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Revisited: What are the next steps in the US-ICC relationship?

Beyond the ICC: Rebuilding the Scaffolding for International Justice with the United States

by Betsy Apple

President Joe Biden, in ongoing repudiation of his predecessor’s abuse of presidential power, issued Executive Order 14022 on April 2, which revoked a prior, ignoble executive order authorizing crippling civil and criminal penalties against supporters of the International Criminal Court. Much has been written about Executive Order 13928—from an explanation by the four eminent international law professors who stood as plaintiffs alongside the Open Society Justice Initiative, to calls for its rescission—and its condemnation by government officials and legal experts has been well-documented.   Less examined is the decision by the Biden administration to include language in the revocation order preserving its prerogative to pursue retroactive enforcement of EO 13928 violations, even after the national emergency allegedly giving rise to it was terminated, and the order itself no longer exists. While Section 2 of EO 14022 includes boilerplate text extant in other executive orders terminating national emergencies, here such language is misplaced. The fact that it retains the authority to pursue those who allegedly violated EO 13928 during its nearly 11-month lifetime underscores the Biden administration’s stated animus against the ICC for its potential exercise of jurisdiction over non-states parties’ personnel.[1]

One needn’t rely solely on the text of EO 14022 to conclude that the US-ICC relationship is likely to remain frosty for some time to come. The length of time the State Department took to “thoroughly review” the sanctions authorized under EO 13928; Secretary of State Antony Blinken’s public utterances upon the issuance of EO 14022; and the pressure Israel exerted on the United States (directly and through proxies) to maintain the sanctions, are additional indicators. As of May 11, the ICC is monitoring the rising violence in Gaza and Jerusalem for possible war crimes, and the US response thus far—focused primarily on Israel’s right to self-defense, while condemning attacks on all sides—indicates their improbable alignment.     

A pragmatic reading of Secretary Blinken’s April 2 public statement, combined with clear-eyed consideration of the current political context, suggests that justice and accountability will not be well served by a single-minded focus on rebuilding the US-ICC relationship. Rather, now may be the time to exploit Secretary Blinken’s stated commitment to “support for the rule of law, access to justice, and accountability for mass atrocities” by focusing on how the United States can use its power to strengthen the broader international justice ecosystem within which the ICC sits. The ASIL ICC Task Force has expertly laid out a roadmap for that engagement with four categories of recommendations, and the third, “Promoting justice regardless of concerns about the ICC,” is of particular relevance.

The ecology of international justice, of course, includes not only the ICC, other international and regional courts and quasi-judicial entities, and national judicial systems, but also the web of laws and policies at the national and international level that make investigation and prosecution of perpetrators possible. To that end, three potential areas for fruitful US action bear consideration, namely: 1) identification of the limitations to domestic prosecution of international crimes and, where possible, strengthening of the institutional, legislative, or regulatory landscape in the United States to secure accountability for such crimes; 2) exploration of efforts to enhance corporate accountability in the context of mass atrocities; and 3) support of creative initiatives undertaken by other courageous state and non-state actors.

Strong institutions committed to international justice are essential to this broader US reboot, both in perception and reality. As the ASIL report notes, the State Department’s Office of Global Criminal Justice, headed by an Ambassador-at-Large, is imperative to this undertaking. A dedicated office, sufficiently resourced with expert staff, serves as a crucial focal point for justice and accountability as part of a US atrocity prevention and response strategy. In particular, this office could work with its counterparts in the Department of Justice’s Human Rights and Special Prosecutions Section, the Department of Homeland Security/Immigration and Customs Enforcement’s Human Rights Violators and  War Crimes Center, and others to undertake a review of existing US legislation that confers or might confer jurisdiction on US courts to prosecute perpetrators on US territory of atrocities, and to identify gaps and opportunities for a revived legislative agenda. For example, while US law includes a War Crimes Act and a Genocide Convention Implementation Act, a draft Crimes Against Humanity Act died in Congress in 2010 and was never reintroduced. Other gaps could be identified through a legislative audit, which might give rise to a legislative agenda championed by the White House and sympathetic members of congress, and supported by the Global Criminal Justice Office and related agencies.

In order to re-establish leadership in the spheres of human rights and justice, the United States needs to be out in front, and one powerful way to do this would be for the government to frontally acknowledge and consider how to address an enormous deficit in the justice landscape:  corporate accountability for complicity in atrocities. The challenge, of course, is the dearth of clear tools available to address accomplice liability in the United States. The whittling away of the Alien Tort Statute post-Kiobel requires innovative strategies to disincentivize corporate aiding and abetting in atrocity crimes, whether through such avenues, for example, as the creative use of business tort law, the expansion of international and transnational criminal law, or regulatory requirements prescribing adherence and penalties in the context of complicity for international crimes. Working with the State Department’s Bureau of Democracy, Human Rights, and Labor, the Office of Global Criminal Justice might conduct expert consultations to ascertain whether the UN Guiding Principles on Business and Human Rights, and other multilateral instruments, offer helpful approaches. An additional benefit of this tactic is to affirm the importance of (and the US recommitment to) multilateralism writ large.

Finally, the United States should look beyond its borders for good proposals incubated by others to secure accountability for atrocities, and then provide support for these ideas. One such example would be a treaty-based referral court for Syria atrocity crime cases, which would “pool” states’ jurisdiction as international law permits and serve as an additional venue to which states could refer cases for prosecution. Such a court, if Europe-based, would build on existing justice infrastructure (i.e. national war crimes units, specialized police, the International, Impartial and Independent Mechanism for Syria (IIIM), and the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), and would complement ongoing work undertaken by some European states and the European Union Genocide Network, which already coordinate investigations and develop collaborations across national jurisdictions. The United States has historically supported other worthy initiatives, such as the International Commission Against Impunity in Guatemala (CICIG), an independent international body created to help prosecute criminal groups which had infiltrated government institutions, threatening the establishment of post-conflict rule of law and democratic gains. By endorsing such accountability initiatives and entities, particularly where the ICC lacks the legal authority to do so, the United States would actively contribute to a stronger framework of international justice norms, which, in turn, would inure to the benefit of the ICC’s legitimacy and authority.  

These ideas are far from exhaustive; indeed, the United States could undertake myriad other actions to support the broader international justice project, from rebuilding our own Justice Department and its capacity to independently enforce and uphold international criminal (and other) law, to helping to resource war crimes offices in other countries, to providing technical assistance to states that lack the necessary specialized expertise, to serving as a constructive force at multilateral international justice meetings (including the Assembly of States Parties). All of these actions, if undertaken in a spirit of truly advancing global accountability for all—rather than limiting accountability for some—would build and strengthen the international justice scaffolding of which the ICC is a part. A more expansive approach that creates an enabling environment for accountability would benefit the ICC and yield greater rewards for the kind of justice we want the United States to support.

[1]For this reason, plaintiffs in the litigation challenging EO 13928 (Open Soc’y Justice Initiative v. Trump, No. 1:20-cv-08121, 2021 U.S. Dist. LEXIS 405, at *41 (S.D.N.Y. 2021)), secured a stipulated agreement enshrining the government’s commitment not to enforce against them for their actions enumerated in the case, and retained their ability to go back to court should the government fail to abide by that commitment.

Betsy Apple

Betsy Apple is the Advocacy Director at the Open Society Justice Initiative in New York. She was part of the legal team that sued the Trump Administration in Open Society Justice Initiative v. Trump, et al.