The United States and the Court of Last Resort

The reversal of U.S. sanctions against the International Criminal Court is a step in the right direction, but the state of future relations remains to be seen

Last week was an eventful one for the International Criminal Court (ICC): on March 30, human rights advocates welcomed the Appeals Chamber’s unanimous confirmation of the conviction of Bosco Ntaganda of the Democratic Republic of the Congo (DRC), whom the Court had found guilty in 2019 of 18 counts of war crimes and crimes against humanity committed in the DRC in 2002 and 2003.

Aside from serving as a reminder of the extent of the heinous crimes for which Ntaganda  was convicted  – among them sexual slavery and rape of child soldiers – the news was an occasion to recall the role that the United States played in brokering the initial surrender and transfer of Ntagnada to The Hague in 2013. Given the lack of formal relations between the United States and the Court, the move was incredibly significant. Ambassador Stephen J. Rapp, Physicians for Human Rights (PHR) board member and former U.S. ambassador-at-large for global criminal justice, coordinated U.S. efforts under the Obama administration that were critical for the trial to begin in the first place.

“The United States acted to diminish Ntaganda’s political support, to put out a reward for his capture, and then, after his surrender at the U.S. embassy in Kigali, to transfer him immediately to the ICC to face trial,” said Ambassador Rapp in a statement PHR issued last week.

The news from The Hague however was also a reminder of President Trump’s extreme and outrageous anti-ICC policy, which was still on the books at the time of the Ntaganda judgment. Executive Order 13928 on “Blocking Property of Certain Persons Associated with the International Criminal Court (ICC)” was a draconian move by President Trump that imposed economic sanctions and travel restrictions on ICC personnel. Particularly ominous language in the executive order held that individuals or organizations providing material support to the Court could also face harsh repercussions. The United States is not a party to the Rome Statute – the Court’s founding treaty – and opposes the ICC’s actions relating to the Afghanistan and Palestinian situations, as well as the Court’s assertion of jurisdiction over citizens of non-States Parties like the United States and Israel.

Since President Trump issued his executive order in June 2020, it’s been the source of widespread outrage within the human rights community, in the media, social media, and in the courts, and quickly became the focus of litigation by Open Society Justice Initiative, and the ACLU. While only in place for under a year, the executive order had already caused damage: many human rights organizations were forced to suspend their work with the Court, including on children and conflict.

Then, it seemed like someone was finally listening: on April 2, 2021, just days after the Ntaganda judgment (and days before the U.S. government was due to defend the executive order in court) the State Department announced the reversal of Executive Order 13928, noting that the measures were “inappropriate and ineffective.” In a statement later, President Biden acknowledged that, while the United States maintained its longstanding objections to the ICC investigating the conduct of U.S. citizens, the “threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

For advocates of the Court in the United States and beyond, President Biden’s announcement was welcome news, particularly given the absence of the ICC sanctions from the new administration’s rollout of initial Executive Orders on a variety of issues earlier this year.

But advocates of the Court can only remain cautiously optimistic for the next phase of U.S.-ICC relations. Despite the extensive contributions of American civil society and government to the creation of the Rome Statute in the 1990’s, the United States’ relationship with the Court has been singularly fraught, with only more tests to come. Its strong objections to an independent judicial body having scrutiny over Americans are unlikely to go away anytime soon: as demonstrated again by the Trump executive order, opponents of the Court are still willing to take extreme measures and invoke national security arguments as a basis for their objections, even if doing so threatens the livelihoods and families of lawyers, academics, and human rights advocates.

While the United States should, eventually, ratify the Rome Statute and join the ICC – PHR’s longstanding recommendation – the United States has ample opportunities now to make a difference for accountability and justice.

While the United States should, eventually, ratify the Rome Statute and join the ICC – PHR’s longstanding recommendation – the United States has ample opportunities now to make a difference for accountability and justice, just as it did in the case of Ntaganda. These efforts showed that engagement makes a difference: that is certainly true for the more than 2,000 survivors who participated in the Ntaganda trial, and to the unknown numbers of people whose lives were shattered by the horrific violence and lawlessness that he unleashed in the DRC.

One trial in The Hague will never be enough to redress the unthinkable suffering caused by the kinds of conflicts that fall under the ICC’s mandate; indeed, landmark trials at the local level in the DRC have already shown how some of these crimes can be addressed closer to home. But the demonstration that the international community takes these crimes seriously is not insignificant.

In its return to multilateral engagement, the United States needs to do more than reverting to old attitudes, and it needs to be bolder than just “being back.” If the Biden administration is to lay the groundwork for future U.S. leadership on issues of rule of law and international justice, it must start by reviving its historical dedication to advancing accountability for serious crimes – from Nuremberg to the trials for atrocities perpetrated in Rwanda and the former Yugoslavia – and recommit to championing human rights both at home and abroad.

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