Time for the US to Reset Its Policy on the ICC & Reassume Leadership in International Justice

Jennifer Trahan is Clinical Professor at NYU’s Center for Global Affairs and Director of their Concentration in International Law & Human Rights.

A reset of US policy toward the International Criminal Court (ICC) is sorely needed. It is also time for the US, which historically has been a leader in the field of international justice, to reassume that leadership mantle.

Rescind Sanctions on ICC Officials as an Urgent Priority

While the US has had a varying relationship with the ICC during the last several administrations, that relationship reached its lowest ebb during the past administration, with the imposition pursuant to an Executive Order of travel bans and asset freezes against the ICC Prosecutor and at least one other ICC official. That Executive Order urgently needs to be rescinded, and this should be a top priority for the Biden Administration. U.S. War Crimes Ambassadors who have served under the Clinton, Bush, and Obama Administrations have all denounced the Executive Order (see also here), as have over seventy UN Member States, the American Bar Association, the New York City Bar Association, the Philadelphia Bar Association, 188 US academics, and 70 non-governmental organizations, faith-based groups, and academic institutions. Threatening officers of a judicial institution with sanctions and then imposing them is no way for a country that abides by the rule of law to deal with Court officials pursuing their mandates.

Imposition of sanctions has also come at a reputational cost. The sanctions created the optics of the US attempting to derail the ICC’s work—and desperate enough to employ thuggish tactics to achieve that end. The sanctions are also anathema to the views of almost all major US allies, who are parties to the ICC’s Rome Statute and supporters of the Court. As the Biden Administration starts to restore its relationship with its allies, reversal of the Executive Order is a necessary step. Reversal also would allow for termination of litigation brought by US academics and NGOs challenging the Executive Order’s legality (see here and here). 

For the reasons Kip Hale points out, removing the sanctions designations but leaving the Executive Order in place—so that other ICC officials may easily be designated for sanctions in the future—fails to restore respect for the rule of law and reverse the troubling actions of the past Administration. Hale writes:

To be clear, lifting the sanction designations and rescinding the executive order are the bare minimum. Reversing the designations yet leaving the executive order in place that authorizes the use of sanctions, as some in Washington predict, is not a reversal but rather an approval of the underlying premise of Trump’s policy.

Beth van Schaack also calls for full revocation of the Executive Order.

Return to Constructive Engagement with the ICC

During the Obama Administration, the US pursued a policy of “constructive engagement” with the ICC, which allowed for US assistance on a case-by-case basis. The Biden Administration should return to this policy.

The ICC is designed to prosecute “the most serious crimes of concern to the international community” and to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes” (Rome Statute, preamble). This is a mandate that deserves US support. 

Moreover, the US, which has been a leader in the establishment of past tribunals, has much beneficial expertise it could be sharing with the ICC. The US played a leading role in supporting, establishing, and furnishing staff (including Prosecutors) to the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Kosovo Specialist Chambers, as well as other tribunals.

Additionally—not that his should matter in the support of justice—much of the ICC’s work aligns with US interests. Returning to a policy of constructive engagement on a case-by-case basis would allow the US to assist in such instances:

• The ICC is investigating crimes committed against the Rohingya, crimes the US House of Representatives has declared to constitute genocide.
• To the extent that crimes against the Uighurs, which the US has also declared to constitute genocide, have one element of the crime occurring in a country such as Tajikistan, a Rome Statute State Party, the ICC potentially has jurisdiction over these crimes.
• The US was one of the first countries to label the crimes in Darfur as “genocide.” Now—after many years in which all the ICC’s Darfur warrants against Sudanese officials and Janjaweed militia were outstanding—one of the accused is in ICC custody. This trial can at long last bring some measure of justice. The US could also work toward persuading the Government of Sudan to surrender other Sudanese wanted by the Court, as well as persons wanted in other situations.
• The US had long sought accountability against members of the so-called “Lord’s Resistance Army” (LRA) for crimes committed in Northern Uganda, including mass use of child soldiers, even deploying Special Operations Forces during the Obama administration to assist with arrests. The ICC has now convicted an LRA commander for war crimes and crimes against humanity.

Finally, having personally threated the ICC Prosecutor and put her through the ordeal of sanctions against her, the US needs to restore its credibility. Constructive engagement with the ICC and assistance on a case-by-case basis—coupled with endorsement of this course of action as official US policy—would help achieve this.

Engage with the ICC in all Situations

Charting US policy regarding situations where US interests are not perceived to align with those of the Court is more challenging. At issue are the ICC’s Afghanistan investigation, which relates to alleged crimes by US nationals as well as the Taliban and members of the Afghan Armed Force, and the ICC’s Palestine preliminary examination, which relates to alleged crimes by both Palestinian and Israeli nationals. In terms of U.S. nationals, the allegations primarily concern crimes committed as part of the US’s “enhanced interrogations program” conducted during the George W. Bush administration, with the torture well-documented by the U.S. Senate Select Committee on Intelligence.

It is important to make clear that even if the US does not like the ICC pursuing these investigations, this is no reason to maintain sanctions against Court officials. The sanctions did not result in any change in the ICC’s work—Court officials stood up firmly and demonstrated they would not be bullied. Thus, not only were the sanctions an inappropriate tactic to employ regarding a judicial institution and a costly tactic in terms of the US’s reputation, they also did not “work.” 

While the US would clearly prefer that the ICC not proceed with these two investigations, the US needs to let the rule of law and a judicial institution function. 

At the same time, the US is not an ICC State Party, and thus owes no cooperation obligations to the ICC. Declining to provide assistance related to the Afghanistan situation or Palestine situation is perfectly within the US’s rights. 

What the US can do in these situations is engage constructively with the ICC—this does not mean actively assist—but treat the ICC with the respect due a judicial institution. For example, if the US maintains there are outstanding issues as to jurisdiction related to the Afghanistan situation (a claim the US has periodically invoked) it can advance these. While there has already been a Pre-Trial Chamber ruling on the scope of the Court’s territorial jurisdiction related to the Palestine situation, if the US believes there are further jurisdictional issues to raise, it could engage with the Court on those, as can Israel. Similarly, if the US contends it has done sufficient “complementarity” under Article 17 of the Rome Statute to render cases against US nationals related to the Afghanistan situation “inadmissible” (an argument also sometimes advanced), the US can engage with the Court and make these arguments—either privately in submissions to court officials, or, at the appropriate time, through motion practice. As Kip Hale writes: “The United States should articulate their opposition, when necessary, primarily in court filings and court appearances . . . .” 

The US could think of its stance as one of laissez faire, with the US neither assisting nor hindering the ICC’s work in these situations. A policy of constructive engagement on a case-by-case basis permits this approach. If either the US or Israel chooses to ensure that its nationals are not brought before the ICC, they could engage in “complementarity” (i.e, pursuing domestic investigations and/or prosecutions) thereby rendering cases against their nationals inadmissible before the ICC. This would be the best course of action for both countries. 

While Israel has had concerns about receiving fair treatment at international fora such as the United Nations, the ICC is an independent court, not an international institution. It is run by independent professionals and many procedural safeguards are built into ICC proceedings.

US engagement with the ICC, even in situations of differences in political view, additionally helps ensure that the ICC remains a viable institution for when it is in US interests for the ICC to pursue investigations and/or prosecutions. 

Reassume Leadership in International Justice 

Finally, the US should look for additional opportunities to advance the field of international justice. This again serves the dual purpose of being both the right course of action and helping to restore US credibility and leadership. Such support also leads to a more stable, predictable international system—one that dictatorships that thwart the rule of law find more difficult to subvert. These efforts would ideally be led through the appointment of a new US War Crimes Ambassador (or head of the Office of Global Criminal Justice) coupled with robust support for a reconstituted Office of Global Criminal Justice, which is part of the US State Department. 

After the ICC was created, there was the perception that no other tribunals would be needed; twenty years later, it has become clear that the ICC cannot adjudicate all atrocity crimes prosecutions globally, and there are certain situations where it is necessary to establish additional tribunals or mechanisms where they would in no way compete against the ICC. In such situations, the US should play a leadership role, seeking new and creative ways to support international justice (the prosecution of core atrocity crimes—i.e., genocide, war crimes, and/or crimes against humanity). 

For example, the US has supported the work of the Kosovo Specialist Chambers (KSC), which is adjudicating crimes committed in Kosovo during the 1990s, and which were not prosecuted by the Yugoslav Tribunal. The current Prosecutor and Deputy Prosecutor are US nationals, as was the past Prosecutor. The KSC’s work in no way competes with the work of the ICC, the jurisdiction of which commenced in 2002 at the earliest. 

There are also two fairly new “Mechanisms.” One is the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under International Law committed in the Syrian Arab Republic since March 2011 (IIIM), established to compile evidence of atrocity crimes committed in Syria. The other is the Independent Investigative Mechanism for Myanmar (IIMM), established to compile evidence of atrocity crimes committed in Myanmar and led by a US national. Syria and Myanmar are situations where the most direct routes to pursuing accountability—either the creation of a freestanding international or hybrid criminal tribunal or referral of the situations to the ICC are blocked by the actual or presumptive vetoes of Russia and/or China. (For more on vetoes see my book; see also Opinio Juris book symposium.) 

Yet, the US and the international community must not become complacent having created these Mechanisms—which have no capacity to conduct prosecutions. Being able to feed evidence into isolated cases pursued under universal jurisdiction or similar jurisdictional theories brought when a few suspects travel to countries willing to exercise jurisdiction hardly suffices to replace a tribunal with jurisdiction to prosecute methodically the worst perpetrators and worst crimes. Leadership and creativity will be required to ensure a comprehensive approach to justice—that the international community’s efforts do not end with the compilation of crime evidence and a handful of domestic cases. A similarly challenging situation exists related to the crimes being committed against the Uighurs, where most likely any direct routes to pursuing justice (i.e., a freestanding criminal tribunal or Security Council referral of the situation to the ICC) will be blocked by a presumptive veto by China.

Thus, there are many challenges for the field of international justice, and US leadership and creativity is much needed. Is a posture that involves selective engagement hypocritical? To some extent. I would prefer a US policy of full engagement with the ICC related to all situations, and I hope the US can strive toward that (someday becoming a party to the Rome Statute), and accept that if US or Israeli nationals are implicated in war crimes, they too must be prosecuted—whether before domestic courts or, failing that, an international tribunal. Because the US would no doubt prefer prosecutions of US nationals before its own courts rather than the ICC, as I wrote over four year ago in a post on Opinio Juris, the US should pursue complementarity and avoid a show-down with the ICC—something that would not benefit the US, the ICC, or the world. The US has fully capable federal and military courts that it could more thoroughly utilize to this end. It is really the only course of action that the US can chart that involves adherence to the rule of law; without that adherence, other constructive work that the US could engage in also risks being undermined. 

It is time for the US to shift from being a destructive player (imposing sanctions on the ICC), back to not only being a constructive player (reassuming a constructive relationship on a case-by-case basis with the ICC), but also reassuming a leadership role in the field of international justice.