Criticism builds over Biden’s failure to lift Trump sanctions on ICC prosecutors

The Biden administration is facing growing criticism for failing to lift US sanctions imposed last year on war crimes prosecutors at the international criminal court, at the same time as Israel is lobbying to keep the punitive measures in place.

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The sanctions, targeting officials in the ICC prosecutors and their families were imposed by the Trump administration in September in retaliation for launching investigations into the Afghan and the Israeli-Palestinian conflicts.

Days after Joe Biden was inaugurated, the state department said that, though the new administration did not agree with the decision to launch those investigations, “the sanctions will be thoroughly reviewed as we determine our next steps”.

Over a month later, there has been no move to lift the sanctions, and a state department spokesperson said this week they had no further comment. The failure to take action has provoked unease among US allies in Europe and elsewhere, who are staunch supporters of the ICC.

According to Axios reporting confirmed by the Guardian, Israel’s prime minister, Benjamin Netanyahu, lobbied Biden on 17 February, in their first phone call since the new president was inaugurated, to keep the sanctions in place. An official familiar with the conversation confirmed the report.

In December, the ICC prosecutor declared there were grounds to open an investigation in the West Bank and Gaza, and a panel of judges earlier this month agreed that the prosecutor had jurisdiction.

Like the US, Israel is not a signatory to the Rome treaty establishing the ICC, but Afghanistan and the Palestinian Authority are.

The Israeli embassy in Washington did not respond to a request for comment.

The Trump administration did not just sanction ICC officials involved in the investigation of alleged war crimes by the US and its allies, it also imposed visa restrictions on the families of those officials. It also claimed it would launch a counter-investigation into the ICC for alleged corruption, though it is unclear whether such an investigation was ever launched.

The justice department did not respond to an inquiry on the status of the investigation.

Legal sources said the continuing threat of sanctions has had the effect of seriously hindering investigations into atrocities by all sides in Afghanistan, the West Bank and Gaza, because lawyers and institutions have been reticent in cooperating with the ICC out of fear of bringing US sanctions on themselves.

Earlier this month, more than 70 human rights organisations, faith-based groups and academic institutions made an appeal for the lifting of sanctions they described as “an unprecedented attack on the court’s mandate to deliver justice and the rule of law globally, an abuse of the US government’s financial powers, and a betrayal of the US legacy in establishing institutions of international justice”.

Diplomats and experts predicted that the Biden administration would eventually lift the sanctions, but was seeking a way to do so without seeming to endorse the ICC investigations in Afghanistan and the Palestinian territories. The sanctions, one diplomat said, had been caught up in a broader review of how the US will engage with the court in general.

“The US relationship with the ICC is in a much more complicated place than it was when the Obama administration took over,” said David Bosco, author of a book on the ICC, called Rough Justice.

“The ICC now has an investigation under way in Afghanistan that includes scrutiny of US personnel and of course the judges just made clear that the prosecutor can investigate in Palestine.”

Bosco added: “In this environment, figuring out how the US should approach the court is really tricky, and I think the administration has decided they need to assess all approaches before pulling off the sanctions.”