On June 11, President Donald Trump issued an executive order declaring a national emergency. Is the emergency the coronavirus pandemic, which has killed 450,000 people worldwide, including 110,000 in the US? Is it racist cops killing Black Americans? Is it the nation’s sky-high unemployment and the threat of a second Great Depression? No, no, and no. It’s the International Criminal Court’s investigation into war crimes in Afghanistan.

It does not matter to Trump that ICC Chief Prosecutor Fatou Bensouda is investigating all the belligerents in the conflict—the Taliban included—not just the US. Trump hates any “globalist” institution or international agreement that threatens to limit America’s absolute freedom of action. Since coming into office, Trump has torn up one international agreement after another. Trump took the US out of the Paris Climate Accord and Obama’s nuclear deal with Iran. In 2018, Trump withdrew the US from the UN Human Rights Council. In 2019, Trump withdrew from the Intermediate-Range Nuclear Forces (INF) Treaty with Russia which had been negotiated by President Ronald Reagan. Then, on April 26, 2019 at a convention of the NRA, Trump gleefully announced that he was withdrawing the US signature from the Arms Trade Treaty (“international gun control,” the NRA calls it). Trump has talked about taking the US out of both the World Trade Organization and NATO (both good ideas).

Trump can’t take the US out of the ICC because the US never joined. (President Bill Clinton signed the Rome Statute, the treaty which created the ICC, but did not submit it to the Senate for ratification.) Trump can, however, throw a monkey wrench into the Court’s Afghanistan investigation. To do so, Trump has conjured up a national emergency. That may seem puzzling, inasmuch as Trump can keep ICC investigators out of the US simply by denying them visas. In fact, the State Department revoked Chief Prosecutor Bensouda’s visa in April last year. One month earlier, Secretary of State Mike Pompeo announced that visas for ICC staff would be revoked or denied.

Simply keeping ICC personnel off US soil, however, won’t stop the investigation, which is what Trump wants. William Burke-White of the Brookings Institution points out that ICC personnel don’t need to enter the US to conduct their investigation. So Trump, invoking the 1977 International Emergency Powers Act (IEEPA), has ordered economic sanctions on ICC personnel. The IEEPA allows the president to impose economic sanctions, but only in the event of war or national emergency. So Trump has conjured up a handy national emergency.

Burke-White writes that even sanctions are likely to have only “minimal impact,” but may make the ICC even more determined to pursue the investigation. The sanctions can still do damage, however. The executive order imposes sanctions not just on ICC personnel, but on their families. And under section 1(a)(i)(C) of Trump’s order, anyone who provides the ICC investigation with “material support” can be sanctioned. This potentially includes NGOs, human rights lawyers, and academics.

No End to Impunity

The executive order asserts that ICC actions “threaten to infringe upon the sovereignty of the United States” (ignoring the fact that the US tramples on the sovereignty of other nations all the time). Secretary of State Mike Pompeo, who derides the ICC as a “Kangaroo court,” says that the ICC lacks the due process guarantees afforded by the American criminal justice system. These are high-sounding objections to the ICC. But we know what American officials are really thinking. American officials are afraid that they themselves will wind up in the dock.

The can, theoretically. Noam Chomsky has said that “If the Nuremberg laws were applied, then every post-war American president would have been hanged.” And not just presidents. The Just Security website observes that Secretary of State Mike Pompeo could be liable for war crimes and crimes against humanity committed between January 2017 and April 2018 when Pompeo was CIA Director. Just Security cites a 2019 report from Human Rights Watch on war crimes committed during night raids in Afghanistan. Paramilitaries trained, equipped, and supported by the CIA were responsible for assaults, forcible disappearances, summary executions, and extraordinary renditions (what you or I less coyly call “torture”). Sometimes US personnel accompanied the paramilitaries. At other times, US military transported these forces by helicopter or provided air support. These lawless operations took a heavy toll on Afghan civilians.

It’s entertaining to picture Trump or Pompeo (or George W. Bush or Dick Cheney) in orange coveralls, but it’s not likely to happen. The US has ways of applying pressure against the ICC. The US can threaten to bow out of UN peacekeeping operations, a threat President George W. Bush made in 2002. The US can cut off foreign aid.

If all else fails, there’s always force. The American Service-Members’ Protection Act of 2002 empowers the president to use “all means necessary and appropriate” to liberate Americans held by the ICC. That includes military force, earning the law the nickname the “Hague Invasion Act.”

Friends of the US are also guaranteed a “Get Out of Jail Free” card. The June 11 executive order says that the US will resist ICC actions against “countries that are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction.” Whoever can that mean? The order doesn’t say, but Mike Pompeo has. “We’re also gravely concerned about the threat the court poses to Israel,” Pompeo said on June 11, the same day as Trump’s executive order. “The ICC is already threatening Israel with an investigation of so-called war crimes committed by its forces and personnel in the West Bank and in the Gaza Strip.”

The ICC was established in order to end impunity for war crimes and crimes against humanity. Trump’s executive order proves that that goal is still a long way off.