The Biden administration has already reversed many of the Trump administration’s setbacks to international agreements and organizations, returning to the Paris Agreement on climate change and the World Health Organization, planning a return to the UN Human Rights Council and trying to resuscitate the six countries. nuclear deal with Iran.
But notably, the government has yet to undo one of Trump’s most blatant attacks on a multilateral institution: sanctions on the International Criminal Court.
The Trump administration retaliated against the ICC, the Hague-based court created to prosecute war crimes and crimes against humanity, for its decision to authorize an investigation into alleged war crimes in Afghanistan, including allegations of torture by U.S. officials, as well as ongoing investigations into alleged Israeli war crimes in the occupied territories.
Neither the United States nor Israel are members of the court, but Afghanistan and the Palestinian Authority are, so the crimes that occur there are within their jurisdiction.
In March 2019, then Secretary of State Mike Pompeo announced visa restrictions for any court employee involved in the investigation of American officials. ICC prosecutor Fatou Bensouda had her visa revoked the following month. Then, the following year, after the court decided to give the prosecutor’s investigation the green light on Afghanistan, the United States imposed economic sanctions on these officials and extended the travel ban to their families. Although technically legal, this was intimidating behavior that only gathered international support for the ICC.
Many expected sanctions to be lifted immediately after Trump’s departure. Days after taking office, the Biden government announced a review of the sanctions, but the results of that review have not yet been released. The State Department did not respond to a request for comment from Slate, but said Julian Borger of the Guardian last week, that the government is still “exhaustively reviewing sanctions under Executive Order 13928 while we determine our next steps”. ICC advocates are growing impatient. Last week, 80 non-governmental organizations, religious groups and academic institutions issued a joint statement calling for the sanctions to be lifted.
Why the assault? Barak Ravid de Axios shed some light on this on Wednesday, reporting that Israeli diplomats have been putting heavy pressure on the government to keep the sanctions in place, arguing that “even if the government disagrees with the sanctions, it should keep them in place as a means to dissuade Bensouda and his successor from pursuing investigations in Afghanistan or the West Bank and Gaza. ”Israeli Prime Minister Benjamin Netanyahu personally raised the issue in his conversation with Biden last week.
Even before that lobby, Biden’s team had suggested that, while disapproving Trump’s methods, he shared his concerns about the court. “We have always taken the position that the Court’s jurisdiction should be reserved for countries that can consent to it or that are referred by the UN Security Council,” said State Department spokesman Ned Price. In other words, Americans and Israelis should be exempt from the court’s jurisdiction, even if they commit war crimes in a country that is a member of the court.
During the Obama administration, the United States was a little more cooperative with the ICC. For example, in 2013, the United States turned over Congolese general Bosco Ntaganda to court, where he was later convicted of war crimes. The United States also voted in 2011 to authorize an ICC investigation of crimes against humanity in Libya, although only after insisting on the immunity of its own citizens.
However, this was before investigations in Afghanistan and Palestine. “The US relationship with the ICC is in a much more complicated situation than it was when the Obama administration took over,” says David Bosco, an expert on international institutions and a professor at Indiana University. “Sanctions are something that the Biden government would never have imposed, but the policy of withdrawing them now, with Afghanistan and Palestine, is complicated.”
It is not very clear whether there is a way for the US to lift sanctions and deter investigations. The United States is no longer a member of the court – Bill Clinton signed the Rome Statute that established the court in 2000, but it was never ratified by Congress and a law passed in 2002, dubbed the “Hague Invasion Act” by his opponents , authorizes the use of force to secure the release of any US citizen detained for prosecution by the court.
That should be enough. It is not realistic at this point that human rights defenders expect the US Join the court, subjecting its citizens to the same international legal standards for war crimes that we support in Africa and the Middle East, but at least the Biden government should cancel its predecessor’s exaggeration of intimidation.