Donald Trump Fought International Law (And Donald Trump Is Winning)
The United States is weaponizing the global sanctions regime to protect Israel
When Omar al-Bashir was first indicted by the International Criminal Court in 2008, howls went out in some particular corners of the world.
Libyan dictator Muammar al-Qaddafi called it “First World terrorism.” Serbia awarded him a national medal. Xi Jinping maintained an open invitation for al-Bashir, “a friend to the Chinese people,” to visit Beijing. He flew to Johannesburg for an African Union summit and, despite an open warrant for his arrest, he was allowed to fly home without much trouble.
Protests erupted in Khartoum, with Sudanese people waving signs bearing the face of their president and chanting: “We love you President Bashir.”
The head of Sudan’s bar association, a sycophant of the regime, told the AP at the time that the charges were bunk. The ICC prosecutor, he said, “is playing a political role, not a legal one.”1
Al-Bashir was the first sitting world leader indicted by the court. And his government, unsurprisingly, rejected the indictment. “There will be no recognition of or dealing with the white man’s court, which has no mandate in Sudan or against any of its people,” a spokesperson for the government said.
Columnists and analysts derided the ICC for failing to bring al-Bashir to justice.
Justice, despite what al-Bashir’s various allies believed, was sorely needed. His regime, and the various death squads which operated under it, had prosecuted terror in the west of the country, targeting ethnic African tribes. The ICC had reason to believe that al-Bashir and his cronies had committed war crimes and crimes against humanity in that campaign. Two years later, it upgraded the charges to include genocide.
But still, al-Bashir eluded justice. The Western world vowed to arrest him should he step foot on their soil, and kept up sanctions on his rogue regime, even as his fellow despots coddled him. That is, until President Barack Obama — citing some “positive actions” from al-Bashir — signed sanctions relief for Khartoum.
Just as the United States gave up on holding him accountable, the Sudanese people redoubled their efforts to get rid of him. Protests had roiled the state throughout the 2010s, but they culminated in the Sudanese revolution in 2018.
What began as cost-of-living protests turned into a full rejection of al-Bashir’s genocidal state. “Bread is what drove people into the streets, but 30 years of hardship and violent oppression is what is keeping them there,” one Sudanese writer told the Middle East Eye at the time.
Finally, in 2019, al-Bashir was removed from power in a coup d’état. He has not been extradited to The Hague, but he remains locked up in a military facility outside Khartoum.
There is no happy ending to this story, particularly not as Sudan is embroiled once more in a monstrous civil war. Al-Bashir, in ill-health, is unlikely to ever stand trial for his crimes. Many of his fellow villains who abetted his 30-year tenure remain in power, at least for now.
Frustrating and depressing as it may be, it is hard not to feel heartened by the unwavering moral certainty expressed by the ICC since 2008. It was not, and still is not, all-powerful. It has no team of sheriffs who can apprehend evil-doers. It cannot topple regimes or enforce justice in states which deny it. But it is a rare international body which is capable of speaking with humanitarian clarity — even if it is not appreciated at the time. The ICC finds itself situated squarely on the long arc of the moral universe, bending it toward justice.
And now, Donald Trump is determined to snap that arc in half.
This week, on a very special Bug-eyed and Shameless, a quick meditation on what we may lose if Trump wins in his crusade against the ICC.
Just a few programming notes: This week’s newsletter is a vehicle for the latest episode of Soft Power, all about Donald Trump’s crusade against the International Criminal Court. (Which builds on a column I wrote for the Star.)
To that end, I’d really appreciate if you would do some combination of: Watching the video, liking it, subscribing to my channel, and sharing it with your friends.
Let me pull back the curtain of this business, a bit. The Soft Power project was always supposed to be a short-run series. As such, I knew the only way to master the notoriously-tricky YouTube algorithm would be to spend a bit of money to promote these videos. A few hundred bucks can get tens of thousands of eyeballs on these videos — and they, in turn, like, subscribe, etc, which gets the video in front of even more people. This is all pretty standard.
But shortly after I began the channel, all my promotions came back with a big red reply: “DISAPPROVED.”
It turns out that Google has expressly forbade promoting any YouTube video which depicts or mentions Donald Trump, unless the channel agrees to register as an “election advertiser.” (Which, for the U.S., requires registering with the Federal Elections Commission.) It doesn’t matter if the ads don’t run in the United States. It doesn’t matter that this is clearly journalistic content. (Google policy allows “news organizations to promote their news coverage” even if it includes public figures. But this exemption has been ignored.)
I go through this to illustrate something I say on this newsletter constantly: Big Tech is not a friend to journalism. Google cares more about protecting the feelings of their political overlords than truth-telling. This is just one data point in that story.
Anyway, in other news, readers in Toronto and Saskatoon can catch me at two different events in the coming days.
Later today, I’ll be talking about misinformation in front of the Ucranica Research Institute in Toronto.
On Saturday (Feb 21) I’ll be at the Ukrainian Museum of Canada giving a version of that same talk.
If you’re in either city, come by!
Alright, back to this (brief) dispatch.
That the United States opposes the existence of the International Criminal Court is no great surprise.
When the nations of the world gathered in Rome, in 1998, to debate and vote on the prospect of creating a system of international law with the power to prosecute individuals, there was a real belief that the idea would fail. Canadian Foreign Minister Lloyd Axworthy was more optimistic.
Axworthy: I had been approached by the NGO community — which was working on the discussion at the UN — to see if we would provide the support that we did on the Landmines Treaty, which is to mobilize diplomatic-political engagement. […] So when we went to Rome, we had kind of a double role. One was managing the things inside the hall, and my job and others was to kind of mobilize support on the floor.
I remember getting a call from Madeleine Albright, who was a good friend of mine, and she was very supportive of a court, but the US government was not prepared to give up its exclusionary role. And she called me to commiserate that we were going to get beaten. And I said: Well, I can count votes better than your State Department officials can — and we’re going to win. And we did. And she always chided me for that.
The vote ended up being a landslide. 120 to 7. The court would move forward, so long as nations would ratify the Rome Statute and agree to be subject to the court’s jurisdiction.
In 2000, shortly before leaving the White House, President Bill Clinton signed the Rome Statute. But, he stressed, he wouldn’t ratify it. He didn’t really support the idea of this yet-undefined international court.
In a statement, Clinton worried that U.S. officials may face “unfounded charges” from the court. America had raised the specter of “politicized prosecutions” which could target American actions abroad.
This hypothetical court would almost certainly deter human rights abuses abroad, Clinton said, but America would never join if its own actions were scrutinized by the court.
It was a perfectly incoherent position from the world’s only superpower. And Clinton’s successor, George W. Bush, immediately set to work whacking the court. He passed legislation forbidding any American service member from being held accountable by any international court and essentially committed the country to fighting any ICC investigation which touched the U.S.
Meanwhile, more than 120 other nations ratified the treaty. The ICC began operating in 2002.
And then the genocide in Darfur happened. While Washington’s objections didn’t entirely fade away, it did start actively encouraging the ICC’s investigation into al-Bashir’s crimes.
“Why did the administration relent?” One international law expert wrote in 2005. “One factor is that the ICC neither looks nor acts like an ogre.”2 While the ICC’s work may not be exactly well-known, a poll from that year found that nearly 70% of Americans supported the idea of such an international court.3
The — admittedly somewhat valid — fears were proven wrong. The ICC wasn’t some nefarious European scheme to enforce their brand of liberalism, nor an institution prone to weaponization by ideological factions. It was a court that was imbued with professionalism and a seriousness of purpose. It sought to prove that war criminals and dictators could be held accountable. They could go to jail.
President Barack Obama cautiously engaged with the court further, joining as an observer and even promising to help bring some of those wanted by the court to justice.
“It’s clear that joining the court is not on the table,” Stephen Rapp, Obama’s Ambassador-at-Large for War Crimes Issues, said in 2010. But, he said, America can be slow. “I mean, it took us 40 years to ratify the Genocide Convention.”
With time, he said, “there’s a possibility that we may gain confidence in this institution and that would enable us to move forward. And who knows what the future may hold?”
The future held, unfortunately, Donald Trump.
The Trump administration declared war on all international fora. He railed against the World Health Organization and crusaded against the Paris climate accords. But he has reserved special scorn for the International Criminal Court.
The attack on the ICC began, in earnest, when the court announced it was investigating the possibility that U.S. forces committed war crimes in Afghanistan. William Burke-White, then a Brookings scholar, put the prospect of this happening in plain terms: “The prosecution of American service members for acts in Afghanistan could have been easily avoided.”
America could have, he said, simply not committed human rights abuses. It could have done more to prevent the killing of civilians in coalition airstrikes, it could have sworn off torture, it could have decided not to set up black sites around the world. But, as we know, it did all of those things.
America could have, still, averted this prospect of ICC prosecution by simply holding its own citizens accountable. Apart from a few egregious examples which led to court-martial, that didn’t happen.
But the United States protested enough until it got its way. The ICC — which was also investigating crimes committed by the Taliban and other groups — de-prioritized and deferred the investigation, under pressure from Washington. It was a clear example of the court playing a political role, not a legal one.
Despite that, Trump punished the court anyway. In 2020, the White House issued an executive order slapping sanctions on ICC staff, screaming about the court’s “transgressions.” The sanctions were fairly limited, but they contained a clause promising to target anyone “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel without the consent of the U.S.” That raised the specter that many, many more names could be added to the list. And America would use its monopolistic control over the world’s financial system to do it.
Trump left office early the following year, albeit with some resistance. President Joe Biden cancelled that executive order shortly thereafter, and there was relatively little damage done.
Whatever tribulations the ICC had faced, it did seem that the court survived the most dangerous part of its history. Its creation was unlikely, opposition was stiff, the attacks became unhinged, and yet it was forging ahead. In 2023, it finally issued an indictment for one of the worst war criminals out there: Vladimir Putin.
But the Hamas attacks of October 7 changed everything. Israel prosecuted its war against the terror group without much regard for keeping the perpetrators of the massacre alive long enough to prosecute, and it tolerated inflicting staggering civilian death tolls to achieve its end.
A year into that war, an indictment for Benjamin Netanyahu became inevitable. The ICC had been investigating not just the impact of Israel’s war on Gaza, but years of Israeli policies designed to shrink and eliminate the Palestinian state. Frequent, repeated statements from Netanyahu’s cabinet underlined that mission.
When the indictment was finally filed, it provoked howls from the Biden administration, which called the warrants “outrageous.”
The Democrat kept his opposition limited to written statements. His Republican successor, as we know, upgraded that opposition to action.
The ICC’s process, the White House said, was “politicized.” It froze the assets and banned from the country the ICC’s prosecutor, its key staff, and a list of its judges — putting them on the sanctions list alongside terrorists and despots. It went further, sanctioning a raft of Palestinian NGOs, accusing them of being “directly engaged in ICC’s illegitimate targeting of Israel.”
In so doing, Trump threw his arms around Netanyahu in the same way Xi Jinping and the rest did to Omar al-Bashir all those years ago. There are differences, of course. But the consequences are actually worse.
These attacks are making the lives of these ICC judges hell, and they risk disrupting the critical work of the court — not just in its prosecution of Netanyahu, but in a raft of other cases, including the case against al-Bashir.
Canada and Europe have the power to do something about this. They can issue blocking orders, ensuring that the American sanctions have null effect outside of America. At present, European and Canadian banks are complying with Trump’s economic warfare. In the name of risk management. Canada and Europe have the power to prevent that, but thus far they seem uninterested.
I wrote nearly three years ago about the critical importance of international law in the name of deterring atrocities. Back then, it seemed that maybe — just maybe — we were heading in the right direction.
Things have grown dire quickly. We now face the prospect of our system of international law, one painstakingly built over nearly a century, falling apart in a matter of months.
We should not let that happen.
Mike Corder, Associated Press, July 15, 2008.
Darfur and a New Court, Chicago Tribune, Mar 13, 2005
U.S. Obstructs Global Justice, The Los Angeles Times, Mar 29, 2005