Following the election of a new prosecutor of the International Criminal Court (ICC), the international community is questioning the US sanction’s validity against the ICC. In fact, Mr. Karim Khan from the United Kingdom was elected on February 12, 2021, as the next ICC Prosecutor, and he will take office, replacing Prosecutor Fatou Bensouda of Ghana on June 16, 2021.

The United States sanctioned the ICC officials and its prosecutor on September 2, 2020. This sanction was based on the fact that the ICC continues to target Americans and investigate or indict US military personnel without the United States’ consent. 

The unilateral sanction was a crucial part of Trump’s administration’s foreign policy. Accordingly, the previous administration interpreted international law in a not accurate manner in the multilateral world. The international community, including a vast majority of state parties to the Rome Statute of 1998, expressed their opposition to Trump’s sanction. 

Under President Biden’s administration, the United States’ relationship with the ICC is likely to differ from the previous administration. The new administration is generally in favor of the development of international criminal justice and the ICC’s role in this regard. This measure will help the UN and international institutions enforce and implement international law in a collective approach. 

In this context, the Biden administration could likely review the US sanctions against International Criminal Court officials imposed by Trump’s administration. 

If we consider the ICC a judicial mechanism of international justice to fight impunity for the most serious crimes under international law, what is the international community’s role? Moreover, what is the place and role of the United States in the development of international justice in the multilateral world? 

International criminal justice’s future depends on international cooperation, especially between major states. However, there are certainly some questions and issues to be considered while lifting the sanction:

First of all, the United States is not a member state of the ICC. However, it has a significant influence on the UN’s Security Council for referring ad hoc cases to the ICC. For this reason, its collaboration is essential to the development of international justice under the ICC. 

Secondly, whether the Biden administration possesses a political will and purpose for lifting the sanction against the ICC, the relationship between the ICC and the Biden administration has some potential tension, especially regarding the US army’s investigation in Afghanistan. We know that the ICC investigated alleged war crimes committed in the Afghanistan war and the Israeli-Palestinian conflict. In this context, lifting the sanction on the ICC will support or approve these investigations? 

Thirdly, while Biden’s administration is favorable to the international community for developing international justice, it is also understandable that the US disagrees with the ICC investigations regarding Afghanistan and Israel/Palestine situations.

Finally, the sanction against the ICC is harmful to international justice. Both member states and non-member states should unite in affirming the ICC’s essential role to develop justice in the world. 

Dr. Abbas Poorhashemi is an expert in international law. He is the President of the Canadian Institute for International Law Expertise (CIFILE). His teaching and research interests are in the areas of Public International Law, International Criminal Law and International Environmental Law. He has published many books and articles in each of these areas. He is also the Editor-in-Chief of the CIFILE Journal of International Law (CJIL), Canada.

Suggested citation: Dr. Abbas Poorhashemi, Sanctions on International Criminal Court officials and Biden Administration: A Realistic Expectation, JURIST – Professional Commentary, February 19, 2020, https://www.jurist.org/commentary/2021/02/abbas-poorhashemi-icc-biden-usa/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.