Why hasn’t Biden reversed Trump’s sanctions on the ICC?

These high-profile U-turns include rejoining the Paris agreement on climate change and ending the “Muslim ban.” But one of the most contentious Trump sanctions decisions remains firmly in place: the use of measures usually reserved for dictators and terrorists against the staff of the International Criminal Court (ICC).

More than a month after Biden’s inauguration, a number of human rights organizations have been demanding to know: What is the holdup? The stakes of the sanctions were thrown into stark relief on Wednesday, when the ICC announced a war crimes investigation in Israel and the Palestinian territories, prompting Israeli Prime Minister Benjamin Netanyahu to accuse the court of hypocrisy and antisemitism.

The court has been quiet since Biden entered office, hoping to give the new administration time to get itself in order. But in a statement to Today’s WorldView this week, prosecutor Fatou Bensouda publicly stated it was time for a “reset” with the United States and urged the Biden administration to lift all sanctions and engage constructively with the court.

“These measures are usually designed and implemented against gross human rights violators[,] not legal professionals and international civil servants engaged in the fight against impunity for atrocity crimes,” said Bensouda, a Gambian lawyer who saw bank accounts frozen and the assets of relatives temporarily blocked after the Trump administration announced sanctions last September.

In a statement in response to a request for comment, a State Department spokesperson said, “the Administration is thoroughly reviewing sanctions pursuant to Executive Order 13928 as we determine our next steps,” referring to the order signed by Trump on June 11 that later led to sanctions, but did not offer any more details on the review, which was first announced in late January.

Mark Kersten, founder of international law group the Wayamo Foundation, said the U.S. government’s stance was “absurd, because frankly, what is there to review?”

Even before Trump, the ICC had a complicated relationship with Washington. The ICC’s position as court of last resort when national courts are unable, or unwilling, to prosecute major crimes has made it a lightning rod for controversy. The United States never ratified the Rome Statute that led to the establishment of the court in The Hague in 2002, and has not accepted the court’s jurisdiction.

This distinction puts the United States at odds with many of its allies. Most countries in Europe, North America, Latin America and much of Africa are among the 123 backers of the court. But while both the George W. Bush and Obama administrations kept their distance, neither took as aggressive a stance as Trump’s administration. In 2018, then-national security adviser John Bolton, a long-running critic of the court, said that, “For all intents and purposes, the ICC is already dead to us.”

In 2019, the United States imposed a travel ban on ICC personnel. The following year, after the court moved to open an investigation into possible war crimes in Afghanistan — the first investigation it has opened that could involve U.S. troops — the Trump administration admonished the ICC, with Secretary of State Mike Pompeo calling it a “renegade, unlawful so-called court.”

A little more than three months later, Trump signed the executive order that authorized new sanctions against those connected to the court. The sanctions on Bensouda and another member of the ICC prosecution staff, Lesotho diplomat Phakiso Mochochoko, went into force in September. Many human rights groups and foreign governments condemned the move.

Agnès Callamard, the special U.N. rapporteur on extrajudicial, summary or arbitrary executions, tweeted that she was “speechless” after Trump signed the order. “Sanctions against the Prosecutor of the ICC??”

After Trump lost last year’s presidential election, it was generally expected that Biden would reverse the actions against the ICC. “A lot of folks are following this,” said Adam Smith, a partner at law firm Gibson, Dunn & Crutcher who worked on sanctions at the U.S. Treasury during the Obama administration. Rescinding the sanctions on Bensouda and other ICC staff could be as simple as revoking the executive order that installed them, he explained.

Since Biden took office, his administration has committed to international human rights standards. In February, Secretary of State Antony Blinken announced that the United States would seek a seat on the United Nations Human Rights Council next year, reversing another Trump-era move against another divisive supranational body.

Without any full explanation from the U.S. government, it remains unclear why the sanctions on ICC officials remain in place.

Axios reported last month that Israel’s Netanyahu had asked Biden to keep the sanctions in place. After the court announced its investigation into Israel and the Palestinian territories, Netanyahu hit out at the court again, calling it “undiluted antisemitism and the height of hypocrisy”; Blinken tweeted a few hours later that the United States “firmly opposes” the ICC investigation.

The problems between the ICC and the United States go beyond Israel, however. Some critics, such as American national security lawyer John B. Bellinger III, have argued that both sides need to de-escalate, with the ICC taking a step back from actions that could implicate U.S. officials. But supporters of the court, including Kersten, argue that Biden is taking a similar hands-off approach to international justice that Obama took — what he described as “selective engagement and polite hypocrisy.”

“It’s a lot better than Trump, no doubt, but it also leaves a lot to be desired,” Kersten said.

In her statement, Bensouda noted that in the past, the United States had been a major part of the movement for international justice, going back to the Nuremberg trials, and said she hoped for a new era of cooperation with the United States. “We look to the new U.S. Administration for constructive engagement and recognition of our legitimate duties under the Rome Statute,” she said.

The court may have some reason to feel confident. Though she remains under sanctions, Bensouda will soon be leaving her position at the ICC. British lawyer Karim Khan will replace her as ICC prosecutor on June 16 — around the time that the Biden administration will have to review the executive order that imposed sanctions on Bensouda, according to Smith.

Khan is not under sanctions and so far, the court has refused to back down from either the Israel or Afghanistan investigations. As Bensouda put it, the “coercive measures against the ICC have failed to achieve stated policy objectives.” So why keep them in place?