The White House's Quiet Deregulation of Weapons and War

The White House's Quiet Deregulation of Weapons and War
The White House's Quiet Deregulation of Weapons and War
Published April 16th, 2019 - 08:47 GMT

 

At a Glance: U.S. President Donald Trump has made it easier to buy sensitive nuclear technology, small arms, and armed drones. His administration has also relaxed rules in conflict zones, killing thousands of unarmed civilians in the process, while undermining the international community’s attempts to hold human rights violators to account. These moves cumulatively benefit rogue regimes around the world, allowing them to buy and use U.S.-made arms with which to enforce their rule, and then get away with those crimes under U.S. legal cover. This aspect of Trump’s presidency, perhaps the hallmark of his foreign policy, is also the least reported.

 

 

 

A Dictator’s Guide to the Trump Administration

 

Being a dictator is not easy.

You’ve got to exert control over your country’s cadre of elites, deploy secret police and the military without having them turn on you, kill or disappear those who dissent to your rule, foster relations with like-minded tyrants, engage in proxy conflicts with other states, create loyalist militias and mercenaries to act on your interests abroad, keep your economy ticking while carefully siphoning off money into your secret offshore accounts, engage in black market arms deals with rogue states while marketing yourself as an ally to world powers; all without catching the ire of powerful states that could invade and topple you.

To do all this with impunity, you need, there are three essential steps to enforcing your rule with impunity.

First, you need to acquire weapons of all types, conventional, unconventional, indiscriminate and precision. Then you need to be able to use them against protesters, opposition or in conflict. Finally, you need to be able to get away with these war crimes and crimes against humanity without being held accountable by the international community.

Pulling off all these things is nearly impossible in the long-run. But luckily for you if you’re a dictator of a nascent regime, the Trump administration is making all three of these steps easier. 

U.S. President Donald Trump has steadily deregulated export and subsequent monitoring controls on sensitive nuclear technology, armed drones and small arms, allowing lethal arms to end up in the wrong hands easier.

His administration has also relaxed regulations surrounding wartime conduct and targeted killing, making it far easier to kill civilians with those weapons.

Finally, he’s rebuffed international courts’ attempts to investigate such war crimes, at the same time ending norms of transparency regarding who the U.S. kills in its quiet drone wars. 

An exhaustive analysis into these individual moves reveals a vital part of Trump’s foreign policy doctrine, which is characterized by war profiteering, conflict-stoking and pushing against accountability.

The impact of these policy decisions have the potential to linger far beyond Trump’s presidency, infusing global politics with a massive dose of disorder despite decades of steady attempts to reign in the chaos of international relations. Many of these moves have already led to thousands of civilians dying, and many more will be endangered in the long-term.

So now imagine you are the dictator of a fledgling state, and you have a Christmas wish list.

You want the latest nuclear technology to set up a stable source of energy while maintaining the potential to weaponize that tech just in case any regional competitors gets any ideas about hegemony.

You also want a steady flow of small arms to give your extralegal paramilitaries some bite while they enforce your rule on the civilian population and destabilize other regimes in clandestine operation. 

And to top it all off, you want the latest and greatest in lethal drone technology.

Thanks to moves by the Trump Administration, acquiring all these sought-after items is getting much easier. U.S. President Donald Trump, with his cabinet of family members and neoconservatives, has been steadily relaxing oversight and regulatory mechanisms governing the export of nuclear technology and small arms.

These decisions may spark a proliferation of conventional and unconventional weapons that are less traceable and controllable as they get into the hands of rogue states and nascent non-state actors.

Of course, the U.S. has, for decades, allowed questionable arms transfers in the name of national security, and many of Trump’s deregulatory ideas were engineered by previous administrations. The notable difference that makes Trump stand out is the sheer pace at which arms and technology exports are being deregulated and commodified.


Getting Nuclear Tech Is Easier Than Ever

Nuclear power plant (Shutterstock)

The most dramatic rolling back of arms and technology controls is with nuclear tech. In Feb 2019, the U.S. House oversight committee blew the whistle on a secret plan advanced by the White House to sell Saudi Arabia sensitive nuclear technology.

Though the technology sale is intended to merely be for a series of nuclear power plants, Saudi has publicly said they would weaponize the tech as soon as they thought Iran was doing the same.

The traditional regulations governing such sensitive transfers have, so far, not been developed for the deal.

Concocted by a cabal of multinational energy company CEOs and former generals under the corporate name of IP3, the plan is to give Saudi the nuclear technology necessary to enrich uranium in exchange for untold billions. One of the senior U.S. officials who revealed the plan called it “a scheme for these generals to make some money.”

"Bonker-balls” is how one nuclear nonproliferation expert explained it: “[I] can't come up with a better word. It's one of the most amazing things I've ever seen. It's a half-baked, grandiose plan with all kinds of things that could go wrong in it and people screaming at them to stop. And they don't stop.”

And indeed, its progress is accelerating.

Despite cries from the nuclear non proliferation community, the U.S.’ Energy Secretary Rick Perry approved the ability of six U.S. companies to secretly transfer the nuclear tech to Saudi on March 27.

Though the companies are not named, the frontrunner in the race to provide Saudi nuclear tech is IP3 whose executives and representatives drafted the initial plan, presented it to Trump, and have regularly met with him to get his approval.

Normally for any country to receive nuclear technology from the U.S., they must sign a bilateral, binding agreement regulating the ways the buyer country can use the tech: these agreements are nicknamed ‘123 Agreements’ after the section of the law by which these agreements are intended to abide. 

 

These moves would "deal a major blow to the integrity and viability of the global nonproliferation regime and lower the normative barrier to nuclear weapons acquisition in other regions of the world."

 

Not only have Saudi and the U.S. not signed a 123 Agreement, Saudi has continuously refused to do so, because it would limit their ability to weaponize the technology. Saudi’s crown prince, Mohammed bin Salman, stated publicly that Saudi would race to acquire nuclear weapons if they sensed Iran was doing the same.

"If Tehran goes on to develop a nuclear weapon at some stage, the possibility of a nuclear Saudi Arabia is not difficult to imagine,” Rajeswari Pillai Rajagopalan, head of the Nuclear and Space Initiative, told Al Bawaba.

“Saudi Arabia doesn’t just want reactors—it wants the ability to enrich uranium. And that is very sensitive technology,” Jon Wolfsthal, formerly a top nonproliferation official in President Barack Obama’s administration and now director of the Nuclear Crisis Group, explained. Some even speculate that Saudi is relying on Pakistani nukes to be delivered to them in case they wish to attain them.

Beyond potential for singular attacks or an arms race, lessening the rules for nuclear proliferation reflects a far more daunting global shift that could have devastating consequences.

Rajagopalan explained that though a nuclear-armed Saudi would not radically alter the global geopolitical map, it “would be a further reflection of the weakening nuclear nonproliferation architecture.” It would contribute to the deterioration of nuclear arms control norms that were developed precisely in response to the destruction such weapons can reap.

The U.S.' current approach to selling nuclear technology to Saudi, which includes minimizing regulation for the sake of expediency and cutting out competitor suppliers like Russia and China, could seriously jeopardize decades of work to control the spread of hyper-dangers weapons such as ballistic missiles, barrel bombs and cluster munitions.

These moves would "deal a major blow to the integrity and viability of the global nonproliferation regime and lower the normative barrier to nuclear weapons acquisition in other regions of the world," explained Kingston Reif, who is the Director for Disarmament and Threat Reduction Policy at the Arms Control Association.

It is all too easy to imagine a series of nuclear arms races spiraling into all-out armageddon, but this remains a far-fetched, alarmist scenario.

What is far more likely and thus more potent, is that nuclear nonproliferation norms will degrade along with other arms regulations, and give way to individual states’ investing more in developing high-powered, indiscriminate weapons.

If you’re the head of the Saudi regime, this is all fantastic news. But if you’re the leader of another regime elsewhere in the world, the nuclear sale to Saudi is instructive.

If you can finagle your way into convincing Trump and some of his associates that you’re a rich friend and strategic ally, they may consider you a potential trading partner. The traditional rules governing the deal can be thrown out the window if they are deemed inconvenient for the expediency of the deal, meaning you could get your tech within a few years.

 

Commodifying America’s Small Arms

(AFP/FILE)

In the name of profit-seeking, drug cartels, paramilitaries, terror groups, may all be able to receive U.S.-manufactured small arms much more easily.

Small arms are anything that can be carried by a foot soldier. They form the backbone of any war lord or rogue regime. Assault rifles, pistols, grenades, sniper rifles, heavy machine guns—these armaments give insurgencies their ability to launch guerrilla wars in or paramilitaries the means to drop crowds of dissidents.

They have always been relatively easy to get from countries like Russia or China, but these countries’ weapons are generally lower-tech than what the U.S. offers.

Trump is looking to rectify this.

The Trump Administration is currently looking to finalize the authority providing oversight of small arms sales from the Department of State to the Department of Commerce; from the diplomatic wing of the U.S. to its commercial side in a process called The Export Control Reform Initiative.

The Department of Commerce presents far fewer regulations for the products it is mandated to oversee than the Department of State, and is primarily tasked with maximizing economic growth.

This has arms experts worried that small arms will be treated more like commodities the U.S. can use to saturate global arms markets rather than potentially toxic political liabilities that can destabilize countries. As arms analyst shave noted, American-manufactured retail arms are nearly identical to the kinds of military armaments used by other countries.

"The types of weapons the administration wants to remove from State Department review and Congressional notification actually merit the tightest export control because of their real and potential role in fueling violence, including violence against U.S. military and law enforcement personnel,” Jeff Abramson, a Senior Fellow at the Arms Control Association said in a House hearing on the matter.

"Research indicates that the types of weapons being transferred to Commerce control—AR- and AK-type rifles and their ammunition—are ‘weapons of choice’ of drug trafficking organizations in Mexico and other Central American countries. Many can also be easily converted to fully automatic weapons,” he added.

Crucially under the current regulatory scheme, the State Department is required to notify Congress of all arms sales worth more than $1 million, to keep the legislature up to speed on whom the U.S. is arming. This requirement is scheduled to be scrapped.

Another key regulatory element to be scrapped is a requirement under the Foreign Assistance Act that the U.S. stop arms sales to countries found to be consistently violating human rights. Transferring oversight of deals to the Commerce Department removes this legal requirement, which in practice removes a legal obstacle authoritarian regimes have to buying U.S. arms.

 

“The weakening of Congressional oversight of small arms transfers will mean that fewer problematic transfers will be halted which will ultimately increase the likelihood that exports will end up in the hands of human right[s] abusers, organized crime, terrorists..."

 

The State Department monitors the end-use of arms, meaning they try to see how the arms they are authorizing the sale of are being used and re-sold around the world. Because the Commerce Department is concerned with growth and not political or humanitarian stability, they will likely not monitor arms’ end-uses.

This makes the gun far less tractable than they already are, and will allow them to pervade black and grey markets, where they can be bought by anyone who has the cash for U.S. guns.

Kristen Rand, the legislative director for the Violence Policy Center told Al Bawaba that the move would make untraceable guns made with 3-D printers more readily available than ever before.

She also noted that large shipments of untraceable weapons would be a boon for black markets.

"It will also result in an increased volume of gun exports which will only increase the likelihood that firearms will leak from legitimate purchasers to the illegal market where they are more likely to have their markings obliterated; obliterating serial numbers is common among guns illegally trafficked from the U.S. to Latin America,” Rand said.

"Also,” she added, “the weakening of Congressional oversight of small arms transfers will mean that fewer problematic transfers will be halted which will ultimately increase the likelihood that exports will end up in the hands of human right[s] abusers, organized crime, terrorists, etcetera.”

The U.S. already has a long-standing tradition of exporting arms to unstable regions only for them to end up in the hands of extremist groups. Transferring oversight of small arms deals to the Commerce Department essentially guarantees that problem will only get worse.

The move has been mulled for years, and actually was almost done under the Obama Administration.

The only thing standing in its way is Senator Robert Menendez, who is a part of the Senate Foreign Relations Committee.

Menedez has vowed to stop the move, because it’ll likely make it far easier to sell and manufacture weapons for international client while making it harder to track what happens to those arms.

 

The Lethal Drone Trade

The MQ-9 Reaper (U.S. Air Force)

Last on the dictator’s Christmas wish list is the latest in armed drone technology.

Deploying drones fitted with missiles, guns or bombs is quickly becoming a preferred tactic for states and non-state actors alike. It’s cheap, it’s effective, it minimizes the aggressor's exposure when conducting operations and most critically it gives one side a micro-air force to wreak havoc on strategic targets.

Powerful states, terror groups and secretive guerrilla organizations have all adopted drones to be one of their primary tools in conducting operations.

But actually getting lethal drones from U.S. manufacturers has been tough. Since their advent, both the Bush and Obama administrations cautioned that lethal drones could easily end up in the wrong hands if they are overly commodified, so they both placed tight export controls on them.

Under Donald Trump, many of those export restrictions are now being thrown out the window in a bid to stay competitive with Russian and Chinese drones, which have little to no restrictions placed on them regarding their buyer or their intentions.

Since March 2018, the Trump administration has lowered the barriers for buying and selling U.S. drones, and even more pressure is being exerted to make the most lethal models available for purchase.

In loosening the regulations surrounding their use in conflict zones and opting out of releasing data on strike casualties, the Trump team is also making it easier to use them without effective oversight.

Collectively, these moves make getting and using lethal drones much easier, incentivizing the creation and expansion of small conflicts around the world where drones can serve as one side’s main force, as is the case with the U.S. in Somalia and Yemen.

These moves are subtle, and many will take years to fully register. As such, they have received little media attention, often falling to the wayside of other breaking news stories. But they represent a profound shift in how the U.S. conducts warfare and tie in to other administration efforts to commodify U.S.-made weapons.

 

Easing export controls

An April 19, 2018 declaration that the U.S. is easing its export controls on drones was met with ecstatic joy from officials in the military-industrial complex.

"We’re getting outplayed all over the world,” a U.S. official told Reuters. “Why can our competitors sell to our own allies the equipment they are clamoring to buy from us? This policy is meant to turn that around.”

The White House’s National Trade council head, Peter Navarro, said the new rules would help clients “to more easily obtain” U.S.-made drones, allowing them to be competitive inside a drone market currently dominated by Russian, Israeli and Chinese products.

The new set of rules, entitled “U.S. Policy on the Export of Unmanned Aerial Systems” is intended to “remove barriers to the global UAS [Unmanned Aerial Systems] market and avoid ceding export opportunities to competitors where such self-imposed restrictions are unwarranted.”

In practical terms, this means loosening government oversight of armed drone sales, as well as decreasing the amount of subsequent monitoring the U.S. government performs after the deal is made.

The new rules “saw the bar lowered for the sale of armed drones to countries around the world,” explained Ella Knight, a researcher on drones with Amnesty International.

"The new policy allows arms manufacturers to negotiate sales directly with foreign governments, and lowers some of the after-sale ‘end-use monitoring’ requirements associated with export of unarmed drones equipped with lasers designators. As a result, more States are now able to acquire drones with less scrutiny.”

Knight added that this now allows states, which were previously barred from buying U.S. armed drones over concerns of their use in conflict zones, to now acquire these weapons if they have the finances.

Previous administrations sought to restrict drones sales as much as possible, for fear they could end up in the hands of regimes or non-state actors who could use them to target civilians, sell them in grey markets, or use them against U.S. interests.

The Obama-era regulations from 2015 that Trump’s new rules replaced emphasized oversight and restrictions rather than market competition. It called for “Enhanced Controls on the Export of U.S.-Origin Military UASs” that included intensive end-use monitoring and multiple sales reviews from different U.S. departments.

Some in the U.S. drone manufacturing business aren’t satisfied with Trump’s export reforms, which haven’t significantly boosted U.S. drone sales abroad, and are now actively pushing the administration to lower the regulatory barrier even further.

Regimes aligned with the U.S., including the U.A.E, and Saudi, are barred from getting the U.S.’ latest and greatest in armed drone tech. They have had to make due with homemade knockoffs, non-lethal U.S. drones and importing cheap, lethal Wing Loong types from China.

That may change very soon.

 

A Chinese-made Wing Loong drone at the Dubai Airshow, November 14, 2017, United Arab Emirates (AFP/FILE)

Lt. Gen. Charles Hooper, director of the Pentagon’s Defense Security Cooperation Agency (DSCA), told reporters in Feb 2019 that the U.S. is looking to change protocols within the Conventional Arms Transfer (CAT) policy to allow the sale of high-tech, armed drones to Gulf states.

"We want to make many of our unmanned aerial systems available to our partners. Many of them have been asking for some time, we’re going to move forward as quickly as possible,” Hooper said at an international defense industry conference in Abu Dhabi.

One of the most sought-after drones in the Gulf market reportedly has been the MQ-9 Reaper, manufactured by General Atomics.

The MQ-9 Reaper is categorized as a hunter-killer drone capable of flying with four hellfire missiles in addition to laser-guided bombs. Able to carry much heavier payloads, and fly for faster and for much longer times, the MQ-9 s built to be replace the MQ-1 Predator drone. The U.S. has deployed the MQ-9 Reaper in the wars in Yemen, Iraq, Afghanistan.

For over a year, General Atomics has been telling Gulf clients they can expect to buy the coveted MQ-9 Reaper in the near future. “With the new policies emerging under President Trump, General Atomics has been advising potential customers around the world, including the Middle East, to go ahead and start asking the U.S. government to buy drones they’ve been eyeing,” a report said, quoting Jim Thomson, a regional vice president for General Atomics.

 

Using Your Shiny New Death Machine 

Smoke billows from an explosion in Mosul, during the battle to take the city from ISIS (AFP/FILE)

When it comes to actually deploying drones, other Trump policies have made it easier to use them more frequently, with less oversight and less transparency. In this sense, his moves related to drone wartime conduct mirror the regulatory race to the bottom he has participated in with the sale of drones.

The Trump administration has carried out three critical reforms to the business of deploying drones in conflict zones, which have amalgamated into a completely new military approach to drone warfare.

First, the Trump team authorized the CIA to carry out strikes. Then they rewrote the rules for deploying them. Finally, they designated parts of Yemen and Somalia to be ‘areas of active hostilities’ while refusing to release information on strike casualties.

After only a few months in the White House, Trump wasted no time reforming rules regarding who can pull the trigger on drone strikes. In March 2017, he returned the ability to carry out drone strikes to the CIA. During the past administration, the CIA lost the ability to conduct strikes to the Pentagon.

Christopher Anders, the deputy director of the American Civil Liberties Union, decried the move, saying, “in a constitutional system of checks and balances, you want something like the power to take life in massive ways to be with institutions that are accountable to other parts of the government, certainly accountable to Congress, accountable to the White House, accountable to courts. And the Defense Department fits into that category.”

The CIA, as a secretive organization, is less integrated into legal mechanisms of accountability and transparency than the Department of Defense, Anders argued. Its ability to plausibly deny carrying out clandestine operations gives it power to attack quietly strategic targets that the Pentagon cannot.

After Trump gave CIA authorization to conduct drone strikes, he also allowed them and other intelligence agencies to refuse to publish information on those strikes, including the number of casualties they caused, with an executive order signed into law on March 6, 2019. As a result, there has been a government black-out of reliable information on the strikes they are carrying out.

"Removing the transparency measures on drone strikes by the CIA could result in expanding use of armed drones outside the battlefields,” Wim Zwijnenburg, the Humanitarian Disarmament Project Leader for PAX, a Dutch peace organization, told Al Bawaba.

With no reporting mechanism in place to ensure transparency over drone strikes, “we might see a more trigger happy CIA behind the joystick, who traditionally have had less qualms about collateral damage,” Zwijnenburg added.

In the same month Trump gave the CIA new drone strike powers, he also designated areas of Somalia and Yemen as “active areas of hostilities.” An area of active hostility, in U.S. military-political jargon, is a way to refer to active warzones. It is distinct from a legally declared warzone.

 

An African Union soldier surveys damage done by an Al-Shabaab suicide attack (AFP/FILE)

Designating some areas of the world “active areas of hostilities” is a policy tool designed by the Obama administration to manage the rules of engagement in various conflict zones in which the U.S. is indefinitely involved. During his tenure, Obama designated parts of Iraq, Syria and Afghanistan to be active areas of hostilities.

Practically speaking, designating an area as an active area of hostilities allows the U.S. military to abide by less rules and vetting when engaging targets, giving local commanders much more autonomy and less oversight during operations. This means drones and deployed soldiers have less legal hurdles to clear before striking.

The real-world impact of those designations and looser battlefield rules have been immediate and devastating.

In Syria and Iraq, Trump’s policies and drone war led to a steep increase in civilian casualties caused by drone strikes. Airwars, an independent military watchdog, estimated that U.S. drone strikes killed between 7,500 and 12,077 civilians since 2014, with a sharp increase in early 2017.

One reason is because the U.S.-led coalition against ISIS began a campaign to recapture the heavily populated city of Mosul from ISIS around that time.

But Omar Mohammed, a Mosuli activist who lived in Mosul while it was controlled by ISIS and blogged under the pseudonym of Mosul Eye, told Al Bawaba that the coalition pursued an overly aggressive strategy that trapped ISIS inside congested, ancient areas of west Mosul, rather than letting the combatants leave the area. Airstrikes could not help but hit civilians trying to hide from the battle.

One airstrike hit a residential block filled with civilians that were huddled inside. As many as 200 were killed.

During the battle for Mosul, thousands of civilians were evaporated by U.S. drones, and the city was reduced to heaps of rubble.

In Somalia, the designation has led to a skyrocketing number of drone strikes.

 

(BBC)

The rate of U.S. strikes in Somalia have tripled since Trump’s presidency, causing civilian displacement in the process.

While many of the drone strikes have hit clusters of al-Shabaab soldiers, they do not have appeared to significantly hindered the group’s organization or operational capacities. In March 2019, Al Shabaab launched seven deadly attacks on Somalia’s capital, Mogadishu, and is reportedly gaining some power in neighboring Kenya.

At the same time the U.S. began ramping up drone strikes, the Trump team re-wrote the Obama-era rulebook for drone use outside of conflict zones.

The new Principles, Standards, and Procedures (PSP), which replaced Obama’s guidebook called the Presidential Policy Guidance (PPG), allows military commanders to strike targets which do not pose imminent threats to the U.S. Though this gives them greater leeway to hit militant networks in general and not just their soldiers, it also removes a key vetting procedure for strike targets.

If you’re the head of a regime observing these developments from afar, including the lower of drone export rules, they could all come as welcome news.

 

"Such a development will only lead to more insecurity and instability in already conflict-prone regions in the world.”

 

"If these drone operations will expand under the Trump administration and without any international condemnation of their use in extrajudicial killings,” Wim Zwijnenburg explained, “other states might follow suit as armed drones have seen a massive boom in exports and use across the Middle East and northern and central Africa.”

Because the U.S. is a key global trend setter in wartime conduct and international law, removing means of oversight, vetting and monitoring gives a justification for other states to follow suit or simply refuse to implement these transparency measures in the first place.

Over time, a precedent of minimal regulation could be set globally even as armed drones saturate military and militias arsenals. That saturation itself is partially the product of the U.S. all but forgoing its concern that drones could ‘end up in the wrong hands’ by demonstrating a willingness to sell drones to the highest bigger, no matter their human rights record or links to terror groups.

"More states now possess the deadly tools to target armed groups in remote areas, which also bring with them the risks of civilian deaths, but that [can] easily be hidden under [a] cloak of secrecy, “Zwijnenburg warned.

"Such a development will only lead to more insecurity and instability in already conflict-prone regions in the world.”

 

Getting Away With Murder

Philippines armed forces (AFP/FILE edited by Rami Khoury/Al Bawaba)

 

If you’re a dictator aspiring to rule with absolute impunity over a country, using a wide range of crimes against humanity, unconventional weapons and war crimes to keep your hold on power, then U.S. President Donald Trump’s foreign policy doctrine has some gifts for you. If you’re an aspiring international court struggling to hold those kinds of dictators to account; well, your moment will have to wait.

On March 15, U.S. Secretary of State Mike Pompeo announced the U.S. will deny visas to officials with the International Criminal Court (ICC) who are investigating possible U.S. war crimes committed in Afghanistan.

"The ICC is attacking America’s rule of law,” Pompeo explained. “It’s not too late for the court to change course and we urge that it do so immediately.” Pompeo then threatened economic sanctions on the ICC if it continued investigating the U.S.

The announcement came and went, eventually slipping behind the news cycle. But experts on international justice tell Al Bawaba the denial of visas will have lasting consequences, not just for the ICC, but for the global community’s struggle for universal accountability.

Pompeo’s announcement reflects the Trump Administration’s general disdain for international accountability and willingness to dismantle the same accountability norms former U.S. administrations established in the wake of the Holocaust during WWII.

Denying the ICC’s attempts to hold potential war criminals to account accelerates the deterioration of international human rights norms, which has been ongoing for decades.

For dictators however, Trump’s rebuke of the ICC is a welcome sign that they’ll be able to get away with crimes without the danger of an international court bearing down on them.

 

The ICC’s Potentially Global Moment

The International Criminal Court headquarters in the Hague, Netherlands (AFP/FILE)

The ICC was established in 2002 after 60 states ratified its founding treaty, the Rome Statute. Its sole purpose is to try those who commit crimes against humanity, genocide and other war crimes in a global court.

Over 100 states have since ratified the mandate of the ICC, including all of western Europe, Latin America, Canda, Mexico and Australia. Notable countries who are not part of the ICC are the U.S., Russia, China and Saudi Arabia.

Though its lofty ideal of global accountability is much-lauded, the court has long been criticized for its inability to expand its reach beyond warlords operating throughout Africa.

Almost every investigation it has conducted has been in Africa, with a focus on the Congo, Central African Republic, Kenya, Sudan and Libya. Arrest warrants it issues are rarely respected or acted upon, its indictments are functionally symbolic and some have noted that the court actually disrupts local accountability systems more than it augments them.

Its lack of securing convictions and jail sentences for presently dangerous dictators and warlords has further undermined the court’s credibility as an effective international mechanism through which justice can be sought.

The ICC has risked steadily losing the credibility it was based on, and has positioned itself on the shaky precipice of global irrelevance.

At its best the ICC could be seen as a symbolic monument to a Cold War-era version of international justice. At it worst, it has been a mechanism to enforce colonial punitive structures on fledgling local judiciaries.

This is why its Nov 2017 announcement that the ICC will be investigating war crimes potentially committed by U.S. soldiers and members of the CIA in Afghanistan came not just as a surprise to observers, but as a potentially momentous achievement for global justice.

The court, which has long-been insulated at the Hague and dismissed, signaled it was evolving and readying itself to confront the world’s greatest superpower.

In the ICC’s announcement, the court indicated it had garnered enough information to warrant a full investigation into potential “war crimes by members of the United States ("US") armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency ("CIA") in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004.”

The ICC also announced it would investigate actions committed by the Taliban and Afghan government forces.

Even if it results in no indictments or convictions, the investigation could stand as a warning to nations that no one is exempt from accountability.

 

Denying Accountability

Donald Trump and NSA John Bolton (AFP/FILE)

This moment has since become seriously jeopardized by the U.S.’ reaction, which initially was to threaten to arrest ICC judges and impose sanctions. Pompeo’s March 15 announcement takes it a step further by barring ICC access to the U.S., thus impeding the investigation.

"We are determined to protect American and allied civilian personnel from living in fear of unjust prosecution for actions taken to defend our great nation,” Pompeo said.

The “U.S. action to impose visa restrictions on certain ICC staff is an outrageous attempt to bully the court’s judges and deter scrutiny of U.S. conduct,” Elizabeth Evenson, Associate Director of International Justice Program at Human Rights Watch told Al Bawaba.

"At a time of rampant abuses around the globe, it sends exactly the wrong message to penalize war crimes investigators just for doing their job.”

Evenson added that while the ICC has issues, it represents an essential part of the international community’s attempts to establish a global rule of law.

The Trump Administration’s move is not without a historical precedent: the U.S. has maintained a stably antagonistic relationship to the international court since its founding.

In Aug 2002, just a few weeks after the ICC was established, then-president George W. Bush signed the American Service-Members' Protection Act. The law was nicknamed the ‘Hague Invasion Act,’ since it threatened to militarily intervene in any ICC attempt to arrest U.S. soldiers or officers. The law, which is still in effect, warns that the U.S. will use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

On top of that, John Bolton, who gained national prominence in the Bush Administration thanks to his hawkish stance against Iran and virulent opposition to the ICC, is now Trump’s National Security Adviser.

"Despite signs of a thaw between the International Criminal Court and the United States during the Obama presidency, there is nothing either new or necessarily unlawful about the U.S. trying to restrict the operation of the ICC,” argued Douglas Guilfoyle, Associate Professor of International and Security Law at the University of New South Wales.

"The ICC has jurisdiction to investigate war crimes or crimes against humanity alleged to have been committed within the territory of its member, Afghanistan, since 2003. As a non-party the U.S. is not obliged to assist those investigations, but it is hard to see how denying visas to ICC staff to enter the U.S. will have much impact when much of the evidence and most of the witnesses will be in Afghanistan,” he added.

Despite the flagrant and flamboyant rhetoric of the ‘Hague Invasion Act,’ there is reason to believe that Trump’s actions are more demonstrably dangerous than Bush’s.

"Through National Security Adviser John Bolton’s pledge to use “any means necessary” to protect [the] U.S. and its allies’ citizens from ICC prosecution and through Secretary of State Mike Pompeo’s additional, concrete step of restricting ICC personnel’s visas, the Trump Administration is demonstrating more hostility to the ICC than any of its predecessors,” explained Zachary Kaufman, a senior fellow at the Harvard University Kennedy School of Government and lecturer at Stanford Law School.

"While Bolton’s language echoes text of the American Servicemembers’ Protection Act, which President George W. Bush signed into law, the Bush Administration did not restrict ICC personnel’s visas and even eventually softened its stance towards the ICC,” he adds, noting that Bush eventually allowed the ICC to investigate the genocide in Darfur, Sudan.
 

The Global Implications

Sudanese president Omar al-Bashir (AFP/FILE)

The impact of the visa denial and other moves, while subtle now, will likely reverberate for years, imperiling years of consensus and legitimacy the ICC has tried to build and degrading the international community’s ability to compel compliance with rights norms

This is mainly because the ICC relies on voluntary member-state participation, and derives its power through the number and global stature of the nations that accede to it.

It also has an ideational mandate—that is, a mandate justified by its founding ideals, which are supposed to be shared by the global community. The more states that block ICC investigations, pull out of its jurisdiction and denounce it, the less ideational power it has and thus the more shaky its mandate becomes.

Eventually, if enough nations in the global community denounce it, it will disappear.

To be sure, the court has also been busy investigating the U.K. for potential crimes committed in Iraq, and the British have been more cooperative than the U.S. So hope is not yet completely gone as the ICC attempts to broaden its scope of cases it investigates.

But the U.S.’ overt obstruction efforts to ICC investigations not only disempowers the court, it also jeopardizes its ability to function in the long-term and threatens to dissolve the ideals upon which it was built.

"Trump's reinvigoration of an "America First" ideology means international norms are a nuisance—an impediment to furthering American interests. The ICC is the perfect embodiment of everything Trump detests in foreign policy terms,” Phil Clark, a Reader in Comparative and International Politics at SOAS University of London, where he is also the co-director of the Center on Conflict, Rights and Justice, told Al Bawaba.

 

Douglas Guilfoyle of the University of New South Wales thinks Trump’s actions against the ICC “send[s] regrettable signals that obstructing such independent investigations is legitimate, and provides cover to those who have done so such as President Duterte of the Philippines or President Kenyatta of Kenya.”

 

"He sees the ICC an unaccountable foreign institution, based in Europe and propagating European values, with the legal authority to pursue American officials.”

In this thinking, Trump accompanies other leaders who have acted to thwart the ICC’s investigative efforts.

In March 2009, the ICC issued an arrest warrant for Omar al-Bashir, who has ruled Sudan as a dictator for 30 years and attempted to summon Kenyan President Uhuru Kenyatta along with his right-hand man William Ruto. “Sudan and Kenya did everything they could to stymie the Court. This included barring ICC investigators from crime sites, killing and intimidating witnesses and refusing to hand over evidence,” Clark said.

Other nations also acted against the ICC: South Africa, which helped draft the Rome Statute, withdrew from the court in 2016, citing the desire to protect the region against efforts at regime change. Dozens more have outright ignored the ICC-issued arrest warrant for al-Bashir, allowing him to travel with relative ease around the world.

"So the U.S. now finds itself in this refined company of states that, when they feel their officials are threatened by ICC investigations, pull out all the stops to thwart the Court,” Clark added.

Rodrigo Duterte, a Trump ally and a brutal ruler of the Philippines who enacted a vicious policy of killing people by the thousands, pulled out of the ICC in March 2018 after the court announced it was investigating his supposed ‘war on drugs.’

Philippines leader Rodrigo Duterte surrounding by members of the Armed Forces of the Philippines (GMA Network)

Douglas Guilfoyle of the University of New South Wales thinks Trump’s actions against the ICC “send[s] regrettable signals that obstructing such independent investigations is legitimate, and provides cover to those who have done so such as President Duterte of the Philippines or President Kenyatta of Kenya.”

The U.S., as the world’s leading superpower, has an unparalleled ability to shape and break international norms. By denouncing international courts and accountability in favor of sovereignty, other nations throughout the world may be able to use the same rhetoric to escape ICC investigations.

What’s bad news for international justice is great news for those dictators and regime heads who have used violent methods against civilians to keep power. It’s also good news for other powerful countries that have committed crimes against humanity and fear an investigation to unearth its misdeeds.

These regimes and governments can rest assured knowing the global community’s attempts to build an international justice mechanism is languishing.

 

Overriding the Leahy Law

Beyond denying the ICC global jurisdiction, the White House also engaged in less formal means of degrading international accountability.

American military aid has, for decades, been regulated by the Leahy Law, which bars the U.S. from providing military assistance to states that violate human rights continuously and with impunity.

A massive military aid package was scheduled to go to Egypt in 2016 but was halted due to concern over the fact the aid would likely help the Egyptian regime better-target dissidents.

Egypt, under Abdel Fatah al-Sisi, has reporteldey made it a habit to secret disappear, torture and aassasinate human rights activists and opposition to Sisi. Human Rights Watch has described the political situation in Egypt as the “worst human rights crisis in the country in decades.”

Rather than continue to block the military aid, Trump unlocked it and gave it to Egypt unconditionally, flushing Sisi with $195 million while authorizing another $1.2 billion. A few days after the $195 million deal was announced, an Egyptian court sentenced 75 people to death for taking part in anti-government demonstrations in 2013.

Trump has also continued the long tradition of providing Israel with billions in military aid. In 2018, Congress passed a bill for the U.S. to provide Israel with $38 billion in military aid and high-tech weaponry over a decade, echoing Trump’s general call to boost ties with Israel.

Israel, meanwhile, has violently cracked down on protests in Gaza, killing dozens and injuring thousands of demonstrators. Israelis have also rapidly expanded illegal settlements into the West Bank, and the Israeli government is poised to legally annex them in violation of international law.

The current White House administration, like its predecessors, has similarly boasted of signing major military deals with Saudi Arabia, whose government routinely violations human rights.

Providing military aid to states, no matter their human rights record, concedes a powerful diplomatic tool that can exert pressure over those states to change their behavior. It also sends the signal that these states can continue violently repressing dissidents without fear of losing their support from the U.S.

 

A Lasting Foreign Policy Doctrine

The White House (Shutterstock)

All of these moves only represent a fraction of the total measures the White House has taken to make violence easier to commit and get away with.

Other dishonorable mentions include:

Tearing up the Intermediate-Range Nuclear Forces Treaty  (INF) with Russia that banned short and medium-range land-based ballistic missiles, prompting Putin to launch new ballistic missiles programs. The Treaty was heralded as a major breakthrough in nuclear non-proliferation, and its abrogation in 2018 moved the Doomsday Clock forward 30 seconds, marking two minutes to midnight.

Arming Ukranian army elements, including a 3,000-man strong neo-nazi battalion called Azov, whose leader thinks Ukraine’s main purpose on Earth is to “lead the White Races of the world in a final crusade…against the Semite-led Untermenschen.”

Reversing a Bush-era decision to stop keeping cluster munitions with a high dud-rate. The move “raising serious questions about its regard for the lives of civilians in war zones,” Rasha Abdul Rahim from Amnesty International told Al Bawaba.

"This was a profoundly retrograde step that puts the US way out of line with the international consensus – cluster munitions are banned by more than 100 countries due to their inherently indiscriminate nature and the risks they pose to civilians,” she added.

Cluster munitions are bombs filled with smaller bomblets, that are used almost exclusively to indiscriminately kill civilians. The U.S. has not acceded to international conventions calling for their ban and has supported regimes that use them in warzones. For example, both Obama and Trump have continued militarily supporting Saudi’s intervention in Yemen, which has relied on cluster bombs.

These policy decisions have been covered singularly, often in isolation from one another. Some of them were continuations of Obama or Bush policies, while others undid previous administrations’ rules.

They generally don’t make it into the wider narrative explaining how Trump governs, but they form a cohesive foreign policy approach that can be understood and taken advantage of by other states.

While ‘anti-Trump’ media outlets like MSNBC and The New York Times’ focused their coverage on wild conspiracies alleging that Trump was a Russian asset or that he may have dementia, the Trump team was quietly making conflict zones more dangerous for civilians. While outlets like CNN frivolously fact-check Trump’s tweets, his administration has been commodifying sensitive nuclear technology and small arms, allowing them to go to the highest bidder.

Easing the rules of war and diminishing norms of accountability are hallmarks of Trump's foreign policy and as such, they will continue for years to come.

It’s a dream come true for rogue regimes, but a nightmare for the rest of us.

 

This article is the final product of a months-long investigation of Trump's foreign policy. For individual articles that helped produce this piece, see:

The U.S. is Unwriting its Own Rulebook for the Sale and Deployment of Drones
The US’ Thwarting of the ICC Could Make it Easier to Commit War Crimes 
American-Made Nuclear Tech May Soon Be Saturating Middle East Grey Markets

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