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Monday, April 12, 2021

Explained: The significance of Biden lifting Trump-imposed sanctions on ICC officials

The Biden administration has lifted the sanctions and visa bans on officials of the Hague-based International Criminal Court. How have US-ICC relations shaped over the years?

By: Explained Desk | New Delhi |
Updated: April 7, 2021 2:52:14 pm
The Biden White House has now reversed the measures, in what experts believe to be part of efforts to bring Washington back to the multilateral fold.(AP Photo: Carolyn Kaster)

The Biden administration announced another important shift from the policies of former President Donald Trump on Friday, lifting the sanctions and visa bans that had been placed on officials of the Hague-based International Criminal Court.

The US under Trump had gone after ICC officials involved in investigations into possible war crimes by US troops or those of its allies, with then-Secretary of State Mike Pompeo calling the over 120 nations-strong tribunal a “kangaroo court”.

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The Biden White House has now reversed those measures, in what experts believe to be part of efforts to bring Washington back to the multilateral fold.

What is the International Criminal Court (ICC)?

The ICC is a permanent judicial body based at The Hague in the Netherlands, and was created by the Rome Statute of 1998 (its founding and governing document). It began functioning in July 2002.

The forum was established as a court of last resort to prosecute offences that would otherwise go unpunished, and has jurisdiction over four main crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

123 nations are States Parties to the Rome Statute and recognise the ICC’s authority. Notable exceptions are the US, China, Russia, and India.

Unlike the International Court of Justice (ICJ), the ICC is not part of the United Nations system, with the UN-ICC relationship being governed by a separate agreement. The ICJ, which is among the UN’s 6 principal organs, mainly hears disputes between nations. The ICC, on the other hand, prosecutes individuals, and its authority extends to offences committed in a member state or by a national of such a state.

The ICC has been criticised for not pursuing investigations in Western countries (all 4 of its guilty verdicts pronounced so far are in trials from Africa), as well as for working inefficiently. In 2019, the court ordered an independent expert review of its own functioning to address these concerns.

How have US-ICC relations shaped over the years?

The Clinton administration (1993-2001) was involved in Rome Statute negotiations, and signed the document in 2000. However, the next president, George W. Bush in 2002 had the US “unsign” the Statute and signed into law the American Service-Members’ Protection Act to protect US nationals from the ICC’s reach.

Its differences with the ICC notwithstanding, Washington adopted a positive approach towards the forum during several instances– in 2005 it did not veto a UN Security Council request to the ICC to investigate crimes during the Darfur crisis and in 2011 voted for Libya’s referral to the court. The US also provided critical support in transferring suspects from Africa to the ICC for trial.

After the election of Donald Trump, relations again soured, with the Republican President declaring at the UN General Assembly in 2018, “The United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”

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So, what led the US to impose sanctions?

In 2019, much to Washington’s chagrin, the ICC’s Gambian-born chief prosecutor Fatou Bensouda asked for a formal probe into alleged atrocities committed during the Afghanistan War between 2003 and 2014– leading to possible indictments of US military and CIA officials. The same year also saw an investigation being launched into alleged war crimes in the Palestinian Territories, including by Israeli forces.

The Trump administration responded by announcing the strict punitive measures that are generally reserved for use against terror groups and those accused of abusing human rights.

It announced visa restrictions and economic sanctions on ICC officials directly involved in probes against its nationals or those of its allies, and anyone who had “materially assisted, sponsored, or provided financial, material, or technological support” to these officials. The restrictions also extended to the officials’ family members.

Bensouda was slapped with financial sanctions and a US visa ban. Sanctions were also imposed on Phakiso Mochochoko, head of the ICC’s Jurisdiction, Complementarity and Cooperation Division. Many court staffers were slapped with visa bans.

What has Biden done now?

On Friday, Biden removed all these sanctions and visa bans– a move seen as part of the Democrat President’s efforts to move the US away from his Republican predecessor’s more unilateral foreign policy.

Since taking office in January this year, Biden has rejoined several international bodies that Trump had pulled out of– the Paris climate accord, the World Health Organisation, and the UN Human Rights Council. Efforts are also reportedly underway to restore the Iran nuclear deal.

Will relations with the ICC improve under Biden?

Not necessarily. While Biden described the Trump sanctions as neither “effective or appropriate,” he said that the US would “vigorously protect current and former United States personnel” from any ICC attempts to exercise jurisdiction over them, Reuters reported.

Secretary of State Anthony Blinken reiterated Biden’s message, saying that the US continues to “disagree strongly” with the ICC’s decision to investigate war crimes in Afghanistan and the Palestinian Territories, and that it objects to ICC “efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”

Nevertheless, Blinked did signal a thaw in relations with the court, saying, “We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions”.

He added that Washington was encouraged that a broad range of reforms were being considered to help the ICC “prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes”.

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