The April 2nd reversal of Trump’s executive order has been widely welcomed by international civil society and allies - including the EU, the UN Secretary General, and states such as France, Germany and the UK - but this move should be the first of several steps to turn the page on the United States’ troubled relationship with the Court. While the US regrettably maintains its opposition to the ICC’s jurisdiction over personnel of non-States Parties, our organisations urge the Biden administration to constructively engage with the ICC.
“The reversal of the sanctions, coupled with the election of a new Prosecutor and judges, all provide a welcome opportunity for the US to re-establish its relationship with the ICC.”
We remind the Biden administration that justice for victims of core international crimes should not be politicised. The ICC is a court of last resort, and if the US desires to resist the investigation into the situation of Afghanistan, they should do so in court, on the basis of its merits—instead of through arm-twisting tactics that promote US exceptionalism. The United States has had twenty years to address the harms caused by its global torture program, but impunity for the crimes suffered by detainees in Afghanistan and CIA blacksites remains unaddressed, the prison-camp at Guantanamo is still open, and the US continues to hold men who have been subjected to torture without charge.
“The Biden administration must take immediate steps towards ending indefinite detention and finally closing the Guantanamo prison. Likewise, the US should not forget its commitment to justice, and either hold accountable the people responsible for running the torture program, or let the ICC do its job.”
Katherine Gallagher represents two CIA torture survivors and Guantánamo prisoners held for more than 15 years without charge, Guled Hassan Duran and Sharqawi Al Hajj, before the ICC.
The Court is investigating core international crimes in other situations, most of which are backed by the US as part of their overarching support for international justice and human rights. In the months ahead, we press the US to allow the Prosecutor to continue its investigations without further interference—even when it may affect US allies—resume cooperation with the ICC, and move towards affirmative support for the work of the Court. This will send an unequivocal signal to other states and the World that no one is above the law.
“The independence of the Office of the Prosecutor is not only a key principle embedded in the Rome Statute, but also a crucial feature for the Court to be able to fulfil its mandate of establishing the truth and delivering justice to the victims. In the eyes of the law, there are no exceptions for the US, nor for other powerful actors”
FIDH and the undersigned organisations will continue monitoring the steps that the US takes in its engagement with the ICC.
Background
On Friday, 2 April, US President Joe Biden rescinded Executive Order 13928, which imposed economic sanctions and civil and criminal penalties for those who support ICC investigations and prosecutions. The order, enacted by the Trump administration in June 2020, had designated two international civil servants from the ICC, Fatou Bensouda and Phakiso Mochochoko. This action was challenged in a federal court in the Southern District of New York by Open Society Justice Initiative and four law professors, arguing that the executive order violated the plaintiffs’ constitutional rights and prevented them from carrying out work in support of international justice. The judge found that the order likely violates the First Amendment, and issued a preliminary injunction. A second lawsuit was filed earlier this year in a federal court in the Northern District of California by four plaintiffs represented by the American Civil Liberties Union.