The realpolitik of what nation states want from the International Criminal Court (ICC) usually boils down to “impunity for our friends; additional scrutiny for our enemies”. When it comes to the United States it’s the same – only more so.
The US presidential election, and its possible implications for the ICC, bring to mind the fraught relationship between the court and president Donald Trump during his 2017-2021 term, when ICC judges opened an investigation into alleged war crimes in Afghanistan carried out by all sides post 9/11, including the US.
Rather than challenging the logic or legality of the judges’ decision, senior members of the administration – including secretary of state, Mike Pompeo, and attorney general, William Barr – said they were launching a counter-investigation into the ICC for alleged corruption.
“The US government has reason to doubt the honesty of the ICC,” Barr, a career lawyer, told an appropriately stunned audience.
The court, he claimed, was “little more than a political tool employed by unaccountable international elites” – he did not mention the 124 countries which had signed the Rome Statute that set up the ICC, and, quite separately, its institutional links to the UN Security Council.
The court and its key decision-makers would be held accountable, Barr warned, for “exceeding its mandate and violating the sovereignty of the United States”.
Former CIA director Pompeo described the ICC – regarded as a cornerstone of post-second World War rules-based international order – as “a kangaroo court”, and warned US allies, particularly Nato countries, they could be next in its “crosshairs”.
How the ICC handled that Afghanistan investigation had implications for US allies in the Middle East, including Israel.
This is why Israeli prime minister Binyamin Netanyahu welcomed the decision by the Trump White House at the time to follow up with travel sanctions against key ICC staff, including prosecutor Fatou Bensouda – describing the court as “politicised and obsessed with carrying out a witch-hunt against Israel and the United States”.
Netanyahu – for whom an arrest warrant for war crimes was sought by Bensouda’s successor Karim Khan last May in connection with events in Gaza in the aftermath of October 7th – would most likely say the same thing today.
As Trump and Kamala Harris move into the final stages of a desperate battle for the Oval Office, Trump would undoubtedly agree.
Indeed, Republicans in Congress, including the influential Lindsey Graham, who chaired the Senate Committee on the Judiciary from 2019 to 2021, already enthusiastically insist they want to revisit sanctions against the ICC if Trump wins on November 5th.
Joe Biden reversed the Trump sanctions against the ICC in the first months of his presidency. But that did not signal any more consistency of approach towards the court in The Hague – much less a meeting of minds.
For example, he opted last year to assist the court in its investigation into alleged Russian atrocities in Ukraine by sharing US evidence and intelligence – but he remains implacably opposed to arrest warrants against Netanyahu and his defence minister Yoav Gallant, maintaining that even the request to judges from the prosecutor suggests a false moral equivalence between Israel and Hamas.
It’s what’s known in global diplomacy as “selective co-operation”, always comfortably the prerogative of power.
In that sense, the only “known unknown” as far as the ICC is concerned is Harris, who has repeatedly emphasised in public her broad and unwavering commitment to the rule of international law.
Even so, it is inconceivable that Harris would steer the US towards membership of the ICC, mainly due to the widespread view in America that membership would be incompatible with the US constitution.
Why? Firstly, because the constitution allows for only one supreme court, the US supreme court; and secondly because it would allow the trial of US citizens for crimes that would otherwise be entirely within the judicial power of the US.
“It is very unlikely that as president she would accept ICC jurisdiction over Americans, discarding the playbook that Republican and Democratic presidents have used for more than 20 years,” acknowledges Kelebogile Zvobgo, a foreign policy fellow at US think tank Brookings.
“But Harris could conceivably accept ICC jurisdiction over Israel, depending on whether or not her own party supported it.”
Democrats have frequently been split over whether to support the ICC, over sanctions for instance – and that level of support also depends, to an extent, on how the conflict in Gaza progresses.
Last March a bipartisan group of senators and house representatives passed an appropriations Bill stipulating a hold on aid to Palestine if the Palestinian Authority co-operates with the ICC’s investigation as it relates to Israel.
President Biden signed that Bill into law despite criticism that attempting to impede an international court’s investigation using aid seems contrary to the rule of law. Would Harris veto a similar Bill in the future or let it go? Might she regard it as too politically costly?
Presidents Biden and Trump may be somewhat predictable. But Harris’s commitments, like the contender herself, remain untested.
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