A. “Clearing the Air” and Re-Casting the Tone

As noted above, the relationship of the United States with the ICC does not, and cannot, exist in a vacuum. In this connection, the Task Force believes it will be important for the new Administration to speak about the Court and its personnel in a manner that comports with its overall approach to multilateralism, international institutions, and working with friends and allies. This would entail maintaining a measured tone with which the United States speaks about the ICC and its personnel.

There will be many advantages of this general approach. In particular, U.S. attacks on the Court over the last four years—including President Trump’s Executive Order determining that the ICC’s work was an “unusual and extraordinary threat” to national security and Secretary Pompeo’s imposition of economic sanctions on the ICC Prosecutor and one of her staff—have come at significant cost to the U.S. reputation and to this country’s ability to be an effective voice on issues of importance to it (as described above). Numerous interlocutors with whom the Task Force spoke viewed the imposition of such sanctions—which are normally deployed against terrorists, weapons of mass destruction proliferators, narcotics traffickers, and perpetrators of heinous atrocities—as [an affront], and told us that the net effect was to prompt numerous states, including many that had been expressing concerns about the Court’s performance and the need for reform, to rally in defense of the Court. Statements that the Administration’s goal was to dissolve the Court unless the Rome Statute is amended to eliminate jurisdiction over nationals of states that are not Rome Statute parties,  allegations for which no evidence was provided that the Court had been corrupted, references to the ICC as a “kangaroo court,” and other consistently disdainful public rhetoric about the Court and its officials added to the feeling that the Court needed to be defended. Many of our interlocutors also believed that the Administration’s approach made it more difficult to pursue reforms that would have been in the interests of the United States.

The Task Force believes that the revocation of Executive Order 13928 on April 1, 2021, and the associated lifting of the sanctions and visa restrictions was an essential first step. In an accompanying announcement, Secretary Blinken characterized the measures being revoked as “inappropriate and ineffective” and the Task Force agrees with Secretary Blinken that U.S. concerns are better addressed through engagement with stakeholders in the ICC process. 

However, there are also a number of further steps that the United States should take in the immediate term to reposition itself as a reliable, constructive, and respectful ally and partner in multilateral engagements. Perhaps most importantly: the Administration should publicly and decisively disavow any impression that its goal is the dissolution of the Court. Neither the actual termination of the Court’s existence, nor the United States being seen as favoring such an outcome, is in the United States' interest. Too much of what the Court actually does serves U.S. interests, too many U.S. friends remain supportive of the Court and dedicated to its improvement, and—for all its flaws—there is no institution that could take its place. Attacks by the United States on the Court create a climate that make sympathy and receptivity for U.S. concerns less likely. In addition, a hostile U.S. posture provides cover for autocratic rulers to undermine the rule of law, attack domestic checks on their power, and resist international efforts to promote accountability.

The new Administration should also make clear that it will cease the vitriolic rhetoric that has marked the last four years. In particular, the Administration should avoid ad hominem allegations about corruption or bad faith, at least unless it is prepared to come forward with persuasive evidence to back up its claims if particular situations arise. In addition, the Administration should also clearly repudiate the approach to pardons and commutations of sentences granted to U.S. servicemembers and military contractors accused or convicted of war crimes, which numerous interlocutors believed “did great damage” to U.S. credibility on accountability and the willingness of other states or organs of the ICC to defer to U.S. investigations.  None of this requires the United States to abandon its concerns about the Court, but there is no reason that it cannot put forward its concerns in a reasoned manner that is respectful of the good faith views of the numerous friends and allies of the United States that are Court supporters. Similarly, while the United States should not proceed on the hope that the Rome Statute may be amended to eliminate jurisdiction over nationals of states that are not parties to the treaty, given the broad resistance to this within the ASP and the statutory barriers to any treaty amendment, there are other opportunities for the United States to seek to address a number of its concerns with the Court.