What President Biden and the ICC Prosecutor Should Do to End the United States–ICC Conflict
While I think the Trump Administration’s rhetorical and legal assault on the Court and the Prosecutor were unbalanced and likely counterproductive, any U.S. Administration, Republican or Democratic, would have responded forcefully to an ICC request to open an investigation of the United States. Biden Administration officials can be expected to reject the Afghanistan investigation as outside the scope of the Rome Statute. […] For his part, President Biden should take the first step towards a rapprochement by rescinding President Trump’s misguided Executive Order 13928 authorizing the imposition of sanctions on the ICC and by lifting the sanctions on Bensouda. At the same time, Biden Administration officials should communicate directly to the Prosecutor and through intermediaries that the United States is prepared to resume support for the Court, but only if the Court ceases its unnecessary investigation of the United States.
One of the numerous foreign policy messes President-elect Biden will inherit from the Trump Administration is the nasty war between the United States and the International Criminal Court. Over the last two years, the Trump Administration has launched a full-scale rhetorical and legal assault on the Court, including issuing Executive Order 139281 imposing sanctions on persons associated with the ICC and designating Prosecutor Fatou Bensouda for sanctions, after Bensouda sought and received authorization from the Court to open an investigation of alleged abuse by U.S. personnel of detainees in and relating to Afghanistan. Although Trump’s Executive Order and sanctions were a gross over-reaction and unworthy of the United States, Bensouda can also be faulted for picking an unnecessary fight. After Biden takes office in January, both he and Bensouda (or her successor) should take steps to de-escalate and end the conflict, which undermines the work of the Court, damages the reputation of the United States, and hurts the cause of international criminal justice.
The Trump Administration’s war on the ICC, spearheaded by then National Security Advisor John Bolton, sets the clock back more than a decade to the initial confrontation between the United States and the Court that existed from 2002–2004 in the first term of the Bush Administration, when Bolton (then Under Secretary of State) was the principal architect of U.S. policy towards the Court. During that period, the United States “unsigned” the Rome Statute (in the form of a letter from Bolton to the U.N. Secretary General stating that the United States did not intend to become a party)2 and, pursuant to the American Servicemembers’ Protection Act of 2002 (ASPA),3 cut off aid to countries that refused to sign so-called Article 98 agreements committing not to surrender Americans to the Court. (It is worth noting for the historical record that then Senator Biden voted against the ASPA, while then Senators Hilary Clinton and John Kerry voted for ASPA, including its authorization to use all necessary means to secure the release of Americans detained by the ICC.)
I am personally disappointed to see the resumption of hostilities between the United States and the Court because I had worked hard in the Bush Administration’s second term, when I was Legal Adviser, to develop a more pragmatic modus vivendi with the Court, emphasizing the common ground on issues of international justice between the United States and the Court and its supporters, and cases where we could work together, even if the United States did not intend to join the Rome Statute. Starting in 2005, the Bush Administration agreed to support some of the Court’s investigations, including the genocide in Darfur. President Bush waived restrictions on counterterrorism assistance to many ICC members after Secretary of State Condoleezza Rice publicly remarked in 2006 that the restrictions were like “shooting ourselves in the foot.”4 And I gave numerous speeches between 2005 and 2008 expressing United States willingness to support the Court’s Darfur investigation and other appropriate cases.5
By the end of the Bush Administration, ICC watchers had begun to comment on the shift in position. In an article entitled “U.S. Accepts International Criminal Court,” the Wall Street Journal quoted lengthy remarks I gave on the tenth anniversary of the Rome Statute in 2008 (which John Bolton derided as “pabulum” at the time) in which I urged ICC parties and the United States to “seiz[e] opportunities for cooperative efforts where they exist and avoid […] pitfalls that risk reigniting past tensions.”6 I concluded:
The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.7
The Obama Administration continued and increased the cooperation between the United States and the Court begun during the Bush Administration. Although President Obama did not seek Senate approval to ratify the Rome Statute, his Administration participated in the Assembly of State Parties and sought to support certain of the Court’s investigations, consistent with restrictions in ASPA.
Somewhat surprisingly, given its anti-international bent, the Trump Administration ignored the Court for its first year in office until the Prosecutor applied to open her investigation of the United States in November 2017. Bensouda was under significant pressure from African countries to show that the Court was not simply an “African Criminal Court” and was willing to investigate powerful countries like the United States.
It’s unfortunate for the Court that the Prosecutor chose to pick a fight with the United States, and her timing could not have been worse. The threat by an international court to investigate the U.S. military and the CIA was too much political red meat for the Trump Administration to resist in a U.S. election year. Trump’s appointment of John Bolton as National Security Advisor in March 2018 guaranteed a nasty confrontation between the United States and the Court. Although Bolton could easily have focused on Iran, North Korea, China, Russia, or other international adversaries, he chose the ICC as the sole focus of his first major public address. In his speech to the Federalist Society in September 2018,8 he blasted the Court as “ineffective,” “unaccountable,” “deeply flawed” and “outright dangerous.” He said the ICC unacceptably threatens American sovereignty and U.S. national security interests. He criticized the ICC prosecutor’s request as “utterly unfounded” and “unjustifiable.” He said that the United States will “use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.” Breaking with the previous thirteen years, he insisted that the United States would not cooperate with the ICC and would provide no assistance to the Court. And if the ICC “comes after the United States,” he said, the United States would “fight back” by banning its judges and prosecutors from entering the United States, freezing their assets, and prosecuting them in the U.S. criminal justice system. The United States would do the same for “any company or state that assists an ICC investigation of Americans.”9
I should note here that, while I think the Trump Administration’s rhetorical and legal assault on the Court and the Prosecutor were unbalanced and likely counterproductive, any U.S. Administration, Republican or Democratic, would have responded forcefully to an ICC request to open an investigation of the United States. Biden Administration officials can be expected to reject the Afghanistan investigation as outside the scope of the Rome Statute.
Seven months after John Bolton’s speech, in April 2019, the Court’s Pre-Trial Chamber (PTC) rejected Bensouda’s request after concluding that an investigation “would not serve the interests of justice.”10 The PTC noted that the prospects for a successful investigation and prosecution were extremely limited and that the Court should prioritize activities that would have better chances to succeed.11 Although the PTC’s decision was a reasonable interpretation of the Rome Statute, the decision was criticized by many as a cowardly capitulation to the Trump Administration’s threats. Undaunted, the Prosecutor appealed to the Court’s Appeals Chamber, which in March 2020 reversed the PTC and authorized Bensouda to proceed.12 Trump promptly retaliated in June with Executive Order 1392813 and the Treasury Department subsequently designated Bensouda and another ICC official for sanctions.14
Although I argued at the time that the Court and the Prosecutor should avoid a fight with the Trump Administration,15 it is understandable that neither was willing to back down in the face of Trump’s threats. But having now made the ideological point that the Court will not be cowed, and with the inauguration of a new President who undoubtedly would prefer to support the Court for the next four years than fight with it, now would be a very good time for the Prosecutor to act more pragmatically.
Bensouda surely recognizes that an investigation of the United States for actions nearly twenty years ago is unlikely to succeed and will waste the Court’s limited resources, already stretched far too thin. Indeed, if the Prosecutor were to go forward, whom should she investigate? Her application lists dozens of offenses allegedly committed by U.S. armed forces and CIA personnel. Should she focus on the military commanders and civilian Defense Department officials responsible for the abuse of detainees in Afghanistan? Should she pursue the Director of Central Intelligence (a Democrat who had been appointed to his position by President Clinton) and numerous CIA officials who proposed and implemented the controversial CIA interrogation program? Should she indict the Attorney General and Department of Justice lawyers who wrote or endorsed the disputed legal opinions upon which executive branch officials relied? (For the record, when I was Legal Adviser, I disagreed in writing with the Department of Justice analysis, arguing that the CIA program was not consistent with Common Article 3 of the Geneva Conventions.)16 How about the President and Vice President, who accepted the recommendation of the CIA Director and the legal advice of the Attorney General? Or, perhaps, she could go after the dozens of members of Congress from both parties who oversaw and appropriated money for the program? The Prosecutor surely knows there is no possibility that any U.S. official will ever be arrested and prosecuted in the Hague. And if the likelihood of prosecutions is zero, is conducting a multi-year investigation of twenty-year-old offenses worthwhile to prove a point?
Some supporters of the Court will argue an investigation of the United States is necessary to demonstrate that there is no impunity even for powerful countries. This is an understandable argument, but it is not pragmatic. Conducting an investigation of hundreds of senior U.S. officials would be an enormous distraction for the Prosecutor and the Court, both of which are already struggling with many other problems, and would prevent them from concentrating on other more serious cases with higher likelihoods of success. It would prevent a U.S. Administration predisposed to support the Court from helping the Court with other investigations. And it would force countries that are friends of the Court and the United States to choose between the Court or good relations with the United States.
Although Bensouda has received approval from the Appeals Chamber to open an investigation of the United States,17 she (or her successor) has legitimate reasons under the Rome Statute not to pursue it. First, although the Prosecutor concluded that the allegations of detainee abuse against the United States satisfied the Rome Statute ’s gravity requirement, she could also conclude that they are not as serious in number or gravity as the numerous acts of murder and rape committed in other countries that are subjects of ICC investigations. The Court was created to investigate and prosecute the “most serious crimes” of concern to the international community. It simply does not have the capacity to investigate every offense within the scope of the Rome Statute. Second, the Prosecutor could have concluded (and could still conclude) that, under Article 17 of the Rome Statute,18 the ICC does not have jurisdiction because the United States has conducted investigations of the allegations of detainee abuse by U.S. military personnel and the CIA. Indeed, Bensouda’s conclusions with respect to the United States rely primarily on thousands of pages of public findings and conclusions from investigations already conducted by the United States, including the Senate Intelligence Committee, the Senate Armed Services Committee, the Church Report, the Fay Report, the Jacoby Report, the Schlesinger Report, and the Department of Justice’s OPR Report. (The United States conducted other non-public investigations as well, including by Department of Justice Special Counsel John Durham and the CIA inspector general.) The Prosecutor concluded, however, that these numerous U.S. investigations were not sufficiently comprehensive, in part because President Obama chose not to investigate Executive branch officials who had relied on legal advice from the Department of Justice. Bensouda did state that she would:
[C]ontinue to assess the existence of national proceedings for as long as the situation remains under investigation, including in relation to any additional information that may be provided by relevant States.19
This leaves the door open for her to conclude that the United States has conducted sufficient investigations, even if not every U.S. official has been investigated. Finally, the Prosecutor would also be justified in concluding, under Article 53(1)(c) of the Rome Statute, that in light of the unlikelihood of a successful prosecution by the Court and the need to prioritize the Court’s resources, it would not “serve the interests of justice” to proceed with an investigation. The PTC reached this conclusion, and the Prosecutor could make this same determination, especially after factoring in additional information provided by the Biden Administration.
The recommendations of the recent September 2020 report of Independent Experts on the Court support suspending the investigation of the United States.20 The report states that:
[The Experts] repeatedly heard concerns that the Court should focus on a narrower range of situations, and limit its interventions to the extent possible, focusing on situations of the highest gravity and on those most responsible for the crimes. While it is a prospect that would be disappointing for many, and further restrict the already limited jurisdiction of the Court, the current situation is unsustainable having regard to the limited resources available.21
The Experts go on to recommend that:
The Prosecutor should adopt a higher threshold for the gravity of the crimes alleged to have been perpetrated.22
They also argue:
Feasibility-related factors should be seriously considered after the opening of an investigation. Should more situations reach the investigation stage without sufficient resources available to conduct serious investigations, the OTP should hibernate deprioritised investigations.23
Bensouda may be reluctant to change course and announce that she has decided not to pursue her investigation of the United States after all, but it would make sense for her at minimum to hit the “pause” button by announcing that she is suspending her investigation until she receives more information from the United States about the investigations it has already conducted. The Prosecutor apparently held some discussions with Obama Administration officials, and she should allow Biden officials to describe the actions the United States has taken in greater detail.
Bensouda may be tempted to push Biden officials to open new investigations in order to satisfy her desire for perfect complementarity. But the Biden Administration will already have its hands full with investigations of unlawful actions by President Trump and Trump Administration officials. The Prosecutor must recognize that it would not be politically sustainable for a Biden Justice Department to conduct far-reaching and controversial investigations of senior officials (including the Presidents) in both the Bush and Trump Administrations. Although she concluded in 2017 that the numerous investigations undertaken by the United States were insufficient,24 in light of the Court’s increasingly stretched resources and the recommendations of the Independent Experts, she would now be justified in reaching a different conclusion.
For his part, President Biden should take the first step towards a rapprochement by rescinding President Trump’s misguided Executive Order 13928 authorizing the imposition of sanctions on the ICC and by lifting the sanctions on Bensouda. At the same time, Biden Administration officials should communicate directly to the Prosecutor and through intermediaries that the United States is prepared to resume support for the Court, but only if the Court ceases its unnecessary investigation of the United States.
The Prosecutor will then have a choice: She could continue an ideological crusade by conducting an investigation of the United States that is likely to go on for years, strain the Court’s resources, and ultimately prove unsuccessful, all while antagonizing a U.S. Administration that is prepared to support the Court during a period in which the Court is urgently in need of help and reform. Or she could take a more pragmatic approach by focusing on investigations of greater gravity that are more likely to succeed and resuming the constructive working relationship between the Court and the United States that existed from 2005–2017.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107–206, §§ 2001–2015, 116 Stat. 820, 899–909 (Aug. 2, 2002), available online.
(The American Service-Members’ Protection Act (ASPA) was passed as Title II of this legislation and codified at 22 U.S.C. §§ 7421–7432). ↩
International Courts and Tribunals and the Rule of Law (May 11, 2006), available online; Legal Advisor, Remarks at the DePaul University College of Law, The United States and the International Criminal Court: Where We’ve Been and Where We’re Going (Apr. 25, 2008) [hereinafter Bellinger’s DePaul Remarks], available online; Legal Advisor, Remarks at the Fletcher School of Law and Diplomacy, U.S. Perspectives on International Criminal Justice (Nov. 14, 2008), available online. ↩Legal Advisor, Remarks at George Washington Law School,
Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩
Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020) [hereinafter ICC Authorization of Afghanistan Investigation], available online. ↩
Letter from John B. Bellinger, III, Legal Advisor, U.S. Dept. of State, to Steven G. Bradbury, Actg. Asst. Atty. Gen., Dept. of Justice, Response to OLC Draft Opinion on Enhanced Interrogation Techniques (Feb. 9, 2007), available online. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online. ↩
Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017) [hereinafter OTP Request for Authorization], available online. ↩
Suggested Citation for this Comment:
What President Biden and the ICC Prosecutor Should Do to End the United States–ICC Conflict, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions#Bellinger.,
Suggested Citation for this Issue Generally:
Is It Appropriate or Effective for the United States to Attempt to Influence the Actions of the International Criminal Court by Means of the Sanctions Set Forth in President Trump’s June 2020 Executive Order?, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions.