A Hard Case for Multilateral Reengagement
How would a Biden administration approach the International Criminal Court?
Over at Just Security, Oona Hathaway has written a very helpful analysis of the work that a Biden administration would face in revitalizing the multilateral architecture. She canvasses what she sees as the wreckage of the Trump administration, both in terms of formal organizations, multilateral treaties, and certain important but nonbinding international agreements (including the Joint Comprehensive Plan of Action to address Iran’s nuclear program).
A number of the Trump administration moves in the multilateral arena will be relatively easy to reverse. For example, the United States can reengage with and seek a seat on the UN Human Rights Council without much trouble. U.S. policy toward the Human Rights Council now oscillates fairly predictably between Republican and Democratic administrations. A Biden administration could also cancel the Trump administration decision to withdraw from the World Health Organization (which has not yet taken effect, in any case). U.S. concerns about the World Trade Organization’s dispute resolution system will be trickier to resolve (and those concerns predate the Trump administration), but it seems likely that a more pragmatic U.S. approach could yield a solution.
But there are some areas where reversing the Trump administration’s policies will be more challenging. One of these is the administration’s tough-as-nails policy toward the International Criminal Court (ICC). Hathaway does not address the ICC in detail, other than to note John Bolton’s vitriolic attacks on the court. U.S. policy toward the court features much more than tough rhetoric, however, it now includes sanctions directed at several key court officials, including the prosecutor herself.
The question of how to recalibrate policy toward the ICC is particularly difficult because there is almost very little political support in the U.S. Senate for actually joining the court and further exposing U.S. nationals to its jurisdiction. Indeed, there appears to be broad bipartisan concern about the course that the ICC has taken in Afghanistan and Palestine, in particular. The ICC has an active investigation underway of the situation in Afghanistan that includes scrutiny of U.S. conduct there as well as at several “black sites” in eastern Europe. Barring judicial intervention, the prosecutor is also moving toward a full investigation of the situation in Palestine that would include scrutiny of Israel’s settlement policies (and legal exposure for senior Israeli officials).
So where does that leave a Biden administration? The U.S. imposition of sanctions on ICC personnel produced the expected outrage, and it seems certain that a President Biden would revoke those measures. But what is the alternative? I somewhat clumsily engaged this question via Twitter recently. In essence, I asked readers to put themselves in the shoes of a U.S. official who believes that ICC jurisdiction over U.S. personnel is illegitimate and a threat to U.S. interests and to consider what steps the United States might take to oppose ICC action. Unsurprisingly, most readers rejected the basis of my hypothetical by insisting that there is no legitimate U.S. argument against ICC jurisdiction.
Those who accepted the premise floated a couple of different ideas. These ranged from ignoring the court (unless and until there are more concrete moves against U.S. personnel) to engaging diplomatically with U.S. allies that are ICC members.
The track record of the Obama administration, which quietly tried to head off a court investigation of U.S. personnel, suggests that a return to a more subtle approach is likely. And given the massive obstacles that the ICC faces in its Afghanistan investigation, a wait-and-see approach has real advantages. My concern is that a Biden administration may have to deal in short order with an ICC investigation in Palestine, which will produce a new round of intense Congressional scrutiny. Much as a new U.S. team might like to shift ICC policy back to one of quiet engagement, it’s not clear that events will cooperate.