Biden Administration Rescinds Sanctions On International Criminal Court
In a letter to Congressional leadership, President Biden announced today that his administration is ending sanctions and visa restrictions on officials at the International Criminal Court (ICC).
This news is a welcome announcement for the world’s court of last resort, as well as victims of genocide, war crimes, and crimes against humanity who look to the court for justice.
It is also a reminder that civil society advocacy works. In February, Operation Broken Silence joined 70+ NGOs, faith-based groups, and academic institutions in calling on the Biden Administration to repeal these sanctions and restrictions. Our voices were heard.
Rather than being seen as a major step forward for justice, this decision should be understood as a return to the status quo.
The relationship between the United States and ICC has always been strained.
The US participated in the negotiations that created the ICC; however, in 1998, the US voted against the Rome Statute, the Court’s founding treaty. President Clinton signed the Rome Statute but did not submit the treaty to the US Senate for ratification.
In 2002, President Bush “unsigned” the treaty, sending a message that the US would not ratify. The Bush Administration promptly began a global campaign against the ICC, but these efforts were largely ineffective.
By 2005, US posture toward the court began to shift to a more neutral position. That year, the US refused to veto a United Nations Security Council request that the ICC open an investigation into the mass atrocity crimes being committed in Darfur, Sudan.
Underneath the Obama Administration in 2011, the US government’s stance toward the ICC shifted further to being modestly supportive. The US voted for the Security Council referral of the deteriorating situation in Libya to the Court for further action. And in 2012, American Special Forces and diplomats played critical roles in turning over two ICC suspects (Bosco Ntaganda and Dominic Ongwen) to the Court.
This progress shifted dramatically underneath the Trump Administration. In 2018-2019, administration officials and the President himself disparaged the Court every time the topic came up. The US imposed visa bans on ICC officials and, shockingly, Secretary of State Mike Pompeo publicly threatened — by name — two ICC staffers. In a 2020 Executive Order, President Trump sanctioned ICC officials and threatened those who assisted the Court in their investigations, including American citizens, a move that severely harmed the Court’s efforts.
Underneath President Biden, US policy toward the ICC appears to be shifting back to the neutral-modestly supportive stance. In other words: the status quo. The nearly two decades-long tensions between the US and the ICC will most likely remain for now.
This tension is evident in President Biden’s letter to Congressional leaders:
I have determined that, although the United States continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the United States and its allies absent their consent or referral by the United Nations Security Council and will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.
It is also evident in the press release from the Court’s Public Affairs Unit:
The Court is mindful that the United States has traditionally made important contributions to the cause of international criminal justice. The Court stands ready to reengage with the US in the continuation of that tradition based on mutual respect and constructive engagement.
In the fulfilment of its independent and impartial judicial mandate, the Court acts strictly within the confines of the Rome Statute, as a Court of last resort, in a manner complementary to national jurisdictions. The Court relies on the support and cooperation of its States Parties, representing all regions of the world, and of the international community more broadly.
In summary, this is akin to old high school acquaintances — who haven’t seen each other in years — bumping into each other. It’s a little awkward and no one really knows what to say or do next, but it still feels warm and fuzzy.
The United States should be doing more to support the ICC.
Because the ICC is a standing international institution, US policy will inevitably evolve over time based on current and future events. Both the good and the bad can be undone at any given time based on the occupant of the White House.
Still, the Biden Administration really should come up with an array of options that are more supportive of the ICC, even though it’s unlikely the US Senate will ratify the Rome Statue any time soon. During the Obama Administration, the US government found some creative ways to be more supportive of the ICC’s important work (see above section), so doing more is not without precedence. The State Department and FBI already have multiple international justice outlets built into their respective institutions. Aligning some of those outlets with specific ICC cases the US has interests in isn’t exactly a crazy idea.
One can also argue that the Biden Administration’s campaign to restore US credibility around the globe would receive a boost if the US became more supportive of the ICC. 123 countries are party to the Rome Statue, including many key US allies who vocally support the Court. Taking a more proactive and positive approach to the ICC would undoubtedly help heal some wounds in America’s bilateral relationships.
All that to say, moving back to the status quo is better than staying the course of the Trump Administration.
We do hope that the Biden Administration and Congressional leaders use this announcement as a springboard to improve relations with the ICC and begin working on longstanding concerns between American and Court officials. It’s past time for progress.
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