The 2020 U.S. presidential election was closely followed within the international criminal justice community and may prove to be momentous. On the one hand, the re-election of Donald Trump would have meant the continuation of the United States’ unprecedented use of sanction powers on senior International Criminal Court (ICC) officials (as well as visa bans on even more staff and their families) in a bid to punish and deter the Office of the Prosecutor (OTP) from pursuing investigations in Afghanistan and Palestine that might implicate U.S. interests. Although the ICC has remained resolute in the face of such hostility, the sanctions have impacted its operations, not to mention the lives of those directly affected.

On the other hand, the election of Joe Biden offers, at the very least, the possibility of a much-changed relationship between the U.S. and ICC. As a long-serving, influential member of the Foreign Relations Committee, then-Senator Biden was a stalwart and vocal supporter of international criminal justice, including various United Nations tribunals established with strong U.S. support during his senatorial tenure. The Obama-Biden administration oversaw the most positive stages of U.S.-ICC relations with American support of the U.N. Security Council’s referral of Libya, the arrest and transfer of two ICC fugitives, and the expansion of the successful Rewards for Justice program to include ICC fugitives. Considering his record and overall commitment to multilateralist solutions to global problems like atrocity crimes, Biden’s election was an intense relief for many in the field.

A Rule of Law Approach to the ICC that Repudiates Past Practices

Many expect U.S. relations with the ICC under President Biden to look much like the Obama administration’s “positive engagement” policy of evaluating ICC cases on an ad hoc basis and collaborating where interests aligned, with the exceptions of the Afghanistan and possible Palestine investigations. However, putting substance on cases aside for now, the new administration needs to rethink its overall approach to the ICC too.

In constructing its approach, the administration should not forget that returning the rule of law to the White House was a hallmark of the victorious Biden-Harris ticket. Its ICC policy should reflect that same message. Specifically, the first pillar of that policy should be an overarching policy of support for the ICC and its mandate to confront atrocities with the rule of law. The second pillar should be a commitment to approach and articulate disagreements with the ICC in strict accordance with the rule of law (such as by making use of Article 18 of the Rome Statute, which provides avenues for a State to challenge or appeal decisions of the OTP and to communicate on complementarity) not in direct contravention of it. An explicit rule of law approach will put the incoming administration on firmer foundation to support the Court holistically and in situations it finds appropriate, but also allow it to raise objections without unduly damaging the Court. In other words, to oppose without undermining.

This latter point is worth emphasizing. As advocated by former U.S. Ambassadors-at-large for Global Criminal Justice from both Republican and Democratic administrations as well as former American chief tribunal prosecutors, the United States should articulate their opposition, when necessary, primarily in court filings and court appearances rather than press conferences, YouTube broadcasts, and opinion pieces. Overreliance on the latter supports contentions that American administrations only pay lip service to the rule of law.

A rule of law approach towards the ICC also necessitates a repudiation of the previous administration’s policy. Sanctioning lawyers, judges, and courts simply for doing their jobs is, by definition, antithetical to the rule of law. Imposing measures on their families is even more reprehensible. Regardless of how much some in a Biden Pentagon, CIA, or elsewhere may want to reserve all options, the U.S. cannot stand for the rule of law while peddling in practices that destabilize it.

Moreover, U.S. domestic law and long-standing foreign policy deplore such punitive tactics. Domestically, it is a crime in the United States to intimidate or exact revenge on lawyers, prosecutors, and/or judges. Internationally, the U.S. gives millions in grants each year to help human rights defenders (including lawyers and judges) around the globe who face retaliation for doing their jobs, retaliation which often comes in the form of governments using the coercive power of the state (such as financial measures and vexatious charges) to force lawyers and judges to relent.

Rethinking the damaging policies of the previous administration toward the ICC will yield foreign policy credibility, too. The ICC is not an obscure, little-supported institution. 123 countries have ratified the Rome Statute, including 28 of the US’s 29 NATO partners and most of its principal non-NATO allies, including Japan, Brazil, Afghanistan, South Korea, and Australia. So, taking a principled approach will garner the Biden White House much-needed legitimacy after almost all U.S. allies resoundingly rejected Trump’s ICC policy. Then-Senator Biden made a similar argument when the U.S. Senate was considering anti-ICC legislation in 2002, “I do not want to harm U.S. interest overseas. Many of our closest allies in Europe are strong supporters of this Court. This legislation will further complicate our relationship with those friends. Moreover, it takes aim at allies outside of Europe with punitive measures.”

To be clear, lifting the sanction designations and rescinding the executive order are the bare minimum. Reversing the designations yet leaving the executive order in place that authorizes the use of sanctions, as some in Washington predict, is not a reversal but rather an approval of the underlying premise of Trump’s policy. It also puts the new administration in the unenviable position of agreeing that an ICC investigation in Afghanistan is a “national emergency” while not applying the same designation to a global pandemic that has caused severe economic uncertainty – or having to defend the sanctions against one lawsuit thus far successful in court and another one focused on challenging the executive order on First Amendment grounds. Anything less than repudiation is political equivocation at the expense of the rule of law.

Unavoidable Truths of the ICC’s Investigation in Afghanistan

The harder question – and the one overshadowing any discussion of the U.S. relationship to the Court – is what policy should replace the disastrously combative approach of the Trump administration. Significant attention will be placed on how the Biden administration answers the question, “what to do with the ICC and Afghanistan?” In determining its answer, policymakers must come to terms with two unavoidable truths.

First, there is no conceivable U.S. policy position that allows the relevant allegations against American personnel to be swept aside without significant cost to both the U.S. and ICC. No matter how brilliant Foggy Bottom, the Pentagon, or the White House may be in proposing creative solutions, the alleged crimes have already been acknowledged and laid bare to the world. President Obama admitted, with misplaced folksiness, that “we tortured some folks” and the U.S. Senate Select Committee on Intelligence report on the CIA’s Detention and Interrogation Program added excruciating details to Obama’s admission, with tens of thousands of pages of investigative findings. There are real, living victims who suffered at the hands of American intelligence officials allegedly carrying out a policy of torture and mistreatment that was authored by other Americans thousands of miles away. Even if Biden plans to follow Trump’s lead and ignore realities, there are tangible costs to the United States’ credibility at home, in Afghanistan, and globally if it continues to pursue policies that foster impunity.

It should also be remembered that, although there are significant cases involving U.S. persons in Afghanistan, the ICC’s Afghanistan investigation is mainly about crimes by Afghans against Afghans in Afghanistan. Alleged atrocity crimes by the Taliban, Islamic State, and other militant groups have victimized the Afghan population to a far greater degree than any allegations against Americans. A policy that seeks to avoid or disrupt the investigation of alleged American wrongdoing will invariably undermine the entire ICC investigation by substantiating the narrative that international accountability is only applied against the weak. After years broadcasting that part of its purpose in Afghanistan was to combat Taliban criminality, it would be disingenuous and damaging then for the U.S. to frustrate or fail to support the ICC. It would also be foolish policy. Criminal accountability can help undercut the appeal of these groups by exposing, in a transparent process, professed defenders of the faith as nothing more than mass criminals.

The second unavoidable truth is that the ICC will not back down from its investigations – because it simply cannot. Putting aside the legal and moral justifications for this investigation, to bow to U.S. pressure in whatever form would do lasting and widespread damage to the ICC. Its ability to carry out its mandate anywhere in the world would be compromised. The ICC’s very existence and institutional well-being depends on its standing firm against U.S. pressure. Similarly, the 123 ICC States Parties, while not a monolith, will also realize that the legitimacy of the Court they have long backed necessitates solidarity.

Of course, the United States could take the position that such a crisis of legitimacy is “not our problem.” Yet a wiser analysis is that U.S. interests are best served by a successful ICC, not a lame one. A well-functioning ICC promotes core American values and interests in far greater ways than it jeopardizes them. To ignore this overlay in interests is policy malpractice in the short and long terms.

A policy of ignoring or dismissing the ICC has other undesirable outcomes. Were the OTP to issue an arrest warrant or summons against a U.S. person, it would likely focus on those most responsible for designing and authorizing the use of torture —including the lawyers who provided misleading legal cover – rather than those who relied on such guidance and authority. In such a scenario, an ICC arrest warrant against a former senior American official that is legally binding in all 123 States Parties would be a diplomatic disaster, causing an impasse with many allies, all at once, that could take years to resolve. The U.S. would be wise to avoid such a stalemate by fundamentally altering the trajectory of current U.S.-ICC relations vis-à-vis the Afghanistan investigation.

The Best Way Forward Requires Confronting Another Unavoidable Truth

So what can the United States do to uphold the rule of law, avoid damaging the Court, and prevent diplomatic embarrassments? The only policy choice that benefits both the United States and the ICC – and that also has the most predictable outcome in the shortest amount of time – is for the United States to undertake genuine investigations of the alleged crimes committed by American persons in Afghanistan and related jurisdictions and, where warranted, prosecute.

This statement is not based primarily on legal or moral grounds, although those certainly reinforce the conclusion. Rather, it is an inescapable reality that no other policy position works better in allowing both the United States and the ICC to save proverbial face. The former retains sole jurisdiction over prosecutions and the latter fulfills its mandate while avoiding a continued, likely costly confrontation with the United States. Any policy of hostility, denial, or crafty legal argumentation, in contrast, would damage the United States’ credibility and reputation as well as sacrificing substantive American policy goals. Will anyone listen when an American administration pushes for the importance of justice in conflict or post-conflict situations if the United States does not take its own advice? Will potential foreign investors in a country ravaged by criminality believe the United States can help foster the much-needed rule of law while making excuses for similar American violations of law?

To be sure, a policy that promotes domestic accountability will not be easy. Pursuing complementarity will take significant political courage in the face of many powerful detractors and will require the United States to be transparent about its past transgressions.

Yet there are clear policy benefits in doing so. At a time when its international reputation on such matters is at an all-time low, a policy of complementarity will allow the United States to burnish its image on the rule of law and human rights while keeping its sovereignty intact – given that it will be the United States, not the ICC, investigating and prosecuting any cases involving Americans.

Additionally, the United States has much to gain from a strong international legal order. As former U.S. Army General Wesley Clark forcefully argued,

[t]he United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law. [Hostility towards the ICC] is also unnecessary, because U.S. domestic institutions give America the ability to acknowledge its errors and defend its interests without taking actions that place it in the company of rogue states like Burundi and the Philippines, which have threatened United Nations investigators and international prosecutors.

It is an unnecessary self-inflicted wound for the United States to undercut the ICC when it has the capacity to strengthen it, and advance U.S. interests, instead. Yet, as Clark concludes, the U.S. government must acknowledge and address its errors to reap the benefits. General Clark further contends that

American men and women in uniform benefit from the expectation that all parties to a conflict will respect the Geneva Conventions and customary international law in how they conduct hostilities and treat prisoners. When the United States holds itself to these rules, allies that share the same values have greater confidence to work with the United States and defer to U.S. jurisdiction through status of forces agreements while U.S. service members are on their territory.

This point is likely part of the justification for the Australian government’s recent decision to commission a military investigation into allegations against its special forces in Afghanistan. The investigation found compelling evidence that war crimes were indeed committed. Far from leading to the collapse of its reputation and military effectiveness, the Australian government has been lauded for its critical introspection, from which its military will benefit when next deployed. Considering the strong alliance between Australia and the United States on military and security matters, the pressure is now on the United States to follow suit. Otherwise, further perceived attempts by the United States to evade scrutiny will, especially juxtaposed to Australia, do even greater harm to critical American interests.

Of course, some observers will point out the negatives of instituting complementarity proceedings, including the perception of ceding sovereignty to an international court to which the United States is not a party. While there is much to be said in response to such critiques, there is one clear yet often unacknowledged reality about opposition to the ICC generally or to its work specifically: most opposition comes from politicians, bureaucrats, lobbyists, and think tanks in Washington, not the American public writ large.

In fact, all available polling shows solid support among Americans for the ICC and its work, including investigations in Afghanistan of alleged American wrongdoing. Admittedly, Americans have a low level of knowledge about what the ICC is, but the polling shows that the more Americans know about the ICC, the more they support it, the values it represents, and U.S. support for international justice and accountability more broadly.

These poll findings are further substantiated by the outrage from a broad cross-section of Americans (including from existing and former members of the military) to Trump’s pardons of American servicemembers accused and/or convicted of war crimes. The American public recognizes the moral as well as practical costs of such high-profile impunity.

Again, this polling does not necessarily suggest that the United States should defer to the ICC to investigate and prosecute U.S. persons for actions in Afghanistan. Instead, it shows that Americans embrace, rather than reject, the premise of holding fellow Americans criminally accountable for atrocity crimes. The best way to advance American policy goals while honoring these expressed American values is to investigate and, again, where warranted by the facts, prosecute the crimes alleged in the ICC’s Afghanistan investigation.

Room to Be Bold

The Biden administration has many international issues and crises to juggle, and there should be no illusion that the ICC is near the top of the list. Nevertheless, the policy calculus on sanctions is straightforward: a full repudiation of Trump’s ICC policy fits within Biden’s rule of law message and provides a quick win with allies and stakeholders that does not ostracize many others.

The real test of his leadership will be deciding what to do with the Afghanistan investigation. The easy choice would be to fight, deny, or dance around the issue legally. The better choice for America is to push forward with real accountability at home.

Americans often take pride in our exceptional leadership in creating the Nuremberg and Tokyo tribunals and later in helping establish international tribunals for the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia, not to mention fostering accountability elsewhere. The United States was also integral to the drafting of the Rome Statute.

The next chapter of the American story in international criminal justice is being written right now and has taken a dramatic turn for the worse. The country faces the prospect of being labelled a gravedigger of international criminal justice – or, at the very least, betraying its long-standing role as a leader in international accountability. Let us hope that these options will motivate the Biden administration to find the political will to make bold, necessary decisions.

Image: Antony Blinken speaks during his confirmation hearing to be Secretary of State before the US Senate Foreign Relations Committee on January 19, 2021 (Alex Edelman-Pool/Getty Images)