The Washington PostDemocracy Dies in Darkness

The United States and ICC have an awkward history

7 min

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In June 2020, the United States imposed sanctions on Fatou Bensouda. Within weeks, Bensouda found that banks were closing her accounts and canceling her credit cards. Even her relatives had assets frozen as banks attempted to comply with rules set by the U.S. Treasury.

What was Bensouda’s alleged transgression? Was she a terrorist? A human rights abuser? A corrupt foreign official?

No, she was the chief prosecutor of the International Criminal Court. And the sanctions were placed on her for doing the job she was appointed to do.

The ICC sits in a grand building in The Hague, the administrative capital of the Netherlands. It is backed by 123 other nations, including U.S. allies all over the world. Bensouda’s office is designed to prosecute major crimes, including war crimes, when the national courts are unable, or unwilling, to do the job.

The Biden administration belatedly rescinded the sanctions upon Bensouda, which were placed on the prosecutor and other senior officials at the ICC by the Trump administration over the court’s investigation into whether U.S. forces committed war crimes in Afghanistan. Bensouda stepped down shortly afterward at the end of her term, replaced by Karim Khan, a British lawyer.

With the Ukraine war looking to be a pivotal moment in the ICC’s 20-year history, the court’s fraught history with the largest and most powerful nation on earth can only complicate matters. Awkwardly, though the United States and Russia may be at odds over the war in Ukraine, they have long been united in a selective hostility to international justice.

That may now be changing. Russia’s invasion of Ukraine has highlighted the complexities of international justice, with many holding out hope that Russian President Vladimir Putin could eventually face trial for war crimes committed by his forces in Ukraine.

Khan has opened an investigation into possible war crimes, crimes against humanity and genocide. After his most recent trip to Ukraine, Reuters and the New York Times reported that he was planning to issue his first arrest warrants against Russians allegedly responsible for the mass abduction of children and the targeting of civilian infrastructure.

To fully pursue the matter, Khan could benefit from the help of the country that sanctioned his predecessor.

66,000 war crimes have been reported in Ukraine. It vows to prosecute them all.

It’s tempting to dismiss the 2020 sanctions on the ICC as a moment of typically Trumpian excess. President Donald Trump had a reflexive opposition to international cooperation, pulling the United States out of the World Health Organization and leaving the Paris agreement on climate change.

But the poor relationship between the United States and the court goes back far further. The ICC was established by the Rome Statute, which was adopted by the United Nations in 1998. (Only seven countries voted against the treaty: Qatar, Yemen, Iraq, Israel, Libya, China and the United States.) President Bill Clinton later signed the agreement but never sent it for ratification in Congress, while successive U.S. administrations have essentially rejected the court’s jurisdiction.

Under President George W. Bush, the United States implemented a law that allowed the president to “use all means necessary and appropriate to bring about the release” of a U.S. or allied person detained or imprisoned by the ICC (this law was informally dubbed the “Hague Invasion Act”). The Obama administration made little formal policy change.

The Trump administration was abnormal in its hostility, but notably, some of the most fervent were the Republicans from the more-mainstream wing of the party — such as former national security adviser John Bolton and Secretary of State Mike Pompeo, with the latter claiming the court had “become corrupted” and the former saying it was “already dead to us.”

The key problem with the court, as made clear by successive administrations, is the idea that an international court could try U.S. citizens, including American soldiers. Bensouda, who had been in office since 2012, moved to open proceedings into war crimes in Afghanistan, the first investigation opened by the court that would involve U.S. troops. When the ICC approved the investigation in 2020, the United States responded with sanctions.

Relations improved from this nadir under the Biden administration, but it took months for the administration to remove sanctions on the court’s prosecutors.

After the Taliban takeover of Afghanistan in 2021, Khan announced he would focus on alleged crimes by the extremist group and the Islamic State-Khorasan, a rival.

A growing movement against illegal war

The war in Ukraine could prove to be a chance to reimagine the U.S. relationship with the ICC. Last year, a group of lawmakers led by hawkish Republican Sen. Lindsey O. Graham passed a new law that allowed more scope for cooperation with the court, with Graham praising Putin for rehabilitating “the ICC in the eyes of the Republican Party and the American people” during a trip to The Hague.

Biden and other senior officials have spoken of the need for justice in Ukraine, with the president himself calling for Putin to face a war crimes trial.

It wouldn’t be a huge change. Washington has played a key role in numerous war crimes investigations over previous years, including some that took place at the ICC itself. The U.S. government’s vast intelligence capabilities could well prove important in any legal case going forward, while U.S. backing could also help settle a split between the ICC and the European Union over a potential special court put forward by the latter.

But the old adversarial relationship isn’t entirely gone either. The New York Times reported last week that the Pentagon was blocking the sharing of evidence with the court, wary that it could create a precedent that could be used against U.S. citizens.

Adam Keith, director for accountability at Human Rights First, warned in Just Security this month that the United States’ “muddled” official stance on the ICC could leave it “flat-footed and unable to assist” when the court begins to issue arrest warrants.

Oddly, the U.S. position on the ICC is the same as the one that Russia has taken in regard to the court — an argument that the ICC has no jurisdiction over countries that are not party to it. Russia, much like the United States, signed the Rome Statute but much later withdrew from it. On Tuesday, Kremlin spokesperson Dmitry Peskov told reporters: “We do not recognize this court; we do not recognize its jurisdiction.”

The court, however, maintains that it can pursue cases in Afghanistan and Ukraine as they are ICC member states. That idea is not necessarily unusual. If a U.S. citizen commits a crime in France, it is expected that they would be tried in the French legal system.

The Biden administration has pushed back against other international rules — including the World Trade Organization, with the United States refusing to accept that body’s rulings when they went against U.S. interests. But perhaps with the ICC, his administration may forego a policy of America First to help its ally Ukraine.