Opinion

For working to support global justice, I could face U.S. sanctions

Canadian government needs to push back against President Donald Trump's executive order subjecting 'foreign persons' to sanctions if they support the work of the International Criminal Court, writes Margaret M. deGuzman.

Professor among those suing U.S. over sanctions aimed at International Criminal Court's supporters

A view of the headquarters of the International Criminal Court in The Hague, Netherlands. People who work with the ICC are suing the Trump administration over an executive order that says 'foreign persons' can be subject to U.S. sanctions if they support the court's investigations into U.S. citizens. (Mike Corder/Associated Press)

This column is an opinion by Margaret M. deGuzman, a James E. Beasley Professor of Law and co-director of the Institute for International Law and Public Policy at Temple University's Beasley School of Law. A dual Canadian-U.S. citizen, she teaches and studies international criminal law, with a focus on the International Criminal Court. For more information about CBC's Opinion section, please see the FAQ.

As a law professor, I have devoted my professional life to teaching about, advocating for, and advancing justice with regard to war crimes and crimes against humanity. Now, my dual Canadian-U.S. citizenship has made me a special target for the Trump administration's efforts to undermine the quest for global justice.

President Donald Trump issued an executive order in June subjecting "foreign persons," which can include dual citizens as well as other Canadians, to sanctions if they support the work of the International Criminal Court (ICC).

The order is based on the U.S. administration's preposterous claim that the ICC's investigation of war crimes allegedly committed by Americans in Afghanistan constitutes a threat to U.S. national security. To guard against this supposed threat the administration has used a tool often employed to combat terrorism, and levied sanctions against supporters of the ICC.

If I am designated under the order, the U.S. government can freeze my assets, restrict my travel, and those who interact with me can be imprisoned for up to 20 years. All for helping an institution whose mission, in the words of its statute, is to "put an end to impunity" for "unimaginable atrocities that deeply shock the conscience of humanity."

Attorney General William Barr, right, speaks as Secretary of State Mike Pompeo looks on during a joint briefing on June 11 at the State Department in Washington, regarding the executive order signed by President Donald Trump aimed at the International Criminal Court. (Yuri Gripas/Pool via AP)

In the various spaces in which I have worked to help bring those who have committed atrocities to account, I have always been proud to say that I am Canadian, but I have sometimes felt ashamed of my association with the United States. This dichotomy in my feelings about my two countries has never been stronger than it is now.

Canada has traditionally been a leader in the quest for global justice. A Canadian diplomat chaired the conference where the ICC was created in 1998, and the Canadian delegation to the conference led a group of states that joined together to advocate for a strong, independent international prosecutor. Canada was the first country to adopt legislation implementing its commitment to the ICC into national law, and has provided the Court with financial and political support since its creation.

The U.S. record, on the other hand, has been largely disappointing.

The U.S. was one of seven countries that voted against the creation of the ICC. The others were China, Iraq, Israel, Libya, Qatar, and Yemen – hardly the best company to be in regarding issues of human rights. And early on, the administration of President George W. Bush actively sought to undermine the Court, bullying other countries into agreeing not to cooperate in cases involving U.S. citizens.

That stance eased in Bush's later years, and under President Barack Obama the U.S. posture toward the Court shifted to one of positive engagement. Even under Obama, however, the U.S. never gave the ICC its full support and certainly never opened the door to joining the Court, a move that would have subjected all U.S. citizens to ICC jurisdiction.

I have long been ashamed of the U.S. exceptionalism that proclaims that even though most of Europe, Africa, and Latin America have joined forces under the ICC to investigate and prosecute serious crimes that threaten our common humanity, the U.S. will not participate if there is any chance a U.S. citizen could be prosecuted without its consent.

In addition to that shame, I now feel fear.

I fear that Trump's reckless actions will undermine an institution that so many have worked so hard to build and that, despite its flaws, has so much potential to contribute to a better world.

I fear that those who have started to feel deterred from torturing children and raping women under cover of war will be emboldened to commit such crimes by the knowledge that one of the world's most powerful governments is trying to destroy the institution that could hold them accountable.

And I fear that any efforts I make to support the work of the ICC could result in what some have called "civil death" for me and my family – the freezing of our assets, and worse.

These fears have led me, along with several others who face this situation, to take the unprecedented action of suing the Trump administration and challenging the executive order. The Canadian government should support our efforts.

International Criminal Court prosecutor Fatou Bensouda's decision to open a case into alleged Afghanistan war crimes angered the Trump administration. (Bas Czerwinski/The Associated Press)

After the executive order was issued, Canada joined a large number of countries in proclaiming that its support for the ICC was "undeterred by any measures or threats against the Court, its officials and those cooperating with it."

That statement was much appreciated, but it is just rhetoric.

Canada has an opportunity to go beyond making statements, by actively defending its own citizens and the Court it helped create. The Canadian government should step up and demonstrate its commitment to global justice by publicly vowing to protect Canadians who could be targeted with sanctions because of their work with the ICC.

Never before have Canadians faced sanctions for their dedication to international justice, and this threat will remain in force until the U.S. executive order is formally withdrawn. Canada should make it absolutely clear to the U.S. government that any efforts to sanction Canadian citizens for supporting the work of the International Criminal Court will have consequences of their own.


About the Author

Margaret M. deGuzman is a James E. Beasley Professor of Law and co-director of the Institute for International Law and Public Policy at Temple University's Beasley School of Law. A dual Canadian-U.S. citizen, she teaches and studies international criminal law, with a particular focus on the International Criminal Court.

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