By Matthew Smith in The New York Times
Human rights defenders have for decades played a critical role in documenting and seeking justice for genocide, war crimes and crimes against humanity, often risking life and limb in conflict zones and repressive countries in pursuit of justice.
The organization that I co-founded and lead, Fortify Rights, has been on the front lines of this effort. For the past 12 years, we have investigated atrocities in Asia with a focus on the mass killings, rape, torture and other crimes committed in Myanmar. We have routinely shared evidence with the Office of the Prosecutor at the International Criminal Court (I.C.C.) in The Hague, which is investigating possible crimes against humanity committed against ethnic Rohingya.
Our work is now threatened, not by Myanmar’s brutal military junta, but by the Trump administration.
On Feb. 6, Donald Trump issued an executive order imposing sanctions that target the work of the I.C.C. Coming amid the flurry of contentious executive orders and sharp policy changes initiated by Mr. Trump, this order received relatively little notice. But it strikes at the heart of efforts to pursue international justice over the worst crimes against humanity.
The order singles out the court’s chief prosecutor for sanctions. Providing “services” to the prosecutor’s office is also now forbidden under U.S. law, punishable by fines or even prison. The risk of punishment for sharing evidence, coordinating witness testimony or similar actions involving the court has sent a chill through the human rights field and is already impacting the work of the court and organizations like mine.
This is an unconstitutional infringement on my First Amendment rights as an American, and that’s why I, with the representation of the American Civil Liberties Union, have filed a federal lawsuit to challenge the order.
The Trump administration views the court in The Hague as a threat to U.S. sovereignty because citizens of the United States or of its allies, such as Israel, could be targeted for prosecution. The order accuses the I.C.C. of “illegitimate and baseless actions,” specifically citing the court’s issuance of arrest warrants in November for Prime Minister Benjamin Netanyahu of Israel and its former minister of defense Yoav Gallant for suspected war crimes and crimes against humanity in Gaza.
U.N. experts and human rights organizations around the world have denounced the order, and for good reason. The court is the only permanent global institution dedicated to prosecuting such crimes. It is currently conducting a dozen investigations in Ukraine, Palestine, Venezuela, Libya, Congo, Afghanistan and elsewhere.
Already, nongovernmental organizations are pulling back on working with the international court, fearing U.S. repercussions. According to a report last month by The Associated Press, some court officials have resigned, the chief prosecutor’s bank accounts were frozen and Microsoft canceled his email account.
My colleagues and I at Fortify Rights have been affected, too. When Mr. Trump’s order was issued, we were preparing to share with the court new evidence about deadly airstrikes carried out by Myanmar’s military junta against civilians — evidence that could support future war crimes prosecutions. We also recently made contact with a former senior officer in the Myanmar military who was involved in covering up atrocities against Rohingya in 2017 and is willing to provide us with evidence. Such high-value witnesses are difficult to find in Myanmar.
Normally, I would contact the office of the I.C.C. prosecutor about these developments but the risk of punishment for violating the sanctions prevents me from doing so.
All of this adds to the damage already inflicted on human rights protections by Mr. Trump, including his rapid and reckless dismantling of the U.S. Agency for International Development, which not only ended critical aid and health programs around the world but also initiatives that advanced democracy and exposed human rights abuses. Last week, Secretary of State Marco Rubio announced plans to go further by gutting State Department programs that supported democracy and human rights.
The international court, which was created in 2002, is not perfect. Its work can be slow and painstaking. We’re still waiting for it to open an investigation into atrocities committed in Myanmar during a military coup in 2021 and a subsequent civil war that is still raging.
But the court’s deliberate, methodical nature is what gives it credibility. It gathers evidence carefully, protects witnesses and builds cases to withstand the highest legal scrutiny. That’s why authoritarian leaders fear it. Just ask the former Philippine president Rodrigo Duterte, who was handed over to the court in March by the Philippine government to face trial in The Hague over extrajudicial killings committed during his years in office. This breakthrough for the many Filipino families who lost loved ones came about only because the international court had issued a warrant for Mr. Duterte’s arrest.
The International Criminal Court poses no threat to the United States. It is a court of last resort, stepping in only when national courts are unable or unwilling to prosecute the world’s gravest crimes. Yet even though the United States never ratified the treaty establishing the court and does not recognize its jurisdiction, it has provided the court with support on multiple occasions, including for investigations into crimes committed in places such as Darfur, Libya and the Democratic Republic of Congo. In 2022, a bipartisan congressional majority authorized expanded cooperation with the international court, to hold Russian officials accountable for war crimes in Ukraine.
In a fracturing world, where crimes against humanity occur at an alarming rate and impunity all too often prevails, this work is vital. Yet Mr. Trump’s morally indefensible attack on the court severely undermines this crucial institution while denying Americans their basic constitutional right to speak, share information and pursue justice.
Fighting this order isn’t only a defense of the work I do, or the court itself. It’s also a statement about what kind of country we want to be. Mr. Trump claims he’s defending U.S. sovereignty. But that shouldn’t mean silencing American citizens and survivors of atrocities or shielding war criminals. And it certainly shouldn’t mean shredding the First Amendment.
This article was originally published in The New York Times.