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Brief # 112

Should the US join the International Criminal Court?

By Ailin Goode

May 17, 2021

Summary:

Relations between the U.S. government and the International Criminal Court have shifted back and forth between cautious support and straightforward opposition with each administration since the founding of the ICC in 2002. While the Biden administration is proving more tolerant of the Court than his predecessor it remains to be seen whether-or-not the United States will reconsider its current abstinence from the Rome Statute, the treaty that established and governs the ICC.

Early in April, Biden revoked Executive Order 13928, the purpose of which was to allow the Trump administration to impose sanctions and visa restrictions on ICC personnel, including Prosecutor Fatou Bensouda. The sanctions were removed to signal the new administration’s shift from threat to diplomatic engagement. The White House also recently vocalized support for reforms to the ICC that States Parties are currently considering.

The Biden administration continues to condemn the ICC’s investigation into potential war crimes by U.S. military forces and the CIA in Afghanistan and possible war crimes committed by Israel in Palestine on the grounds that neither the U.S. nor Israel are under ICC jurisdiction, objecting to what it calls “the Court’s efforts to assert jurisdiction over personnel of non-States Parties.” However, the Rome Statute does allow both investigation and prosecution of members or non-States Parties (states that have not ratified the Rome Statute) if they are accused of committing acts worthy of investigation on State Party territory. Both Afghanistan and Palestine are member states of the ICC. 

Analysis:

The International Criminal Court was founded in 2002 as a court of last resort to investigate extreme violations of international law and prosecute individuals accused of international crimes such as genocide, war crimes, and crimes of aggression. The Court was established in accordance with the Rome Statute which was the result of a diplomatic conference held in 1998 by the United Nations General Assembly. The United States was one of seven countries to vote against the treaty including China, Israel, and Iraq.

In 2000, President Bill Clinton signed the Rome Statute, but Congress did not ratify it, choosing instead for the United States to act as a supportive observer before agreeing to submit to its jurisdiction. After Clinton, each presidential administration has responded to the ICC in different ways.

In 2002 President Bush informed the U.N. that his administration had no intention of ratifying the Rome Statute and in fact, actively opposed it. The U.S. government pushed for multiple bilateral immunity agreements with different states and passed the American Service-Member’s Protection Act in an effort to ensure that American citizens and military personnel would be immune to investigation and prosecution from the international court. However, the Bush administration did vocalize support for the ICC’s prosecution of Sudan in reference to the Darfur genocide.

The Obama administration also stated support for the Sudan investigation and returned the U.S. to its position of cooperative observer. President Obama also withdrew the international pressure the Bush administration had exerted on Bilateral Immunity Agreements and in 2010 the United States was the only non-State Party (non-member of the ICC) to pledge to help both the ICC and other countries prosecute “atrocity crimes.”

After Trump was elected, the administration, once again, altered its stance on U.S. relations with the ICC, shifting back to the open opposition of the Bush administration. President Trump went so far as to revoke ICC Prosecutor Fatou Bensouda’s visa in 2019 and in 2020 he imposed sanctions on the ICC. This action was thought by some to be retaliatory as the ICC had just authorized an investigation into the possibility that the U.S. military had committed war crimes in Afghanistan.

The ICC currently has 123 member states, many of which are Democracies and allies of the United States. If the U.S. were to join it would reinforce the country’s stated commitment to upholding human rights including, freedom, peace, and justice for victims of violence. It would also display an attitude of global cooperation signaling a change from the isolationist policies of the Trump administration.

There are some critics that see the ICC as a threat to America’s sovereignty, however, the United States has already been involved in multiple international courts over the years with no notable risk.

In addition to the ongoing Afghanistan investigation, the ICC has also been recently called upon to investigate “crimes against humanity” perpetrated on U.S. soil by police against Black Americans. The request comes after the release of a 188-page report compiled by a global commission of human rights experts detailing systemic violence against the Black community.

Should the Biden administration submit to these investigations it would add credence to the promise of social justice that was widely responsible for their election into office. It would also indicate that the U.S. is drawing a hard line against racially motivated violence as well as global violence.

Engagement Resources:

www.hrw.org – “Human Rights Watch investigates and reports on abuses happening in all corners of the world. We are roughly 450 people of 70-plus nationalities who are country experts, lawyers, journalists, and others who work to protect the most at risk, from vulnerable minorities and civilians in wartime, to refugees and children in need.”

https://www.icc-cpi.int/ – The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

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