Washington’s approach to the court has largely been tied to a broader assessment of U.S. foreign policy goals and the anticipated costs and benefits that supporting the court could bring.
The International Criminal Court is pictured in The Hague, Netherlands. (Photo: Vysotsky/Wikipedia/CC BY-SA 4.0)
This week, the prosecutor of the International Criminal Court, or ICC, applied for arrest warrants for three Hamas leaders, as well as Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, in connection with the ongoing war in Gaza.
The reaction of the United States, Israel’s main backer, was swift. U.S. President Joe Biden condemned 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 U.S. sanctions against ICC officials.
The U.S.’ apparent about-face when the court targeted its ally is nothing new. Nor is it surprising.
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, U.S. officials were full of praise for the court. Biden welcomed the action, calling it “justified.”
Since the Russian invasion of Ukraine, in fact, the U.S. has continually displayed its support for the ICC. One top U.S. official, the ambassador-at-large for global criminal justice, said the ICC “occupies an important place in the ecosystem of international justice.”
The U.S.’ 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 U.S.’ 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 criticized it at others.
This has largely been tied to a broader assessment of U.S. foreign policy goals and the anticipated costs and benefits that supporting the court could bring.
The U.S. 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.
This law also allowed the U.S. 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.
But it ultimately voted against the Rome Statute that created the court in 1998 due to concerns with the court’s jurisdictional framework. The U.S. feared it could allow for the prosecution of Americans without U.S. consent.
Although the U.S. still signed the Rome Statute, President George W. Bush later effectively unsigned it, saying the U.S. would not ratify the document and had no legal obligations to it.
The U.S. remains a non-member state to the ICC today.
Once the ICC was created, the U.S. 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 to the ICC.
This law also allowed the U.S. 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.”
That same year, however, an amendment was passed to the law allowing exceptions for when the U.S. 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 U.S. was ready to assist international justice efforts as long as they targeted designated U.S “enemies” or other foreign nationals.
U.S. Support in African Cases
The U.S. soon adopted a pragmatic approach toward the court, supporting its activities depending on the circumstances and its interests.
In 2005, Washington allowed a United Nations Security Council referral to the ICC in relation to possible genocide and war crimes committed in Darfur, Sudan. The conflict was among the U.S.’ top foreign policy priorities in Africa at the time.
Later, the Obama administration formally adopted a “case-by-case” strategy to cooperate with the ICC when it aligned with U.S. interests.
Under this policy, the U.S. played an important role in the 2011 referral of alleged crimes against humanity and war crimes committed in Libya to the ICC. This was, again, in line with U.S. foreign policy interests.
U.S. diplomats also provided vital support in the arrest of Congolese warlord Bosco Ntaganda, who was later sentenced to 30 years in prison by the ICC for war crimes and crimes against humanity. And the U.S. assisted with the arrest of Dominic Ongwen of the Lord’s Resistance Army in Uganda, who was later sentenced to 25 years.
Another Falling Out Over Afghanistan
The relationship between the U.S. 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, which marked the first time the court probed possible crimes committed by U.S. forces.
In 2020, ICC judges authorized an investigation into U.S., Afghan, and Taliban forces. Soon after, the U.S. imposed sanctions on the ICC prosecutor, Fatou Bensouda, and another senior ICC official.
This week’s request for arrest warrants for Israeli leaders demonstrates yet another shift in the U.S. approach to the court.
After some delays, the investigation is continuing again, with a focus solely on crimes allegedly committed by the Taliban and Islamic State Khorasan Province. Other aspects of the investigation have been “deprioritized,” an implicit reference to the U.S. and its allies.
Soon after taking office, the Biden administration lifted the sanctions against the ICC officials, returning to a seemingly more collaborative period in U.S.-ICC relations.
These relations became closer following the Russian invasion of Ukraine, with the adoption of new laws that broadened the possibilities of U.S. cooperation with the court. The goals of the U.S. 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 U.S. approach to the court. It continues the pattern of the U.S. supporting the court when it suits it, prioritising its own foreign policy goals over wider international criminal justice efforts.
Call for the ICC to Investigate Ursula von der
Leyen for Complicity in War Crimes and
Genocide
Call to the International Criminal Court to investigate on Ursula von der Leyen for complicity in war crimes and genocide committed by Israel in the Occupied Palestinian Territories and in Gaza
27 May 2024, Geneva. On May 22, 2024, the Geneva International Peace Research Institute (GIPRI), the Collectif de Juristes pour le Respect des Engagements Internationaux de la France (CJRF) and a group of international concerned citizens, submitted a legal brief to the Prosecutor of the International Criminal Court (ICC) Karim Khan requesting the opening of an investigation against Ursula von der Leyen for complicity in war crimes and genocide against Palestinian civilians in the Occupied Palestinian Territories, including the Gaza Strip.
This legal brief, endorsed by various human rights groups and prominent academics and experts in international criminal law, calls the Prosecutor to initiate investigations on the basis of the information provided against Mrs. Ursula von der Leyen. The latter has been repeatedly informed of violations of international humanitarian law committed in the Occupied Palestinian Territories, particularly in the Gaza Strip, through reports from international organizations and foreign governments. This is evidenced by a letter sent to her on February 14, 2024, by the President of the Spanish government, Pedro Sánchez, and the then Irish Prime Minister, Leo Varadkar. 1
Mrs Ursula von der Leyen is responsible for aiding and abetting the commission of crimes and violations of international humanitarian law, within the meaning of Article 25(3)(c) of the Rome Statute of the International Criminal Court. Mrs von der Leyen enjoys no functional immunity before the International Criminal Court by virtue of Article 27 of the Rome Statute.
The President of the European Commission is complicit in violations of Articles 6, 7 and 8 of the Rome Statute by her positive actions (military, political, diplomatic support to Israel) and by her failure to take timely action on behalf of the European Commission to help prevent genocide as required by the 1948 Genocide Convention. Mrs. Ursula von der Leyen cannot deny awareness of the plausibility of these crimes, especially following the International Court of Justice’s provisional measures order of 26 January 2024 in the pending ICJ case South Africa v. Israel. More importantly, Mrs. Von der Leyen has failed to take appropriate action to prevent such crimes, whereas the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Statute of the International Criminal Court make prevention an erga omnes obligation.
For any further information, please contact:
Gilles-Emmanuel Jacquet,
Vice-President of the Geneva International Peace Research Institute (GIPRI), Geneva, Switzerland.
Contact : ge.jacquet@gipri.ch ; +41 78 895 24 40
Collectif de Juristes pour le Respect des Engagements Internationaux de la France (CJRF), Paris, France.
Contact : comite.cjrf@gmail.com
1 Leo Varadkar and Pedro Sánchez, Letter to the President of the Commission of the European Union Mrs. Ursula von der Leyen, Oifig an Taoisigh (Office of the Taoiseach) and Gobierno de España – Presidencia del Gobierno, 14/02/2024: https://www.lamoncloa.gob.es/presidente/actividades/Documents/2024/Letter-to-Commission-President-Ursula-Von-der-Leyen.pdf
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