Sari Bashi
Foreign Policy / March 3, 2021
Washington’s aversion to the court’s recent decision on Palestine is emblematic of a fundamental disconnect in U.S. foreign policy.
In his Feb. 4 foreign-policy address, U.S. President Joe Biden vowed to make human rights and multilateralism cornerstones of his approach to global affairs. But that’s a pledge he appears to have forgotten just a day later, on Feb. 5, when the pre-trial chamber of the International Criminal Court (ICC) ruled that ICC prosecutor Fatou Bensouda has the authority to investigate possible war crimes and crimes against humanity perpetrated in the West Bank and Gaza Strip—by Israeli and Palestinian personnel alike. Biden’s State Department immediately criticized the court’s scrutiny of Israeli activity—though it had commended its probe into an Ugandan warlord hours earlier.
Restoring U.S. credibility around the world—which Biden says he will do—means resetting the United States’ relationship with the ICC, the premier body of international criminal justice. Ideally, Washington would join the court; at the very least, it should refrain from interfering in the ICC’s scrutiny of U.S. nationals and allies like Israel. But all signs indicate that Biden is reverting to the Obama-era modus operandi: selective support for the ICC, which undermines U.S. credibility and threatens the viability of the court itself.
The ICC’s Feb. 5 ruling was the latest move toward opening an investigation into the situation in the Palestinian territories, including the conduct of hostilities during the 2014 Gaza war and Israeli settlements in the occupied West Bank, which the Rome Statute—the ICC’s founding document—defines as a war crime. Bensouda opened a preliminary examination into “the situation in Palestine” in 2015 and concluded it in late 2019, but she chose to seek judicial approval to open a full investigation due to lingering questions about jurisdiction over Palestine.
The ICC has jurisdiction over crimes committed in the territory of a state party, by nationals of a state party, and those referred to the court by the U.N. Security Council. Until recently, Palestinians were unable to bring their case to the state-centric court because of doubts about Palestinian statehood. In 2009, the ICC prosecutor rejected a Palestinian bid to join the court, citing uncertainty about the status of Palestine and lack of guidance from the U.N. General Assembly on how to proceed.
In 2012, however, the U.N. General Assembly—over U.S. opposition—overwhelmingly recognized Palestine as a state, which paved the way for Palestine to join a number of international institutions, including the ICC. Key members of the global community, including the United States, continue to reject Palestinian statehood, and Washington continually uses its veto on the U.N. Security Council to prevent Palestine from becoming a member of the United Nations.
Palestine joined the ICC in 2015, triggering Bensouda’s preliminary examination. But because Gaza and the West Bank are occupied by Israel—and Palestinians lack control over their own land—there continue to be questions about the true bounds of Palestinian statehood. Now, the ICC pre-trial chamber has determined that, for the purposes of ICC jurisdiction, Palestine qualifies as a state whose territory extends to the Israeli-occupied West Bank and Gaza Strip. The U.S. State Department immediately objected to the announcement.
The United States has always had a complicated relationship with the ICC. In 2000, U.S. President Bill Clinton signed but failed to ratify the Rome Statute and become a party to the nascent court, citing concerns about the possibility of “unfounded” prosecutions of U.S. nationals.
Since then, U.S. posture toward the ICC has vacillated between Democratic support for the court’s prosecution of anyone who is not a U.S citizens or U.S. ally and near-total Republican opposition. In May 2002, the George W. Bush administration announced that the United States would not ratify the Rome Statute and, shortly thereafter, Congress passed legislation barring U.S. state, local, and federal agencies from cooperating with the court in prosecuting U.S. nationals.
The Obama administration participated in ICC meetings, helped turn over African nationals wanted by the court, and repealed George W. Bush-era legislation that punished states that did not agree to shield U.S. officials from prosecution. President Barack Obama also voted for a February 2011 —then in the throes of a revolution against the regime of Muammar al-Qaddafi—to the ICC. Here, Obama went further than George W. Bush, who merely refrained from vetoing a similar referral on atrocities in Darfur in March 2005.
Still, while Obama was more conciliatory toward the ICC than his predecessor, his engagement with the court was explicitly selective, described by then-State Department Legal Advisor Harold Koh as “a pragmatic, case-by-case approach.” According to Koh, as of 2012, the United States supported the ICC’s ongoing formal investigations and prosecutions—all of which involved African suspects and defendants.
U.S. President Donald Trump, by contrast, adopted a consistently hostile approach toward the ICC. Following a March 2020 judicial decision allowing Bensouda to investigate possible war crimes perpetrated by U.S. personnel and others in Afghanistan, Trump issued an executive order declaring that the court’s “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies” constituted a national emergency. Trump imposed broad travel bans and asset freezes on Bensouda and another senior ICC official, as well as their families. Such sanctions are usually slapped on human rights abusers, not the lawyers who bring them to justice.
It remains to be seen whether Biden will lift the sanctions on Bensouda and her colleague—and how her scrutiny of potential serious crimes in Gaza and the West Bank would imperil that relief. There are early indications that Biden intends to restore Obama’s policy of supporting the ICC—as long as it exempts U.S. personnel and allies from scrutiny.
Immediately after the Feb. 5. pre-trial chamber decision on Palestine, State Department spokesperson Ned Price expressed “serious concerns” about the ICC investigating Israeli nationals, though it will investigate Palestinian nationals as well. Price said the court’s jurisdiction should be limited to nationals of states that consent to investigation or to U.N. Security Council referrals. But this is a fundamental misreading of the Rome Statute: It authorizes investigations in the territory of state parties, irrespective of the alleged perpetrators’ nationality. This is why the Trump administration was so shaken by the prospect that U.S. personnel could be prosecuted for serious crimes committed in Afghanistan.
Moreover, Price’s rationale for opposing the Palestine investigation—the lack of Israeli consent—could be raised just as easily by militias that commit atrocities in the territories of ICC member states. Indeed, on Feb. 4, a day before criticizing the Palestine investigation—and the day of Biden’s foreign-policy address—the State Department welcomed the ICC’s decision to convict Lord’s Resistance Army (LRA) commander Dominic Ongwen for atrocities committed in Uganda—calling the verdict “a significant step for justice and accountability.” Like Israel and the United States, the LRA did not consent to an ICC investigation. Instead, its commander put himself within the ambit of the ICC by committing war crimes and crimes against humanity within the territory of a member state.
Since its founding in 2002, the ICC’s failure to prosecute individuals from outside of Africa—particularly people from powerful, Western-allied countries—has been a central factor undermining its legitimacy. Although 123 states are members of the ICC, the court has thus far brought only Africans to trial, in 30 cases arising from nine country situations. Of the 13 situations currently under formal investigation, 10 are in Africa. That imbalance has led to charges of neo-colonialism, though the court’s docket reflects more distortions in global power dynamics than overt racism.
Most ICC prosecutions have taken place at the request of the African state in which the crimes took place—in some cases due to post-conflict institutional weaknesses in the domestic court system—rather than by U.N. Security Council referral. The latter process has only been invoked in the ICC’s investigations in Libya and Sudan—countries that lack friends among the council’s five permanent members (China, France, Russia, the United Kingdom, and the United States), who can easily wield their veto power to block investigations of themselves or their allies.
The problem is not that the ICC prosecutes Africans. The problem is that so far, it hasn’t prosecuted anyone else. Even those who support the ICC have called on it to do more in other regions. Not only is expanding scrutiny a matter of justice, but it’s also a question of legitimacy. In 2016, South Africa, Burundi, and Gambia announced they would leave the ICC, alleging bias. Of the three, only Burundi actually ended up quitting the court, but such initiatives are nevertheless emblematic of a brewing crisis at the ICC.
Bensouda’s preliminary examination in Palestine is an attempt to diversify the court’s docket; it’s one of seven preliminary examinations outside of Africa from a total of nine preliminary examinations currently underway. That means future prosecutions may cover a broader geographical range—if the examinations are permitted to ripen into investigations and trials.
But the Israeli government is mounting pressure on the United States to shield its officials from scrutiny. Israeli diplomats have launched a campaign asking allies to pressure Bensouda not to investigate, despite her authorization to do so. The Israeli daily Haaretz reported that the acting U.S. ambassador to Israel, Jonathan Shrier, gave assurances of U.S. assistance in a recent phone call with Israeli Foreign Minister Gabi Ashkenazi.
Even though the United States is not a member of the ICC, it can exert pressure on the court through allies in the Assembly of States Parties responsible for funding the court and selecting its officials or by initiating and maintaining orders and statutes that punish cooperation with the court. Washington could also push for the U.N. Security Council to use its Chapter VII authority to suspend an investigation in Palestine.
Of particular concern is the possibility that—after punishing Bensouda and her family with sanctions that make even mundane bank transactions difficult—the United States will try to intimidate the court’s incoming prosecutor too. On Feb. 12, member states chose Karim Khan, a British criminal and human rights lawyer with extensive prosecutorial and defensive experience, to succeed Bensouda in June.
There is still hope that an ICC investigation, and perhaps ICC prosecutions, will finally bring a measure of accountability for victims of serious international crimes in Gaza and the West Bank. Victims include Palestinians displaced from their homes by Israeli settlements, civilians in Gaza with no protection from unlawful attacks on their bodies and property, and civilians in southern Israel, bombarded with rockets fired at them indiscriminately or deliberately. Any prosecution outside Africa would move the ICC one step closer to becoming truly international.
How the United States approaches the ICC in the coming weeks and months will signal how serious Biden is about rehabilitating the United States’ moral leadership. It’s time he realizes that resetting U.S. foreign policy requires reforming and decolonizing international criminal justice—in addition to domestic criminal justice—by allowing the ICC to prosecute U.S. allies and U.S. personnel. This can be a multistep process: First, rescind sanctions against ICC officials, then refrain from interfering in the work of the new prosecutor, and, ultimately, join the ICC. At stake is not just Biden’s credibility but also the future of the court.
Sari Bashi is a human rights lawyer and the research director at Democracy for the Arab World Now
