Mark Kersten
Al-Jazeera / March 5, 2021
How will the new administration of President Joe Biden approach the ICC ?
If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.
Finally, the Trump administration is gone, and its vicious attacks on the International Criminal Court (ICC) are over. But before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?
All signs point towards a return to piecemeal engagement, where Washington uses the court when it suits its interests and undermines it when it does not. Biden has said the United States is “back”. But on international justice, there’s a need to be different – and better.
A tumultuous relationship
The relationship between the US and the Hague-based court has always been tumultuous.
While the US has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the court and also been affected by it.
President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.
When George W Bush came to power, he immediately embarked on a hostile campaign against the ICC. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised the US president to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorisation, which meant Washington could use military force against the court, led the law to be nicknamed “the Hague invasion act”.
The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.
When the Obama administration took over, it stated its intent to “positively engage” with the court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with it. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.
During the Obama years, American cooperation was invaluable for the court. By sharing evidence and ensuring that the court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.
But the Obama administration’s partial engagement with the court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the court’s reach, while those that lacked US support were readily investigated by ICC.
Then came Donald Trump. The Trump administration was hostile towards the court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one-time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court”.
Trump was hostile to the ICC because he feared that the court may soon start issuing warrants for US officials following its investigation into alleged war crimes in Afghanistan. Moreover, he wanted to thwart any move by the court to open an investigation into alleged Israeli atrocities in Palestine.
To ensure US officials and allies remain beyond the reach of the ICC, the Trump administration not only embarked on a propaganda campaign against the court, but also took action to intimidate its staff. It issued sanctions against the ICC’s Chief Prosecutor Fatou Bensouda and the head of its Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko.
A new chapter in US-ICC relations?
With Joe Biden in the White House, it is certain that Washington will not be as hostile towards the court as it was during the Trump era. Many are optimistic that the Biden administration will pave the way for closer cooperation between the US and the ICC. But expectations need to be measured.
The ICC and Washington remain on a collision course over the investigation into the alleged atrocities in Afghanistan. Like every administration before it, this one will not tolerate ICC warrants against American citizens involved in alleged war crimes in Afghanistan. Moreover, even under Biden’s leadership, Washington will not support any investigation into the alleged atrocities committed by its ally Israel in Palestine.
Biden already demonstrated his stance on these issues, and his ambivalence towards the ICC, in both subtle and obvious ways. Biden has a close relationship with former President Bush, who was in the White House when all of the alleged war crimes in Afghanistan under investigation by the ICC were committed. While several Biden administration officials have said that they will “take action” against those responsible for the post-9/11 torture programme, Biden feted Bush during and after his inauguration, sending a clear message to the international community that he has no intention of holding him or his administration to account for their alleged crimes. Biden is also a staunch supporter of Israel and repeatedly said he is proud of Washington’s special bond with Tel Aviv. While he is not as protective of the current Israeli leadership as Trump, there is no indication that his administration will abandon the longstanding US policy of protecting Israel from being prosecuted for its alleged crimes against the Palestinians at the ICC.
Biden also decided not to issue an executive order to immediately rescind the sanctions his predecessor imposed on ICC staff. Instead, the Biden State Department has placed the sanctions under “review”. This can be read two ways. On the one hand, it may be a sign that the administration is preparing to reverse course. On the other hand, it can be viewed as an effort to appear supportive of global criminal justice without actually doing anything. Indeed, what is there to review? Sanctions are a tool that should be used against dictators and war criminals, not people who are working to hold them to account.
By not immediately rescinding the sanctions against Bensouda and Mochochoko Biden sent a clear message to The Hague: Trump may be gone, but Washington can still use coercive measures to bring the court in line if it dares to proceed with investigations and prosecutions that are not in line with US interests.
Like all his predecessors, Biden is less interested in supporting the ICC than catering to his own base. If a bi-partisan anti-ICC letter issued last year by US senators is any indication, that base is still willing to attack the ICC over prospective trials of American political and military figures.
For now, all signs indicate that Biden’s relationship with the ICC will be similar to Obama’s – a partial and conditional cooperation, where the US helps and supports the ICC when it serves its interests, but undermines the court whenever it voices a desire to investigate the alleged crimes of the US and their allies.
Since winning the presidential election, Biden has insisted that “America is back”. Indeed, when it comes to Washington’s approach to international justice, the hypocrisy that dominated the Obama years appears to be back in action. That must change if Biden is to restore America’s reputation as a moral and political leader on the world stage.
Mark Kersten is a Fellow at the Munk School of Global Affairs, University of Toronto
