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Biden Repeal of Trump ICC Sanctions Welcome, But Concerns Remain

April 6, 2021 by Dan McCue
ICC prosecutor Fatou Bensouda on the BBC in 2017.

WASHINGTON – Human rights organizations around the world cheered President Joe Biden’s decision to cancel punitive sanctions against the International Criminal Court, but they also agree serious obstacles remain to achieving justice for some of the world’s worst crimes.

The court was created in 2002 to hold accountable perpetrators of war crimes and crimes against humanity in cases where adequate judicial systems were not available in the countries where the crimes occured.

As of December 2020, the ICC had 123 member states; another 42 states have some interaction with the court, but have not signed or become parties to its central document, the Rome Statutes.

The United States has belonged to the latter group since the founding of the ICC, out of concern the court might be used for politically motivated prosecutions of American troops and officials.

President Bill Clinton set the standard for criticizing the court, though some of his predecessors, notably President Barack Obama, did manage to engage in some small level of cooperation with it.

That all changed with the Trump administration, which was openly hostile to the tribunal from the start, and was particularly critical of Chief Prosecutor Fatou Bensouda, and the court´s Head of Jurisdiction, Phakiso Mochochoko, for pressing ahead with prosecutions of Americans for actions in Afghanistan and Israelis for actions against the Palestinians.

The Trump administration accused the ICC of infringing on U.S. national sovereignty when it authorized an investigation into war crimes committed by Afghan forces, the Taliban or U.S. troops.

In September, it targeted court staff, including Bensouda, with asset freezes and travel bans for investigating American citizens without U.S. consent.

The ICC said the sanctions were an attack on international justice and the rule of law.

Though President Biden’s executive order wipes the slate clean of Trump’s belligerent policy, the U.S. continues to reject the ICC’s claims to jurisdiction over the U.S. and Israel.

Nevertheless, the move is seen as another attempt to re-engage with the foreign policy community after four years of semi-isolationism under Trump.

Since taking office, the Biden administration has rejoined the World Health Organization, re-engaged with the U.N. Human Rights Council, returned to the Paris climate accord and started talks aimed at returning to the Iran nuclear deal. 

Among those who cheered the administration’s decision on the ICC was Richard Dicker, international justice director for Human Rights watch.

“The Trump administration’s perversely punitive sanctions against the ICC showed stark contempt for the victims of grave international crimes and the prosecutors who seek to hold those responsible to account,” Dicker said in a written statement.

“In removing this unprecedented threat to the global rule of law, President Biden has begun the long process of restoring US credibility on international justice through the ICC.”

Human Rights Watch had urged the Biden administration to make rescinding Trump’s executive order a priority.

Among other things, it argued, Trump’s policy created apprehension and uncertainty for nongovernmental organizations, consultants, and lawyers who work with the ICC in investigative and adjudicative capacities. 

“The ICC has its limitations, but its role as a court of last resort for the worst crimes is needed now more than ever,” Dicker said. 

“The Biden administration should back the ICC to ensure that victims get a chance for justice and that cooperation should be the rule, not the exception,” he added.

Another organization that weighed in on the change in policy was the American Civil Liberties Union.

“We are pleased President Biden has finally rescinded President Trump’s unconstitutional sanctions order. This is a victory for our clients and all those who support the ICC’s pursuit of justice,” said Scarlet Kim, staff attorney with  the ACLU’s National Security Project. 

“The unprecedented sanctions on the ICC were yet another terrible legacy of the Trump administration, which made clear its disregard for human rights and the rule of law,” Kim said.

The ACLU has maintained that Trump’s sanctions had devastating consequences for many of its clients. 

“[They] ground my work to a halt,” said Leila Sadat, special adviser on crimes against humanity to the prosecutor of the ICC.

“This decision by the Biden administration opens the door for me and my co-plaintiffs to be able to return to our essential human rights work,” she said.

The Center for Constitutional Rights said in a statement that Trump’s sanctions “set a dangerous precedent for attacks on victims, lawyers, human rights advocates, and courts, and Biden’s repeal is a welcome – if overdue – step toward curtailing U.S. obstruction of accountability at the International Criminal Court for the most serious crimes.

“With the odious Executive Order rescinded, the United States has an opportunity to reset its relationship with the ICC – and justice issues more broadly. It can demonstrate that its pledge to ‘stand against human rights abuses wherever they occur, regardless of whether the perpetrators are adversaries or partners’ is more than just rhetoric.

“To do so, it must cease efforts to undercut the independence of the ICC, whether through direct threats or punishments on those seeking justice, or through proxies seeking to exercise influence over the court’s docket through decisions about its budget,” the organization said. “It must affirmatively support victims and their advocates and denounce smear campaigns against them. And it must cease speaking of ‘peace’ and ‘justice’ as binary choices rather than mutually reinforcing principles.

“The last four years were marked by utter disregard for human rights and the rule of law,” the group concluded. “To turn that page, the United States must finally make good on the mantra that ‘no one is above the law.’”

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