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Re-engaging with Allies and International Organizations

For 4 years the Trump administration pursued failed a go-it-alone foreign policy, withdrawing the US from its commitments to its allies and international organizations. The Biden administration has indicated its intention to reverse course and take a multi-lateral approach to foreign policy. In this series USRESIST Reporter Will Solomon analyzes the challenges involved in the US re-engaging with international organizations such as the International Criminal Court, the World Trade Organization and others.

# 1 The International Criminal Court (ICC)

By Will Solomon

Summary:

The United States has a troubled history with international law. And is that so surprising? Much of the architecture for contemporary international law was established as and after the United States became the dominant world power; the USA has had a long incentive and privilege to promote an international rules-based system that favored this country, and that if needed, it was free to break.

One institution in this nexus is the International Criminal Court. The ICC was preliminarily voted into existence by 1998’s UN Rome Statute—seven countries voted against its founding, including the United States. The ICC was then formally established in 2002—at which point the United States withdrew its preliminary signature (by Clinton in 2000) and announced it was not party to the treaty. This was followed by the 2002 congressional passage of the American Service-Members’ Protection Act, colloquially called the “Hague Invasion Act,” which effectively allows the United States to use force to protect any American or allied person who has been imprisoned or come under the court’s jurisdiction.

The American attitude towards the ICC has, in practice, only hardened in the nearly two decades since, and much of the discourse around the ICC may be seen as a rhetorical cudgel in the “national vs. international sovereignty debate”—i.e., “nationalists” seek to prevent the court from extending its jurisdiction over the US and nullifying this country’s sovereign laws. But this disagreement largely obscures US bipartisan opposition to the ICC and a major US position towards the court—namely, protecting American and allied (Israeli, for instance) complicity or active engagement in war crimes.

The Obama administration, in fairly typical fashion, signaled a willingness to cooperate with the ICC without rejoining it. Thus in practice, while the US adopted a less aggressive outwards posture towards the Court, it did not substantially alter its position. Predictably, the Trump administration renewed the Bush administration’s aggressive hostility towards the ICC. This was amplified recently after the ICC began investigating American war crimes in Afghanistan, in 2019. In response, the US withdrew the visa for the ICC prosecutor, Fatou Bensouda.

 

Analysis:

The US holds a unique position with respect to international treaties, and in particular, to organizations like the International Criminal Court. As suggested above, on the one hand, the modern international order came into effect largely due to US design in the post-World War II era. The US is thus incentivized to adhere to the system and promote its legitimacy. On the other hand, the US has always been careful to maintain a dominant position in that order, and has in many ways become more assertive in this respect since the collapse of the USSR and American emergence as “sole superpower” in the 1990s. Increasingly—particularly post 9/11—this has led the US to effectively function as a “rogue state” within the order it designed.

All this said, we are no longer in the world of the 1990s. In many ways this is a multipolar world, with China existing as dominant US competitor, and a series of secondary but significant powers around the world, including Russia, India, and others (notably, neither China, Russia, nor India are currently a party to the ICC). While an extraordinarily complex topic in its own right, Trump’s America-first posture ought to be seen in this light of this relative American decline.

This brief summary brings us to the present. The Biden administration seesms to be committed to rebuilding international alliances, perhaps the most practical way to advance national interests in a multipolar world. The reinstitution of alliances and multi-lateralism has the potential for addressing complex international issues like climate change and nuclear proliferation. Many of our traditional allies belong to and support the International Criminal Court.

The ICC has played and could continue to play an important role in prosecuting the practitioners of state-sponsored terrorism (Charles Taylor of Liberia) war crimes
(Slobodan Milosevic ) genocide, and human rights violations. The US should welcome the court’s ability to intervene in these matters. However, it is unrealistic to think that the US would be willing to have its own citizens tried by the ICC under international law. Unfortunately US domestic politics is not ready to recognize the court’s jurisdiction. We still cling to the outdated belief that we are better than and outside of the international legal system.

It is, for these and other reasons—above all, the longstanding bipartisan commitment to unilateral hegemony—unrealistic to expect that Biden will choose to seriously cooperate with the International Criminal Court. But he should. Democratic candidates further to the left have frequently said as much since the ICC’s founding, and it would be enormously significant as a gesture of international engagement.

At the very least—Biden must pursue a less antagonistic approach to the activities of the ICC. It seems likely Biden will remove the sanctions placed on Fatou Bensouda, and pursue a line more akin to Obama’s mediated approach. (Likewise, Biden will likely take a less hostile approach towards the United Nations than Trump has done). But the Biden administration ought to seriously consider the global implications of a multipolar world. Rising powers like China will increasingly hold sway in international relations, and graceful international cooperation is the best strategy in this respect. Reengaging with the international community, including the ICC, is a meaningful component to this approach.

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