Biden White House shares common ground with Trump when it comes to the ICC

Like any seasoned politician, Joe Biden made a virtue of necessity last month when he finally revoked Donald Trump's sanctions against the International Criminal Court (ICC) and its chief prosecutor, Fatou Bensouda – just days before the measures were due to be challenged legally in the US.

The sanctions were imposed by the Trump White House after the court opened an investigation into alleged mass killings by the Taliban in Afghanistan, as well as allegations of torture by Afghan government forces and the US, including the CIA, between 2003 and 2014.

Already on contentious ground, the ICC judges then went further: agreeing unanimously that the investigation should include claims that CIA "black sites" were operated in Poland, Lithuania and Romania to which prisoners were forcibly transferred from Afghanistan for "enhanced interrogation".

Describing the ICC as “a thoroughly corrupt and broken institution”, Trump retaliated by imposing travel restrictions and an assets freeze on Bensouda – which she in turn dismissed as “more appropriate against narcotics traffickers or terrorists” than on officers of a UN-backed court.

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The expectation, of course, was that once the Democrats reoccupied Washington’s halls of power, the sanctions would be quietly lifted.

That indeed is what happened on Good Friday last, at which point the US government was facing a lawsuit by human rights advocates in New York the following Monday morning.

Secretary of state Anthony Blinken – trustworthy standard-bearer for a rules-based international order – said the decision reflected the new administration's view that the measures were "inappropriate and ineffective", carefully chosen words, as befits a senior diplomat.

In The Hague, an ICC spokesperson issued an appropriate welcome. Of the legal profession, among those most fulsome in response was Philippe Sands QC, who declared: "It will be good to have the US back fighting for the international rule of law, not against it."

Would that the relationship between the US and the ICC were as devoid of geopolitical complexity as Prof Sands seems to suggest.

Common ground

What the legal action by the Open Society Justice Initiative slated for Easter Monday would have shown was that while, certainly, the Biden White House did not support the Trump sanctions against the ICC, there are key areas in relation to the court on which both presidents share common ground.

That common ground is based on the fact that the US is not, and never has been, a member of the ICC, and so US citizens are not subject to its jurisdiction.

That is why, when revoking the Trump sanctions order, Blinken’s full statement went on to say clearly that the US maintained its “long-standing objection” to the ICC’s efforts to “assert its jurisdiction” over countries that were not members of the court.

In particular, the statement said: “We continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations.”

Right there, in the section of the statement that supporters of the ICC didn’t really want to read, is the crux of the matter, conveniently focused by Blinken on the two most contentious cases under consideration by the court.

The ICC certainly needs a more confident persona in the international arena

In relation to Afghanistan, while the US states that its citizens are not under any circumstances subject to the jurisdiction of the court, the ICC maintains it does have jurisdiction over possible war crimes by Americans in Afghanistan – because Afghanistan is a member of the court.

Similarly, the Biden team, like its Trump predecessors, is opposed to the ICC investigation into possible war crimes by Israel in the West Bank, Gaza and East Jerusalem in 2014, because Israel is not a member of the ICC. However, as the court again points out, Palestine is a member.

It’s worth noting here that just as the Afghanistan investigation would also investigate the Taliban, so too would the investigation into Israel’s behaviour also investigate the actions of armed Palestinian groups.

Wishful thinking

The idea then that a return to the relative normality of a Democrat White House will lead to a new golden age in relations between the US and the ICC is – as Washington would be the first to admit – little more than wishful thinking.

When Bensouda's recently elected successor, Karim Khan QC, takes over in mid-June, the US will be firmly back in the multilateral fold, though those fault lines in relation to the question of fundamental jurisdiction will remain as divisive as ever.

The ICC certainly needs a more confident persona in the international arena. But the US has shown that what it values most in its one-to-one relationship with the court is, unfortunately, compliance.