Biden Still Hasn’t Reversed Trump’s Most Ridiculous Assault on International Law
By Joshua Keating
The Biden administration has already reversed many of the Trump administration’s retreats from international agreements and organizations, rejoining the Paris Agreement on climate change and the World Health Organization, planning a return to the U.N. Human Rights Council, and attempting to resuscitate the six-country 2015 nuclear agreement with Iran.
But, notably, the administration has not yet undone one of Trump’s most egregious assaults on a multilateral institution: the sanctions on the International Criminal Court.
The Trump administration retaliated against the ICC, the Hague-based court set up 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. personnel, as well as ongoing investigations of alleged Israeli war crimes in the occupied territories.
Neither the U.S. nor Israel is a member of the court, but Afghanistan and the Palestinian Authority are, so crimes that occur there are within its jurisdiction.
In March 2019, then–Secretary of State Mike Pompeo announced visa restrictions on any court officials involved in investigation of U.S. personnel. ICC prosecutor Fatou Bensouda had her visa revoked the following month. Then, the following year, after the court decided to greenlight the prosecutor’s Afghanistan investigation, the U.S. slapped economic sanctions on those officials, and extended the travel ban to their families. While technically legal, this was bullying behavior that only rallied international support for the ICC.
Many expected the sanctions to be lifted immediately after Trump left. Days after taking office, the Biden administration announced a review of the sanctions, but results of that review have not yet been released. The State Department did not respond to a request for comment from Slate but told the Guardian’s Julian Borger last week that the administration is still “thoroughly reviewing sanctions pursuant to Executive Order 13928 as we determine our next steps.” The ICC’s advocates are getting impatient. Last week, 80 nongovernmental organizations, religious groups, and academic institutions issued a joint statement calling for the sanctions to be repealed.
Why the holdup? Axios’ Barak Ravid shed some light on that on Wednesday, reporting Israeli diplomats have been lobbying the administration hard to keep the sanctions in place, arguing that “even if the administration disagrees with the sanctions, it should keep them in place as leverage to dissuade Bensouda and her successor from pursuing the investigations into 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 lobbying, the Biden team had suggested that while they didn’t approve of Trump’s methods, they shared his concerns about the court. “We’ve always taken the position that the Court’s jurisdiction should be reserved for countries that can consent to it or that are referred to by the U.N. Security Council,” said State Department spokesperson 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 U.S. was somewhat more cooperative with the ICC. For instance, in 2013, the U.S. turned Congolese Gen. Bosco Ntaganda over to the court, where he was later convicted of war crimes. The U.S. also voted in 2011 to authorize an ICC investigation of crimes against humanity in Libya, albeit only after insisting on immunity for its own citizens.
However, that was before the Afghanistan and Palestine investigations. “The U.S. relationship with the ICC is in a much more complicated place than it was when the Obama administration took over,” says David Bosco, an expert on international institutions and professor at Indiana University. “The sanctions are something that the Biden administration never would have imposed, but the politics of pulling them off right now given Afghanistan and Palestine are complicated.”
It’s not quite clear if there’s a way for the U.S. to both lift the sanctions and dissuade the investigations. The U.S. is already not 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, nicknamed the “Hague Invasion Act” by its opponents, authorizes the use of force to secure the release of any U.S. citizens detained for prosecution by the court.
That ought to be enough. It’s not realistic at this time for human rights advocates to hope the U.S. will 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 the very least, the Biden administration should call off its predecessor’s bullying overreach.