ICC Sanctions Symposium: Sanctions Gone, But Don’t Celebrate Too Quickly!

[Oumar Ba is an Assistant Professor of International Relations at Morehouse College.]

On 2 April 2021, President Biden rescinded the sanctions that the Trump administration had imposed on Fatou Bensouda and Phakiso Mochochoko – the two most senior African officials in the ICC’s Office of the Prosecutor. These sanctions were preceded by visa restrictions on ICC personnel in 2019 and a visa ban on Bensouda.

Sanction regimes have operated as a powerful tool at the hands of western states and international institutions to bend other states (from the Global South usually) to their will, often with devastating consequences for those states and their inhabitants. While some have wondered why it took over two months to take action, there is a broad sense of relief, with some analysts arguing that the Biden administration has returned America to the fold of the law-abiding circle of states.

We should be careful not to be so optimistic. For the United States and Israel, the ICC stakes are higher than ever. As long as these two countries are set for a collision course with the ICC, why would anyone expect that the Biden administration will remain measured in how it interacts with the Court? Right from the start, successive US administrations have strived to remain outside of the reach of the Court, and gone to great lengths to shield their citizens and allies from The Hague. This position has enjoyed bipartisan support in Washington. That is not likely to change anytime soon.

Less than a week after the Rome Statute was adopted, Ambassador Scheffer, the head of the US delegation in Rome, was testifying before the US Senate’s Committee on Foreign Relations. The title of the 23 July 1998 hearing session is telling: ‘Is a U.N. international criminal court [sic] in the U.S. national interest?’ At that moment, the Rome Statute had not garnered 60 ratifications yet, but clearly a sense of panic was already wafting through the halls of the US government. The urgent task was to figure out first, what just happened in Rome  – i.e. what the Rome Statute means – and second, what preventive measures to take before the treaty went into effect.

Of primary concern was, as Senator Grams put it, that ‘this court claims universal jurisdiction – in other words, the right to prosecute United States citizens even though the US is not party to the treaty’. Senator Grams asserted that it was not enough that the US voted against the Rome Statute, but, ‘The United States must aggressively oppose this court each step of the way, because [the Rome Statute] is not just bad, but I believe it is also dangerous.’ He called the ICC ‘a monster’. The main strategy was to ensure that the Court never reached 60 ratifications, and if that effort were to fail, should this court come into existence, ‘we must have a firm policy of total non-cooperation, no funding, no acceptance of its jurisdiction, no acknowledgement of its rulings, and absolutely no referral of cases by the Security Council’.

In the words of Jesse Helms, who was the chair of the Senate’s Foreign Relations Committee, those who voted in favor of the Rome Statute, a ‘fatally flawed treaty … voted against us’, and the US ought to ‘aggressively’ oppose this court. The idea that the US might be required to seek a UN authorization before taking military action, lest it be accused of the crime of aggression was ‘baloney’, in the eyes of Jesse Helms.

Ambassador Scheffer acknowledged that ‘the independent prosecutor … was of deep, deep concern to us’. Senator Biden had a better idea: the US administration should use the threat of renegotiating ‘the status of forces agreements with our allies’ to steer states away from ratifying the Rome Statute. Sure enough, the US would later impose Article 98 Agreements on almost a hundred countries and pass ‘the Hague Invasion Act’.  

Both the Bush and Obama administrations then have managed to stay adversarial to the ICC, while progressively allowing some room for accommodation. Yet, the guardrails have always been maintained, even within that accommodation. Even though the fact that the US went from abstaining in the UNSC referral of Darfur to voting in favor of the Libya referral, it remains that both referrals specifically included language that would shield westerners and NATO personnel from prosecution in those ICC situations.

With the Afghanistan investigation looming however, this is the most vulnerable that the US has ever been in regard to the ICC’s reach. To complicate matters further, the investigation in Palestine raises the stakes even higher for the US and Israel. And the Rome Statute’s ‘threat’ to Israel has always preoccupied the US government, even during the Rome negotiations. Let’s go back to that hearing on 23 July 1998 in the US Congress. This exchange between Senator Feinstein (a Democrat) and Ambassador Scheffer is extraordinary.

Senator Feinstein asked whether Israel ‘really might run afoul [of the Rome Statute] because of the occupied territories clause included in Article 8(2)(b)(viii)’.  Ambassador Scheffer responded that ‘transferring your population into an occupied territory’ was a matter of state responsibility under customary international law and the Geneva Convention, not individual criminal responsibility, which the ICC would focus on. But Senator Feinstein wasn’t convinced by the answer, so she pressed on:

Senator Feinstein. Are you effectively saying, yes, Israel could run afoul of the Court under the present structure as proposed?

Ambassador Scheffer: Well, first, I think it is because of this issue, along with other issues, that Israel joined us in voting against this treaty.

Senator Feinstein. So, may I interpret your answer as being yes?

Ambassador Scheffer. Well, again I always want to turn to the Government of Israel to answer that question for its own position, but—-

Senator Feinstein. Well, I am asking you for your interpretation.

Ambassador Scheffer [continuing] My interpretation is that Israel would stand at risk with this provision in terms of exposure to this court.…

Senator Feinstein. May I just make one other statement along this line? To me then it is rather clear that this provision, directly or indirectly, strikes directly at Israel and the West Bank. What surprises me about it is, this was agreed to by our European allies?

Ambassador Scheffer. Yes.

Senator Feinstein. I find that quite remarkable.

So, two decades later, here we are. This is why, to my mind, any celebration of Biden’s reversal of the sanctions is premature and unwarranted. The ICC is in trouble. Any course of action it takes on the Afghanistan and Palestine investigations will be damaging to either its existence, or its credibility. Thanks, to a very large extent, to the United States.