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1. Trump from Michael_Novakhov (197 sites): Just Security: The Biden Administration Should Engage with the ICC – the Evidence Shows That It Saves Lives

(Editor’s Note: This article is the second in a Just Security mini-series on Rebalancing the US-ICC Relationship. You can find the first article here.)

The United States’ position with respect to the International Criminal Court (ICC) has shifted back and forth depending on whether a Republican or a Democrat was President.  Under President Bill Clinton, U.S. negotiators played a key role in drafting the Rome Statute.  President George W. Bush, on the other hand, “unsigned” the Rome Statute and negotiated Article 98 bilateral immunity agreements with other countries in a bid to insulate U.S. citizens from the ICC’s jurisdiction.  President Barack Obama’s administration switched to a policy of engagement with the Court under which the United States publicly supported the Court’s work, engaged with the Court’s members, and assisted with ICC investigations.  President Donald Trump returned to an antagonistic relationship with the Court.  In 2018, he declared that the U.S. would not support the ICC, which he derided as an “unelected, unaccountable, global bureaucracy.”  Then, in 2020, Trump imposed sanctions on several ICC employees, including the Court’s Prosecutor.  Now, President Joe Biden will decide the next four years of U.S. policy towards the ICC.

Options for Engagement

So, how should President Biden approach the ICC?  Biden has said that his administration will support multilateral institutions and put human rights “at the center of our efforts to meet the challenges of the 21st century.”  This implies that the United States will once again support the ICC, though so far, Biden has declined to say what his ICC policy will be.  Of course, even if the Biden administration adopts a friendly posture toward the Court, it is extremely unlikely that the United States will become an ICC member because ratification of the Rome Statute would be inordinately difficult.  Article II, Section 2 of the US Constitution requires that two-thirds of the Senate concur before the United States can join a treaty. With Democrats having the narrowest possible majority in that chamber and many senators holding skeptical views of the Court, there is no chance that the Senate will ratify the Rome Statute in the immediate future.

Yet, the incoming Biden administration can still support the ICC without becoming a member.  If the United States followed the Obama administration’s model, it could engage with the Assembly of State Parties (ASP) and with individual ICC members to shape the direction of the Court.  The United States can almost certainly achieve more through engagement with the Court than either Bush or Trump did by shunning it.  The United States could publicly support the Court, particularly in areas where the Court’s approach reinforces the United States’ own commitment to human rights, and could also take concrete action to support the Court.  This might involve voting in favor of the referral of appropriate matters to the ICC at the Security Council or providing technical and logistical assistance to the Office of the Prosecutor.  The United States could also use its considerable “soft power” to persuade other countries to cooperate with the Court, including by surrendering those individuals who have been indicted by the ICC.  And, of course, the United States could lift the sanctions on ICC personnel that were imposed by President Trump.

Impediments to Engagement

The main obstacle to U.S. cooperation with the Court is the ICC’s ongoing investigation into crimes committed in Afghanistan.  While the ICC is focused primarily on crimes committed by Afghan and other non-U.S. nationals, including members of the Taliban and ISIS, the investigation could lead to charges against U.S. military and intelligence personnel for crimes including torture, cruel treatment, rape, and sexual violence.

But this investigation is largely a result of the U.S. failure to see justice done domestically.  It is now widely acknowledged that the United States committed torture (and other crimes) in Afghanistan and elsewhere under Bush.  Obama acknowledged that crimes were committed but chose not to prosecute them.  In the end, neither the Obama administration or the Trump administration took meaningful steps to investigate or prosecute crimes they knew had occurred.  This failure is at the root of the problem.

After all, the simplest way to end the ICC’s investigation of U.S. citizens would be for the United States to conduct investigations and prosecutions itself. Under Article 17 of the Rome Statute, the ICC lacks jurisdiction over a case if a State with jurisdiction over the matter conducts genuine investigations or prosecutions.  (As an aside, investigations would be beneficial for reasons beyond rendering the ICC’s investigation moot.  The failure to investigate crimes committed during the “war on terror” is part of the assault on the rule of law that has occurred since 9/11 and which culminated in the Trump administration’s lawlessness.  If the United States is to continue as a rights-based democracy that respects the rule of law, then it must pursue accountability for government misconduct. For a full discussion of the policy argument for these investigations, see Kip Hale’s article).  However, if investigations in the United States are politically impossible, then the Biden administration could still try to work with the ICC in areas where their goals overlap.

The Empirical Case for the Court

But should President Biden support the Court?  As a result of the ICC’s investigation in Afghanistan, there is likely to be a political cost to cooperating with the Court.  Given this cost, does it make sense for the Biden administration to expend political capital supporting the ICC?

The answer partly depends on the Court’s effect on the world.  After all, there are many criticisms of the Court.  It is slow and expensive.  It has tried a relatively small number of cases.  There have been problems with several high-profile cases, including the suspension of the ICC’s investigation in Darfur and the collapse of the prosecution of President Kenyatta of Kenya.  It is either too political or not political enough.  Given these problems, many commentators have suggested that the Court is in crisis, and perhaps not worth the political cost of engagement.

Yet these criticisms miss a very important point.  The ICC’s success is not determined by how many people it indicts, how much it costs, or the outcome of high-profile cases.  Rather, the ICC’s success is determined primarily by its effect on the world.  The main purpose of the ICC is to prevent violations of international criminal law.  As the Preamble of the Rome Statute says, the ICC was created to avert the commission of “atrocities that shock the conscience of humanity.”  Thus, if the ICC can prevent violations from occurring, then it is succeeding.

While many scholars have offered opinions on whether or not the ICC can prevent violations of international criminal law, until recently there was little empirical evidence one way or another.  That has now changed.  Courtney Hillebrecht has studied the effect of ICC intervention in Libya and found that the number of civilians killed by the Libyan government decreased after ICC intervention.  James Meernik looked at the relationship between the ICC and human rights violations and found that States with a strong commitment to the ICC had higher levels of human rights protection, fewer human rights abuses, and fewer instances of internal violence.  Meernik controlled for a state’s underlying commitment to human rights.

Hyeran Jo and Beth Simmons investigated the effect of the ICC on violence against civilians across a wide range of countries over a period of more than twenty years.  They found that joining the Rome Statute, adopting a statute criminalizing violations of international criminal law, and ICC intervention in a State were all correlated with reductions in civilian deaths.  Benjamin Appel explored whether ratification of the Rome Statute was associated with a change in human rights violations.  He found, even after controlling for numerous variables associated with respect for human rights, that States that ratified the Rome Statute had fewer human rights violations than non-ratifiers.

These empirical articles are startling in their uniformity.  They approach the problem from different angles, use different methodologies, and different data sets.  They control for the factors commonly associated with human rights compliance.  Yet, all of them find a statistically significant effect of the ICC that is independent of the state’s underlying commitment to human rights.  In each of these studies, the ICC reduces violence.  There are no empirical articles that find the ICC either increases violence or prolongs conflict.  In short, there is now persuasive evidence that the ICC both prevents violations of international criminal law and reduces the violence associated with those violations.  This means that the ICC is succeeding.

Moreover, it means that the ICC is a powerful force for human rights.  When States join the ICC, when they criminalize violations of international criminal law in their domestic law, and when the ICC intervenes in situations where violations are occurring, violence decreases.  In other words, the ICC saves lives.  This makes the Court a natural fit with Biden’s foreign policy goals.  He is committed to human rights and he can advance that commitment through engagement with the ICC.

Image: International Criminal Court (ICC) chief prosecutor Fatou Bensouda (C) and deputy prosecutor James Stewart (R) attend the initial appearance before judges of member of the board of the Confederation of African Football (CAF), Patrice-Edouard Ngaissona of the Central African Republic, at the ICC in The Hague on January 25, 2019, following his extradition from France on charges of war crimes and crimes against humanity. – Ngaissona is charged with coordinating so-called anti-Balaka militia which emerged after civil war broke out in the Central African Republic (CAR) in 2013. (Photo by KOEN VAN WEEL/AFP via Getty Images)

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