greg Walsh:  Okay, let’s go to our next question. We have four callers in the queue.

 

Christopher Melling:  Hi, this is Christopher Melling. As another former aviator, but with the Marines and a current law student, Professor Mike Newton came to our school last year and talked about the crumbling U.N. charter regime and what the comments that were just made about the political nature of these charges and the timing of it is suspect right after the peace signing.

 

      But do either of you gentlemen want to comment further on the larger applications? Is this just another example of the U.N., the international organizations, are they truly on their deathbed? It is a way to revive or still find justice, or is it going to be -- is this what we’re going to see for criminal courts and other international organizations in the future? Thank you.

 

Charles “Cully” Stimson:  Brett, go ahead.

 

Brett Schaefer:  Okay, I’ll go ahead and take this, yeah. Well, to get back to your point, in terms of effectiveness, I mentioned before how the court in since 2002, so that’s 18 years, it’s had 27 cases brought before it, and it’s only had 8 convictions. And it spent a billion dollars. It’s got 900 employees. This is hardly a model of efficiency or effectiveness.

 

      And part of the problem is that while there’s plenty of countries out there that are perfectly willing to give lip service to the court, the willingness to support it robustly, both in action in terms of executing the warrants -- and I mentioned earlier that 15 subjects remain at large, including a former Head of State. Sudan may turn him over to the court now that he’s been deposed, but as when he was in power, other countries had the ability to arrest him and chose not to do so. In other cases, there are individuals who just haven’t been able to be found because of either elusiveness or inability of the governments involved to actually to do so or an unwillingness to do so.

 

      So there is a sense of lack of commitment in certain instances on the part of the member states of the ICC itself, and a critical weakness within the structure of the organization itself because it can’t execute the warrants. It depends on the cooperation of the member states. If they’re not willing to cooperate, then there’s not much that they can do.

 

      But there’s also another underlying issue here, which is the politicization of the court itself. If you look at the timeline in terms of situations under investigation or the announcement of preliminary examinations, early on you see a number of different cases in the African context, so Uganda, Democratic Republic of Congo, Darfur, Central African Republic, Kenya, etc. And these cases, many times they were referred to the court by the countries themselves, but nonetheless, there came to be a perspective that the court was Western justice for African nations. And a great deal of resentment was being ginned up in Africa about this. And if you look at the African Union, there was a nonbinding resolution saying that we should reconsider the regional cooperation with the court itself.

 

      After these resentments became a little bit more pointed, for instance, South Africa announced that it was going to withdraw from the court. So did Gambia. They reversed those decisions afterwards, and that followed on Burundi withdrawing and more recently, Philippines. This political pressure on the court, I think, is one of the reasons why you see a flurry of recent announcements of preliminary examinations or the decision to actually seek a formal investigation into Afghanistan.

 

      And that was to demonstrate to the African countries, which comprise the largest number of member states for the ICC, that it was willing to investigate cases outside of the African region. And so there’s a political motivation here to justify its existence to the largest number of its member states based on region.

 

      And so the short answer to your question — I just gave you a long one — is that yes, this is not a very effective international institution. It has demonstrated that it’s very expensive and not very good at getting results, and second, that it is subject to political pressures internally which undermine its stated mandate to be an independent vessel of judicial jurisprudence.

 

Charles “Cully” Stimson:  The only thing I would add, and I assume it’s Colonel Melling, is that Mike Newton -- Professor Newton’s a great friend, great professor at Vandy, has a tremendous amount of experience in this area, and so I think you’re probably very fortunate to have gone to a lecture by him.

 

Greg Walsh:  Area code, 248, you are on the line.

 

Kevin Connop (sp):  Hello. My name is Kevin Connop. I live in Birmingham, Michigan, and I think you’ve answered my question I was going to have, and that is obviously this is apparently not driven by any clear view of what the law is, and so it’s driven by politics. So one of the political harms you’ve told us is that it’s due to pressure from the African countries who are unhappy who think that they are the targets. Have they tried -- has this investigative body investigated China with respect to the Tibetans or the — I don’t know how to pronounce it — the Uyghurs?

 

Brett Schaefer:  Uyghurs.

 

Kevin Connop:  Uyghurs. I mean, that’s just one example that comes to mind. Or is this sort of like the World Health Organization where certain countries have predominant because they have their people salted throughout the organizations? I guess it’s the political side I’d like to hear more about unless you’ve already answered it with the African pressure on them.

 

Brett Schaefer:  The short answer to your question is no, they have not looked into any allegations of crime within the territory of China. And the reason for that is that China’s not a member state of the ICC. And so unless you are -- so I mentioned earlier that there are certain situations where the court can be activated, and the U.S. is being involved in this situation because Afghanistan is, in fact, an ICC member state.

 

      So those situations in terms of Tibet and the Uyghurs, they’re terrible, they’re tragic, and the Chinese government is absolutely responsible for those terrible things. But in terms of the ICC, there’s no real hook for them to become involved in that particular situation. One other opportunity to -- I’m sorry. The Security Council obviously could refer that situation to the ICC, but China does have a veto in the Security Council, so that’s not a practical option.

 

Greg Walsh:  Cully, do you want to add anything, or should we go to the final two callers?

 

Charles “Cully” Stimson:  No, let’s keep going.

 

Greg Walsh:  Caller from D.C., you are on the line.

 

Mary Ann McGrail:  Hi. Mary Ann McGrail, Washington, D.C. This is somewhat tangential, but I think -- first of all, thank you very much for a really interesting presentation. The Supreme Court has ruled three times on Guantanamo detainees. The Supreme Court has, I would say, a great deal more stature than the ICC internationally as a judicial body. Has the ICC or any judge on that bench alluded to, referred to, or in any way taken into account the Supreme Court’s decisions in this field?

 

Charles “Cully” Stimson:  Well, let me touch on the question and then turn it over to Brett. There’s actually four cases before the Supreme Court during the Bush administration -- actually thee and then four total. And we had a perfect record before the Court. We lost every case. And those decisions are, including Rasul, Hamdan, Hamdi, and then later, Boumediene, are wrapped into the analysis of the U.S.’s response to the Second and then Third Periodic Reports on the U.S. compliance with the Convention Against Torture. What I mentioned earlier, Ms. McGrail, is that I’m quite confident that the ICC prosecutor’s office has read our responses because they do follow what we way, and nonetheless moved out on this futile prosecution. So Brett, I’ll turn it over to you, with that.

 

Brett Schaefer:  The prosecutor made extensive use of public documentation in all sorts of different areas. And the frequent citation was the Senate Committee on Intelligence. Another one was DOD and CIA IG reports. I’m not sure how much reference she made to the Supreme Court in document. I can go back and look, but I’d have to take a look around before I could say definitively on that.

 

Greg Walsh:  Okay, let’s go to our last caller.

 

Caller 8:  Hi. Thanks for the presentation. Two questions. First, I know the U.S. isn’t a member of the ICC, but do we provide any funding or other ways to kind of throw our weight around, or is it just diplomatic means that we have? And second, you touched on motive. I was just curious about if you could expand on that. Is this a prosecutor trying to make a name for herself? I saw this initially came up in 2017. Is it driven in part, do you think, by Trump being President, or maybe just kind of a larger pushback on the nationalist trend across the word? Thanks.

 

Brett Schaefer:  The United States doesn’t provide any direct funding, and, in fact, the American Service-Members’ Protection Act prohibits direct funding of the court, but the U.S. has provided other support for the ICC. For instance, it’s provided intelligence sharing. It’s provided some other in-kind assistance to, for instance, help locate Joseph Kony, who is the leader of the Lord’s Resistance Army in Central Africa, who the United States has designated a terrorist group.

 

      And the United States has also, as I mentioned before, turned over two individuals who were in its custody to the ICC to fulfill some of the arrest warrants, and that was under the Obama administration. So it has provided some assistance, but it hasn’t provided direct funding in terms of direct contributions to the court, either through assessments or voluntary contributions other than those specific defined circumstances.

 

      But going forward, I assume that that cooperation has ground to a halt, and it won’t be continued because, obviously, the more the United States cooperates with the court, supports it, turns individuals over to the court, the more credibility we’re giving to the court itself. And with the court alleging crimes against U.S. servicemembers and against CIA personnel and perhaps other officials, then we don’t want to be doing that. And so I think the administration would be smart and it would be appropriate to limit that kind of cooperation.

 

      In terms of whether the Trump administration was a part of this, it’s hard to say. This was in the stewpot, like I said, for over a decade, and maybe it’s a little bit too coincidental that the decision to ask for a full investigation came right after the current administration came into office. But as I mentioned before, there were a lot of other pressures on the court as well from African countries and also form a number of NGOs and human rights advocates who had argued that the ICC was not willing to take on great powers, that it was only interested in looking into circumstances or alleged crimes committed by less powerful countries. So I think that there was a multitude of different pressures that led into the decision by the court.

 

Greg Walsh:  Perfect. Brett, Cully, do you have anything to comment on at the end, or are you all good?

 

Brett Schaefer:  Thank you very much for having us on.

 

Charles “Cully” Stimson:  Very much appreciate you having us.

 

Greg Walsh:  Perfect. On behalf of The Federalist Society, I want to thank our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.