International Criminal Court: US stops short of resetting relations after lifting sanctions
Earlier this month, the United States government repealed sanctions on the International Criminal Court’s (ICC’s) top prosecutor, putting an end to two years of particularly hostile relations. However, international justice experts are urging caution in declaring the move a complete détente in the relationship.
On 2 April, the Biden administration lifted sanctions imposed by the Trump administration against ICC Prosecutor Fatou Bensouda and another senior official, Phakiso Mochochoko, Head of the Jurisdiction, Complementarity and Cooperation Division. The sanctions, which included a travel ban, visa restrictions and asset freezes, were introduced in response to the Court’s decision to investigate alleged war crimes related to the armed conflict in Afghanistan – including the actions of US troops – and a separate conflict in the Palestinian Territories occupied by Israeli troops. Visa restrictions imposed on certain ICC staff have also been lifted.
The lifting of sanctions was welcomed by the international community and comes as President Biden accelerates efforts to distance himself and his administration from the destructive approach to the co-operative multi-lateral institutions adopted by his predecessor.
The Biden administration has also announced sweeping new sanctions on Russia over cyberattacks and have pledged to cooperate with China on tackling climate change. On repealing the ICC sanctions, US Secretary of State, Anthony Blinken, said his government recognised the need for dialogue and ‘engagement with all stakeholders in the ICC process.’ However, Blinken said the US continues to ‘disagree strongly’ with the investigations into Afghanistan and Pakistan.
Luis Moreno Ocampo was the ICC’s first prosecutor from 2003-2012. He says his successor’s unwavering resolve to take on cases against global powers, like the US, has made her an all too obvious target. ‘She had to do what she had to do and, of course, when you investigate someone, you are not popular with these people,’ he tells Global Insight. ‘The US case is a good example. President Obama recognised that the US tortured people. The US Congress recognised [there was] torture, but now when Ms Bensouda investigates them, they treat her as a terrorist.’
It is time for the US to become a consistent champion of the ICC and international justice, not a part-time admirer of convenient cases
Executive Director, Global Centre for the Responsibility to Protect in New York
The US has a longstanding opposition to the ICC having never ratified the Rome Statute, the treaty which formally established the court in 2002. The Clinton administration originally signed the Rome Statute in 2000, but the George W Bush administration declined to submit it to the US Senate for ratification. Moreno Ocampo recalls the words of Bush’s United Nations envoy, John Negroponte, in 2002 after the UN Security Council agreed a 12-month exemption protecting US citizens involved in UN peacekeeping missions from being investigated by the Court: ‘He said: “We pledge that we will investigate any crimes committed by US troops.” He pledged that. And then 20 years later, they forgot. And they treat Ms Bensouda as they treat terrorists or drug dealers.’
Justice Richard Goldstone says the lifting of sanctions in no way signals a ‘new chapter’ for US-ICC relations. ‘It reverts to what it was prior to the wholly inappropriate action by the Trump administration,’ says Goldstone, former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and Honorary President of the IBA’s Human Rights Institute. ‘The Biden administration correctly recognises that the actions taken by the Trump administration were without any merit.’
The US objects to the ICC exercising jurisdiction over nationals of non-member countries. Afghanistan and Palestine are both ICC member countries, which gives the Court authority to investigate and prosecute crimes committed by their nationals or by anyone on their territories. The UN Security Council is also permitted to refer alleged atrocity crimes committed in any country to the Prosecutor, but this has only happened on two occasions: with Darfur, Sudan, in 2005 – when the US did not block the vote at the Security Council – and Libya in 2011 – when the US voted in favour of the Security Council to the refer the situation to the Court.
The US does deserve credit, however, for its role in helping the ICC secure two of its most significant convictions. In 2013, the US transferred Congolese rebel leader Bosco Ntaganda to the Court from its embassy in Rwanda. Ntaganda was later convicted on 18 counts of war crimes and crimes against humanity in the Democratic Republic of the Congo. The country also facilitated the voluntary surrender and transfer of Lord’s Resistance Army commander Dominic Ongwen to the ICC in 2015. In February 2021, the Court found Ongwen guilty on 61 counts of war crimes and crimes against humanity committed in northern Uganda between July 2002 and December 2005.
It’s high time the US offered the Court greater support, says Dr Simon Adams, Executive Director at the Global Centre for the Responsibility to Protect in New York. ‘I do think the removal of sanctions offers an opportunity to reboot the relationship between the US and the ICC,’ he says. ‘The US played a role in bringing Ongwen to justice, but it is time for the US to become a consistent champion of the ICC and international justice, not a part-time admirer of convenient cases.’
Despite recent convictions, the ICC continues to face considerable criticism. In mid-April, the United Kingdom, which has long been regarded as a loyal supporter of the Court, drew the ire of human rights groups when Prime Minister Boris Johnson waded into the debate over Palestine and denounced the Court’s investigation into alleged war crimes committed in the occupied Palestinian Territories as ‘political interference.’
ICC Prosecutor Fatou Bensouda, whose tenure ends in June, has always maintained that her office works ‘without fear or favour’ regardless of any political pushback. The Court’s inner workings were examined in a comprehensive report published in September 2020, following an independent review by international legal experts. Chaired by Goldstone, the review cited 384 recommendations, including action points to improve the Court’s internal working culture, as well as strengthening its overall performance and the Rome Statute system. Despite any misgivings, the experts concluded that only by the international community ‘rallying around the Court’ would the ICC achieve its goal of ending impunity for atrocity crimes once and for all.
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