US President Joe Biden’s election victory has raised the prospect of increased United States support and engagement with the International Criminal Court (ICC).
Many observers cited Biden’s emphasis on multilateralism and his support for the international tribunal as ranking Democrat on the Senate Committee on Foreign Relations as positive signs.
But the Biden administration has not revoked former President Donald Trump’s September 2020 executive order that imposed sanctions on ICC personnel, including prosecutor Fatou Bensouda, raising fresh questions about what policy Biden plans to pursue.
“I think there was an expectation that [the lifting of sanctions] would be automatic, and not only would the removal of the existing sanctions be fait accompli, but the actual executive order would be rescinded,” said William Schabas, a professor of international law at Middlesex University in London.
The Trump-era sanctions were imposed after the two-decade-old tribunal launched an investigation into abuses committed by various actors in Afghanistan, including those by US military and CIA personnel that had been documented in previous domestic and international probes.
That ongoing investigation, and the court’s announcement on Wednesday that it was opening an investigation into alleged crimes in the occupied Palestinian territories, could complicate Biden’s approach, observers told Al Jazeera.
Still, “there’s a distinction between disagreeing with the decision of the ICC and unfairly punishing ICC officials in ugly, thuggish ways”, Sari Bashi, a human rights lawyer and research director at Democracy for the Arab World Now (DAWN), told Al Jazeera.
“Biden doesn’t have to agree with every decision the prosecutor makes in order to say that the US should not be sanctioning human rights defenders.”
In early February, the Biden administration had praised the ICC for convicting Dominic Ongwen, a commander of the Lord’s Resistance Army (LRA), for war crimes committed in Uganda in the early 2000s.
Shortly after, the administration said it had “serious concerns” over the tribunal’s determination that the occupied Palestinian territories fall under its jurisdiction, paving the way for its recently announced war crimes investigation that will look into the actions of Palestinians and Israelis.
Secretary of State Antony Blinken said the US “firmly opposes and is deeply disappointed” by the court’s probe, adding the US “remains deeply committed to ensuring justice and accountability for international atrocity crimes” and recognises “the role that international tribunals such as the ICC can play”.
Prior to the court’s announcement, Israeli Prime Minister Benjamin Netanyahu had reportedly urged Biden during their first phone call on February 17 to maintain US sanctions on the ICC officials.
Bashi said Biden will likely be under “tremendous pressure, not only from Israel, but from Israel’s allies” to maintain pressure on the ICC in light of the investigation.
In February, 80 non-governmental, faith-based, and academic organisations across the globe called on the Biden administration to remove the sanctions, which were also imposed on a senior member of Bensouda’s office, Phakiso Mochochoko, and anyone who “materially assists” the officials.
“These actions were an unprecedented attack on the court’s mandate to deliver justice and the rule of law globally, an abuse of the US government’s financial powers, and a betrayal of the US legacy in establishing institutions of international justice,” the groups said in an open letter.
“Keeping in place the executive order authorising sanctions would be inconsistent with the new administration’s laudable commitments to respecting the rule of law and pursuing multilateral cooperation in support of US interests,” it said.
Prospects of change
Biden’s victory in November of last year had sparked hope for a change in policy towards the ICC compared with Trump, who took an antagonistic approach to the tribunal, as he did with most international organisations.
But the US historically has been largely wary of The Hague-based court, which is the only permanent court with jurisdiction to prosecute cases of genocide, international crimes, war crimes, and crimes against humanity.
In 2000, former President Bill Clinton signed the Rome Statute, the governing and foundational treaty of the court, a preliminary step in joining the treaty, which was never ratified by the US Senate. President George W Bush later “unsigned” the treaty, signifying he would not support ratification.
Joining the court, which would require a two-thirds majority in the Senate, remains an unlikely prospect.
Still, relations between the US and the ICC reached a high during Barack Obama’s presidency.
Brianne McGonigle Leyh, a professor at the Netherlands Institute for Human Rights at Utrecht University, said the Obama administration supported some aspects of the court’s work while maintaining “an underlying belief in the superiority of the US justice system and in the pre-eminent position of the US globally”.
Under what it dubbed “positive engagement”, the US helped turn over to the court two fugitives; supported the UN Security Council’s referral of Libya to the tribunal, and collaborated with ICC members on some aspects of investigations.
“I still maintain hope that the Biden administration will return to the engaged exceptionalism that we saw under the Obama administration,” McGonigle Leyh told Al Jazeera, adding however that delays in lifting ICC sanctions raise questions about what pressure the Biden administration is facing.
“The administration has to ask … to what extent does it want to support accountability for serious international crimes? To what extent does it want to support the rule of law, not only at home, but also abroad?” she said. “To me, those are the key questions.”
‘The court has moved on’
Schabas said the Biden administration is unlikely to take the same aggressive stance towards the ICC that Trump took due to “too much support within the administration and its political base for the court”.
However, he said it was unclear whether Biden would warm up to Obama administration levels since “the court has moved forward in investigations that are threatening to the United States”.
Meanwhile, the ICC will not “buckle” under US pressure to drop its probe into abuses in Afghanistan, although ICC officials have said Washington could end the probe by adequately pursuing its own investigation and prosecution, as per the provisions of the Rome Statute.
Schabas said while many people believe US engagement with the ICC would be helpful, the opposite could also be true.
“A lot of enthusiasm for the court and the possibility of its continued expansion in the world is the fact that it’s not intimidated by the United States and was prepared to proceed with investigations that threaten American interests,” he said.
“The court has moved ahead – and it’s moved on without the United States.”