Biden Likely to Lift Sanctions on ICC Chief Prosecutor

But it’s unlikely the next U.S. administration will be able to fully embrace the International Criminal Court as the shadow of American prosecutions still lingers.

This article is part of Foreign Policy’s ongoing coverage of U.S. President Joe Biden’s first 100 days in office, detailing key administration policies as they get drafted—and the people who will put them into practice.

International Criminal Court prosecutor Fatou Bensouda
International Criminal Court prosecutor Fatou Bensouda speaks with a colleague at the tribunal's courtroom in The Hague, the Netherlands, on Aug. 28, 2018. Bas Czerwinski/AFP via Getty Images

President-elect Joe Biden is facing increasing pressure from foreign allies, international justice advocates, and some of his own advisors to lift U.S. sanctions on Fatou Bensouda, the Gambian lawyer who leads the International Criminal Court, and a chief ICC aide.

Once he’s inaugurated, Biden has vowed to take a number of steps—including rejoining the Paris climate accord and reversing the current administration’s decision to withdraw from the World Health Organization—aimed at assuring key allies that the new American leader is committed to multilateralism and cooperating on a range of vexing global challenges. He has largely remained silent on his plans for the international tribunal, but sources familiar with the deliberations say that Biden is likely to lift sanctions on the court’s personnel early in his term.

“The first priority has to be on day one to rescind the executive order that authorized sanctions against court officials and those who cooperate with it,” said James Goldston, a former trial attorney with the international tribunal who serves as the executive director of the Open Society Justice Initiative, a New York-based nonprofit that promotes accountability for serious crimes around the world. “The administration should be working toward a more comprehensive and robust policy toward the prosecution of grave crimes, and one aspect of that should be reengaging with the ICC.”

In June, U.S. President Donald Trump signed an executive order granting authority to the secretaries of state and treasury to impose an asset freeze and travel ban on foreign nationals who have participated in ICC investigations into alleged crimes by U.S. personnel or American allies. The move infuriated America’s Western allies, which have long supported the court—and they have been pressing the Biden camp to reverse course.

The Hague-based court has long had a complicated relationship with both Democratic and Republican administrations, which have worried that it might pursue criminal charges against American service members engaged in international military or peacekeeping operations. Those fears were heightened by the prosecution’s decision to pursue an investigation into alleged atrocities by U.S. troops in Afghanistan.

In the wake of the U.S. sanctions, signatories to the criminal tribunal have denounced the measures and urged the Biden administration to support the court. On Nov. 2, Germany issued a statement on behalf of 74 countries saying that “sanctions are a tool to be used against those responsible for the most serious crimes, not against those seeking justice. Any attempt to undermine the independence of the Court should not be tolerated.”

“France has been supporting the ICC from the very beginning,” France’s Ambassador to the United Nations Nicolas de Rivière said. “We are very strong supporters of international justice. We will certainly encourage the U.S. not only to drop sanctions or sanctions threats against the ICC, but we will also encourage them to support international justice and not undermine it.”

Observers say it is all but inevitable that Biden will lift the sanctions on Bensouda and Phakiso Mochochoko, a top aide, but that they are not convinced that Biden administration will be able to resume the same level of cooperation as during the Obama administration, citing the political complications posed by an ongoing investigation into U.S. service members in Afghanistan and the potential for a possible investigation into alleged crimes by Israelis.

“It’s very unlikely they will go back to where they were in 2015 or 2016,” said Todd Buchwald, who served as special coordinator in the State Department’s Office of Global Criminal Justice during the Obama administration.

Buchwald is preparing a report for the American Society of International Law with a series of “pragmatic” recommendations aimed at furthering the cause of international justice. The ICC—which has issued only eight convictions since it began operating nearly 20 years ago and which has faced criticism even from its own supporters—represents only one piece of a broader international justice strategy. And Buchwald believes the Biden administration will “reemphasize working with friends and allies” and promoting the idea that “those responsible for atrocities should be held accountable.”

“It is imperative that they act very quickly to repeal that executive order as part of rejoining the community of states that support the rule of law—and I say that cognizant of the possible ICC investigation in Afghanistan that could implicate U.S. personnel, as well as a possible investigation in Palestinian territories,” said Richard Dicker, an expert on the International Criminal Court at Human Rights Watch.

“Obviously the relationship between the court and incoming Biden administration will have points of tension, but what is new?” Dicker added. “But that tension should not preclude, as prior administrations managed, a constructive engagement with the court, particularly in those country situations where the court’s investigative and prosecutorial work facilitate U.S. foreign policy objectives.”

Ned Price, a spokesperson for the Biden transition, declined to comment on Biden’s plans for the ICC. But he said: “The President-elect firmly believes in the principle that there must be only one president at a time guiding our country’s foreign policy and national security as he is focused on preparing to govern.”

The International Criminal Court was established by treaty in Rome in 1998, becoming operational four years later, to prosecute perpetrators of mass atrocities, including genocide; crimes against humanity; and war crimes.

From the beginning, the United States has had an ambivalent relationship with the court, which it encouraged to prosecute some of the world’s most bloodstained leaders, from the former Sudanese strongman Omar al-Bashir to the late Libyan leader Muammar al-Qaddafi, while working to secure immunity for American nationals operating in military missions overseas.

U.S. President Bill Clinton overcame his own misgivings about the court and ultimately signed the Rome Statute that established the tribunal. But his successor, President George W. Bush, withdrew the presidential signature, citing concern that the tribunal would be used to conduct politically motivated prosecutions of U.S. service members engaged in overseas operations. Even before the court came into existence, the Bush administration threatened to shutter vital U.N. peacekeeping missions to compel the U.N. Security Council to carve out an immunity provision for countries, like the United States, that had not joined the treaty. The effort failed.

Despite early opposition to the court, Bush ultimately found it could be used to pressure America’s adversaries. In 2005, the Bush administration abstained on a U.N. Security Council resolution authorizing a criminal investigation by the ICC prosecutor into alleged war crimes committed by Bashir’s regime in Darfur.

President Barack Obama went further, voting in favor of a 2011 U.N. Security Council resolution authorizing an investigation by the court into mass atrocities in Libya. The Obama administration also stepped up cooperation with the court, aiding in the arrest and transfer of a Congolese militia leader, Bosco Ntaganda, to The Hague, where he was convicted of war crimes.

But the Trump administration has pursued an openly hostile approach to the court.

The ICC’s prosecutor infuriated the Trump administration during its first year in office, seeking permission from the court’s judges to pursue a formal investigation into alleged crimes committed by the United States and other combatants during the Afghan War, and in previously secret CIA detention centers outside of Afghanistan. And in December 2019, Bensouda sought permission from the court’s judges to pursue an investigation into alleged war crimes committed by Israeli forces during the 2014 conflict in the Gaza Strip.

In response, the Trump administration took a number of punitive steps against the prosecutor, initially revoking her visa to travel to the United States. This June, the White House issued an executive order paving the way for sanctions on the court on the grounds that the Afghan investigation constituted an infringement of U.S. sovereignty that threatened the national security of the United States. In September, U.S. Secretary of State Mike Pompeo announced sanctions on Bensouda and a top aide, Mochochoko, dismissing the court as a “thoroughly broken and corrupted institution” and vowing that the United States “will not tolerate its illegitimate attempts to subject Americans to its jurisdiction.”

Colum Lynch is a senior staff writer at Foreign Policy. Twitter: @columlynch

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