Thu May 23

US hostility towards the ICC is nothing new – it has long supported the court only when it suits American interests

Written by: Andrea Furger, Graduate Researcher and Teaching Fellow in International Law, The University of Melbourne

This week, the prosecutor of the International Criminal Court (ICC) applied for arrest warrants ^[1] for three Hamas leaders, as well as Israeli Prime Minister Netanyahu and Defence Minister Yoav Gallant, in connection with the ongoing war in Gaza.

The reaction of the United States, Israel’s main backer, was swift. President Joe Biden condemned ^[2] the prosecutor’s action against Israel’s leaders as “outrageous” and accused the ICC of drawing false moral equivalence between Hamas and Israel.

While it is not yet clear if the ICC’s judges will decide to issue the warrants for Netanyahu and Gallant, the Biden administration has already hinted at the possibility of imposing US sanctions ^[3] against ICC officials.

Yet, just a year ago, when the ICC issued arrest warrants for Russian President Vladimir Putin and another Russian official for alleged international crimes in the Ukraine war, US officials were full of praise for the court. Biden welcomed the action, calling it “justified ^[4]”.

Since the Russian invasion of Ukraine, in fact, the US has continually displayed its support for the ICC. One top US official, the ambassador-at-large for global criminal justice, said ^[5] the ICC “occupies an important place in the ecosystem of international justice”.

The US’ apparent about-face when the court targeted its ally is nothing new. Nor is it surprising.

Rather, this vacillating approach is merely symptomatic of the US’ complicated relationship with the ICC since its creation in 1998. Its hostile reaction to the Israel-Palestine situation will certainly have been expected by court officials.

Wariness from the court’s inception

I worked for many years as a cooperation advisor at the ICC’s office of the prosecutor. During that time, Washington’s position towards the court shifted several times – it supported the court at certain times and criticised it at others.

This has largely been tied to a broader assessment of US foreign policy goals and the anticipated costs and benefits that supporting the court could bring.

The US was initially a keen supporter of the creation of a permanent international criminal court and was an active participant in the ICC treaty negotiations in the 1990s.

But it ultimately voted against the Rome Statute that created the court ^[6] in 1998 due to concerns with the court’s jurisdictional framework. The US feared it could allow for the prosecution of Americans without US consent.

Although the US still signed the Rome Statute, President George W. Bush later effectively unsigned ^[7] it, saying the US would not ratify the document and had no legal obligations to it.

The US remains a non-member state to the ICC today.

Once the ICC was created, the US adopted laws to restrict its interactions with the new court. Most importantly, it passed the American Servicemembers’ Protection Act of 2002 (ASPA) that prohibited providing any support ^[8] to the ICC.

This law also allowed the US president to use “all means necessary” – a phrase understood to include armed force – to free American officials or servicemembers should they ever be detained for prosecution in The Hague, the seat of the ICC. This earned it the nickname of “The Hague Invasion Act ^[9]”.

That same year, however, an amendment was passed to the law allowing exceptions for when the US could assist international courts to bring to justice:

Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of al-Qaeda, leaders of Islamic Jihad and other foreign nationals.

The amendment created significant flexibility, demonstrating that the US was ready to assist international justice efforts as long as they targeted designated US “enemies” or other foreign nationals.

US support in African cases

The US soon adopted a pragmatic approach towards the court, supporting its activities depending on the circumstances and its interests.

In 2005, Washington allowed a UN Security Council referral ^[10] to the ICC in relation to possible genocide and war crimes committed in Darfur, Sudan. The conflict was among the US’ top foreign policy priorities in Africa at the time.

Later, the Obama administration formally adopted ^[11] a “case-by-case” strategy to cooperate with the ICC when it aligned with US interests.

Under this policy, the US played an important role in the 2011 referral ^[12] of alleged crimes against humanity and war crimes committed in Libya to the ICC. This was, again, in line with US foreign policy interests.

US diplomats also provided vital support in the arrest of Congolese warlord Bosco Ntaganda, who was later sentenced ^[13] to 30 years in prison by the ICC for war crimes and crimes against humanity. And the US assisted with the arrest of Dominic Ongwen of the Lord’s Resistance Army in Uganda, who was later sentenced ^[14] to 25 years.

In this 2016 photo, Dominic Ongwen, a senior commander in the Lord’s Resistance Army enters the courtroom of the ICC. Peter Dejong/AP Pool

Another falling out over Afghanistan

The relationship between the US and the court soon soured again, though, during the Trump administration.

This was in part because of developments in the ICC’s investigation into alleged crimes committed in Afghanistan ^[15], which marked the first time ^[16] the court probed possible crimes committed by US forces.

In 2020, ICC judges authorised ^[17] an investigation into US, Afghan and Taliban forces. Soon after, the US imposed sanctions ^[18] on the ICC prosecutor, Fatou Bensouda, and another senior ICC official.

After some delays, the investigation is continuing ^[19] again, with a focus ^[20] solely on crimes allegedly committed by the Taliban and Islamic State Khorasan Province. Other aspects of the investigation have been “deprioritised”, an implicit reference ^[21] to the US and its allies.

Fatou Bensouda, the chief prosecutor of the ICC until 2021. Peter Dejong/AP Pool

Soon after taking office, the Biden administration lifted the sanctions ^[22] against the ICC officials, returning to a seemingly more collaborative period in US-ICC relations.

These relations became closer following the Russian invasion of Ukraine, with the adoption of new laws that broadened the possibilities of US cooperation ^[23] with the court. The goals of the US and ICC had seemingly aligned again, at least for the time being.

But this week’s request for arrest warrants for Israeli leaders demonstrates yet another shift in the US approach to the court. It continues the pattern of the US supporting the court when it suits it, prioritising its own foreign policy goals over wider international criminal justice efforts.