If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.
Finally, the Trump administration is gone, and its vicious attacks on the International Criminal Court (ICC) are over. But before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?
All signs point towards a return to piecemeal engagement, where Washington uses the Court when it suits its interests and undermines it when it does not. Biden has said the U.S. is “back”. But on international justice, there’s a need to be different – and better.
A tumultuous relationship
The relationship between the US and the Hague-based Court has always been tumultuous. While the US has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the Court and also been affected by it.
President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.
When George W Bush came to power, he immediately embarked on a hostile campaign against the Court. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised the US President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorisation, which meant Washington could use military force against the Court, led the law to be nicknamed “the Hague invasion act”.
The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the Court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.
When the Obama administration took over, it stated its intent to “positively engage” with the Court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with the Court. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.
During the Obama years, American cooperation was invaluable for the Court. By sharing evidence and ensuring that the Court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.
But the Obama administration’s partial engagement with the Court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the Court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the Court’s reach, while those that lacked US support were readily investigated by ICC.
Then came Donald Trump. The Trump administration was hostile towards the Court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the Court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court.”Continue reading