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Under a different administration, and despite its lack of membership in the court, the United States might be assisting the International Criminal Court in its investigation of an alleged genocide of Myanmar鈥檚 Rohingya minority at the hands of the country鈥檚 military in 2017.

The George W. Bush administration assisted the Hague-based court 鈥� created in 1998 to try cases of international war crimes and crimes against humanity 鈥� in investigating the genocide in Darfur, providing among other things satellite imagery to help locate suspected mass graves.

The Obama administration deployed special forces to Uganda in 2011 to help track down a leader of the Lord鈥檚 Resistance Army, wanted by the court for suspected crimes against humanity, and shared intelligence of interest for other investigations.

But that past cooperation has turned into virulent antagonism under President Donald Trump. Last week the U.S. went so far as to impose sanctions on two ICC officials, the court鈥檚 lead prosecutor and her chief of staff, over the international court鈥檚 willingness to investigate alleged war crimes committed by belligerents in Afghanistan 鈥� including potentially the U.S.

The financial sanctions cite ICC Prosecutor Fatou Bensouda for her 鈥渆ffort to investigate US personnel,鈥� and ICC division chief Phakiso Mochochoko, for assisting the prosecutor.

Trump administration officials describe the imposition of sanctions most often used against terrorists, drug cartel leaders, and officials of hostile governments as a no-other-choice step aimed at preserving U.S. sovereignty and protecting American citizens from prosecution by a politicized global court answerable to no one.

鈥淭he United States is a strong advocate for justice around the world, but 鈥� [the U.S. has never] accepted鈥� the ICC鈥檚 鈥渏urisdiction over our personnel,鈥� said Secretary of State Mike Pompeo last week in announcing the sanctions. 鈥淭he ICC鈥檚 recklessness has forced us to this point and 鈥� cannot be allowed to follow through with its politically driven targeting of U.S. personnel.鈥�

Moreover, Mr. Pompeo said he was acting to thwart the danger posed by the court to 鈥渙ur allies鈥� 鈥� assumed to mean Israel, which has also drawn the attention of the ICC over alleged 鈥渨ar crimes鈥� in the occupied West Bank and in Gaza.

Cooperation, in part

But for many experts in international criminal justice, the U.S. action is the work of a superpower bully that will do nothing to deter the ICC from pursuing the investigations it deems important 鈥� including of the U.S. Instead, they add, it will only alienate U.S. allies and major ICC funding members, like the Europeans and Japan, who could have been recruited to help steer the court from focusing on the U.S.

Some experts see the U.S. action in terms of international equity that predate the Trump administration. Despite longstanding issues with the ICC and never having joined the court and its 123 members, the U.S. has repeatedly been willing to cooperate with it and offer material support 鈥� as long, some U.S. critics say, as it was investigating weak, primarily African governments. But when the ICC decided it might add the U.S. to its docket 鈥� well, then, not so much.

Some nevertheless lament seeing the global power that established and led the postwar international justice system with adjudication of the Nuremberg and Tokyo war crimes trials now acting in ways they say risk encouraging bad behavior by despots and human rights violators.

鈥淭he U.S. has historically supported and even spearheaded international justice, from the Nuremberg and Tokyo tribunals [to] the war-crimes cases involving the former Yugoslavia and the Rwanda and Cambodia tribunals 鈥� but none of those cases ever risked that an American would be tried,鈥� says Jennifer Trahan, a clinical professor of international law and human rights at New York University鈥檚 Center for Global Affairs.

鈥淚t鈥檚 extraordinarily hypocritical for us to take action like [the sanctions] as soon as that international justice system considers looking at U.S. actions. If the U.S. believes in international justice,鈥� she adds, 鈥渢hen it can鈥檛 be immune from it.鈥�

The U.S. has never been a big fan of the ICC, but Washington started developing a working relationship with the court once the White House decided the ICC could in some cases serve its interests.

John Bolton鈥檚 stance

Led by the anti-ICC fervor of John Bolton 鈥� who rose to become ambassador to the United Nations 鈥� the George W. Bush administration initially took steps to weaken and threaten the court. But the genocide in Darfur, and pressure from U.S. evangelicals to do something about it, prompted President Bush in his second term to see the ICC in a new light.

鈥淚n the Bush first term we even talked of invading The Hague if any Americans were ever jailed there鈥� by the ICC, says William Burke-White, an expert on international law and institutions at the University of Pennsylvania in Philadelphia. 鈥淏ut then the administration comes under political pressure from the religious right to do something about the Darfur genocide, and it realizes the ICC can be a useful tool without putting American lives at risk鈥� on the ground in Sudan, he adds.

That cooperation continued under the Obama administration. 鈥淭here was very much a sense that, if the U.S. engaged with the court, we could shape its development and direction, even if still from the outside,鈥� Professor Burke-White says.

At the same time, he adds, the court realized it couldn鈥檛 do its work without national governments 鈥� particularly wealthy ones like the U.S., with the intelligence, satellite, and technology capabilities the court lacks but needs to undertake complex investigations.

But that growing cooperation came to a screeching halt when two things happened, Professor Burke-White says: John Bolton joined the Trump administration in 2018 as President Trump鈥檚 national security adviser, bringing with him his goal of killing the ICC; and the ICC moved to investigate war crimes in Afghanistan, including those allegedly committed by the U.S.

鈥淭he court was coming under a lot of pressure to show that it didn鈥檛 just investigate weak governments in Africa, but was able to take on the powerful as well,鈥� he says.

Christopher Ankersen, a former U.N. assistant to the Khmer Rouge trials in Cambodia, notes that the ICC was starting to be dismissed by weaker nations and frequent targets of the court, particularly in Africa, as a tool of Western powers more than a champion of true international justice.

鈥淐ountries within the African Union started equating the ICC with 鈥榥orthern justice,鈥欌�� he says, 鈥渁nd this gave growing credence to the view that the ICC was a hypocritical institution,鈥� says Professor Ankersen, now at NYU鈥檚 Center for Global Affairs.

Sanctions 鈥渃ounterproductive鈥�

Even some experts in international law who agree with the U.S. position that the ICC鈥檚 case against the U.S. is 鈥渋llegitimate鈥� say they believe the Trump administration would have been much better off holding the sanctions fire.

Better for the U.S. to have instead made its case among its key allies who hold the ICC purse strings and influence ICC policy and focus, they say.

鈥淢y view is that the ICC investigations into the U.S. and Israel are illegitimate 鈥� and it鈥檚 a view shared by former Obama administration officials as well as hundreds of members of Congress,鈥� says Orde Kittrie, a senior fellow of foreign policy at the Foundation for the Defense of Democracies and a professor of international law at Arizona State University鈥檚 Washington program. The U.S. has been 鈥渨illing and able to investigate itself,鈥� which he says by the ICC鈥檚 own rules precludes any ICC investigation.

But the sanctions have been 鈥渃ounterproductive,鈥� he maintains, as they have alienated key U.S. allies who 鈥渟hare our concerns about the ICC鈥檚 operations and failures.鈥�

鈥淲hat we should have done is reached out to U.S. allies that provide more than 50% of ICC funding,鈥� Professor Kittrie says, 鈥渁nd worked with them to encourage the court to return to its core mission.鈥�

But instead, many experts worry that the Trump administration鈥檚 sanctions will only further tarnish the U.S. image as a beacon of international justice.

Noting that the U.S. singled out the ICC鈥檚 two senior African officials, NYU鈥檚 Professor Trahan says, 鈥淭he racial optics are terrible given everything that鈥檚 going on in our country. Why did the administration go after [them],鈥� she adds, 鈥渨hen there are other high-level people of other nationalities鈥� in the prosecutor鈥檚 office?

鈥淭his is not the first time we鈥檝e seen this tension between America鈥檚 international relations and international law,鈥� says Professor Ankersen. 鈥淏ut to the extent this kind of action from the U.S. encourages others to follow the U.S. lead and disregard international law, it can only weaken U.S. interests.鈥�