In this episode, Dani Schulkin is joined by former State Department officials Sky Miller and Adam Keith about the promises and pitfalls of the act, and what this tension reveals about America’s ability to lead and enforce anti-corruption efforts worldwide. 

Show Note: 

• “Global Corruption, Local Hypocrisy: The Promises and Pitfalls of the U.S. Combating Global Corruption Act” by Schuyler Miller and Adam Keith (December 9, 2025)
•  When the Guardrails Erode Series by Dani Schulkin, Amy Markopolous, and Maya Nir

The post The Just Security Podcast: Can the U.S. Still Lead on Anti-Corruption? Understanding the Combating Global Corruption Act appeared first on Just Security.

U.S. Global Evaluations Expand to Anti-Corruption Efforts Abroad

Per legislative mandates, the U.S. State Department reports publicly and to Congress on how foreign governments meet international and U.S. standards on a range of issues, such as human rights, trafficking in persons, and investment climate. These assessments inform government decision-making, business investments, academic research, and civil society advocacy.

In August, the Trump administration released its first installment of the annual human rights reports, a State Department publication that has been produced for decades. The release was widely criticized for a lack of candor about certain allied countries (including El Salvador and Hungary), the omission of key issues (such as discrimination), and the unwillingness of senior leadership to promote the reports. That precedent now casts a long shadow over the forthcoming first-ever iteration of annual reports the State Department is required to produce under the recently enacted Combating Global Corruption Act.

The Act, passed in 2023, requires the State Department to report annually to Congress and the public on foreign government efforts to counter corruption, beginning this month. While the Act has not received much public attention, it has the potential to help promote progress and check backsliding on an issue that regularly harms American interests globally.  

Yet, as this Just Security series has shown, the United States is facing a moment when its credibility in countering corruption — and weighing in on the efforts of others — is under strain. In its foreign and domestic policies, the Trump administration has undermined or terminated a wide range of U.S. anti-corruption initiatives. This comes on top of a longer history of bipartisan concern about influence peddling and the extensive role of money in U.S. politics, among other issues. 

Beyond the general issue of U.S. credibility, two challenges warrant particular attention. First, the integrity of the reports could be tainted by political interference or inadequate department resourcing. Second, the Act’s potential will be undermined if the reports are not followed by corresponding policy actions like appropriate sanctions or training for U.S. officials. 

Nonetheless, Congress and civil society should embrace the Act as a framework and a tool among many for reviewing the state of anti-corruption efforts globally, critically evaluating the U.S. government’s own adherence to the Act’s standards, and supporting those who are calling for reform.

A Potentially Impactful Reporting Scheme

Prior to 2025, the United States had recently taken modest but meaningful steps to counter corruption at home and globally. It often did so with strong bipartisan support, based on the understanding that fighting corruption would pay dividends for national security, economic prosperity, and human rights. Recent high-profile initiatives included implementation of the Global Magnitsky Act and Corporate Transparency Act, ethics pledges by executive branch officials, and the creation and execution of the U.S. Strategy on Countering Corruption.

The Combating Global Corruption Act aimed at building on this progress. The bill was a top priority for then-Senator Ben Cardin, who secured the Biden administration’s support as one of his first acts when he became chairman of the Senate Foreign Relations Committee in September 2023. This was a fitting choice, since it was a federal indictment for bribery and other corrupt acts that drove Cardin’s predecessor out of that chairmanship. After receiving unanimous support in committee – including from then-Senator Marco Rubio – and the full Senate, Cardin’s legislation became law in December 2023.

The Act’s main feature is to require the State Department, by December 22 and for seven years thereafter, to assess and report to Congress and the public regarding foreign governments that are “sustaining or making good progress on anti-corruption efforts.” The State Department must also provide a classified report to Congress on foreign governments “making limited to no effort…and no meaningful progress on combating corruption.” These assessments are to be based on a list of standards and criteria rooted in historical U.S. anti-corruption approaches and international treaties that the United States has ratified. The standards focus on criminalization of corruption, enforcement of the law, and prevention efforts.

In an earlier draft form, the Act was modeled on the State Department’s annual country reports on trafficking in persons (TIP), which publicly rank all countries in three tiers based on the extent of each government’s efforts to eliminate trafficking. By many accounts, the public stigma of a negative TIP ranking or the threat of one have been impactful in spurring foreign governments into improving their record. These reports have also included a self-assessment of the U.S. government’s record.

As enacted, the Combating Global Corruption Act does not require a ranking of all countries, nor the publication of any critical assessments. Still, the Act provides an opportunity for the State Department to highlight which foreign governments are sustaining or making steps in accordance with the Act’s standards. If done well, this “good performance” list could reward strong anti-corruption efforts. This structure allows the U.S. government to at least indirectly highlight, by omission from the good performance list, which governments are not making or sustaining good progress. The Act also requires the State Department to provide Congress a classified list with more information on the “poor performance” governments.

The assessments underpinning both lists should inform U.S. policy formulation and action, and to that end, the Act mandates certain follow-up actions. First, the U.S. government must consider imposing targeted Global Magnitsky sanctions on individuals and entities in countries on the classified poor performance list and report any such action. Second, for each country on the poor performance list, the State Department must designate and train a U.S. Embassy point of contact responsible for promoting the implementation of a whole-of-U.S. government anti-corruption approach in that country. Finally, while the Act does not require a formal self-assessment of the U.S. record like the TIP report, it does call for “an annual update in a classified setting [to Congress]…on the United States Government’s efforts to fight against corruption.” It is unclear whether the Trump administration will provide any public update given that the statute only requires the update to be made to Congress.

In the Background: U.S. Actions on Anti-Corruption 

The impact of any U.S. praise or criticism on anti-corruption abroad will depend heavily on the U.S. government’s credibility on the issue. Some U.S. shortcomings on anti-corruption are not new, of course, as reflected by longstanding criticisms of the campaign finance system, the Supreme Court’s narrowing of the application of anti-bribery laws, or unheeded calls to ban the trading of individual stocks by legislators. This year, several Trump administration actions defy a number of the benchmarks that the Act outlines as indicators of foreign government efforts to address corruption. For example: 

• “Vigorously investigate, prosecute, convict, and sentence public officials who participate in or facilitate corruption” and “convict and sentence persons responsible for… acts [of corruption].” So far, President Trump has pardoned a large and growing number of corrupt politicians and business leaders, signaling tolerance for corruption rather than concern about it. The Administration has also dropped bribery charges against a sitting mayor that it concedes are well-founded and slashed its own capacity to bring such cases. It has significantly narrowed the scope of enforcement of the Foreign Corrupt Practices Act (FCPA). Furthermore, President Trump has publicly demanded the Justice Department indict his political foes, casting doubt on the legitimacy of the actions DOJ takes.  

• “Adopted measures to prevent corruption…” An international expert review recently expressed concern that the President and Vice President have long been exempt from certain legal provisions on conflict of interest and integrity, highlighting the need for these leaders to voluntarily address these concerns. Exacerbating this problem, President Trump in January revoked a Biden Administration ethics pledge requirement for all political appointees without instituting a replacement. The administration has largely fired the corps of inspectors general whom Congress has charged with preventing and combating waste, fraud, and abuse within executive branch agencies, despite congressional attempts to strengthen their independence. The Administration also withheld funding for the body that coordinates among and provides guidance for inspectors general, only relenting following engagement from Congress.

• “Take steps to implement financial transparency measures,” including “beneficial ownership transparency requirements.” The Treasury Department announced in March that it would not enforce a brand-new rule creating a registry that would identify the true, “beneficial” owners of shell companies in the United States. This reform is specifically required by the 2020 Corporate Transparency Act and had been called “the single-greatest anti-corruption step the U.S. had taken in decades,” given its potential to reveal a wide range of corrupt and illegal acts.

Beyond these concerns with domestic anti-corruption issues, the administration has dramatically reduced longstanding U.S. efforts to counter corruption globally, such as by decreasing communication about anti-corruption policy, cutting staff, and scaling back anti-corruption foreign assistance. In contrast to past administrations, including Trump’s first term, Trump’s recently-released National Security Strategy does not mention corruption once. Several additional domestic and foreign policy actions are detailed in Just Security’s Anti-Corruption Tracker.

Next Steps After the Act is Published

In advance of the first Combating Global Corruption Act reports due this month, members of Congress, civil society groups, and private sector stakeholders should consider four lines of effort for holding the administration accountable for implementing the Act and its standards effectively.

1) Scrutinize the reports, amplify conclusions that are credible, and highlight conclusions that are not. In reviewing the reports, observers should specifically examine: 

• Whether the determinations are insulated from political pressure: Look for indications that decisions are being shaped by personal alliances or domestic politics rather than objective criteria. This could be identified by signs of the U.S. government awarding unearned praise to friendly governments or omitting progress by political adversaries. Congress should also review the classified reports for any unmerited exclusion of political allies or inclusion of political foes.

• Whether the process is adequately staffed and resourced: Thin staffing or limited expertise can weaken the underlying analysis and erode the report’s credibility. The Department should share information with Congress about how it resourced the report-writing process. If it does not, Congress should require this information.

• Whether the evaluations reflect rigorous technical assessment: Determinations should be grounded in well-supported reviews by U.S. experts at embassies and in Washington. This means justifications should accurately outline how the governments do or do not adhere with the standards laid out in the law.

 2) Track the Act’s Implementation: Following the completion of the reports, the value of the State Department’s analysis and determinations will diminish if it does not effectively implement the Act’s requirements for considering sanctions and designating and training key U.S. embassy personnel. The Trump administration has been lifting sanctions on corrupt actors, rather than imposing them, making it hard to be optimistic on that count. 

Stakeholders should track any sanctions that appear linked to the reports and urge additional action where appropriate. Further, Congress should conduct oversight on whether the Department is properly deploying sanctions for countries on the classified poor performance list and how the Department is approaching training. Finally, the administration should use its discretion to publicize its views on governments that are not meeting the standards, wherever constructive, and more generally should use the reports to inform policy decisions.

3) Strengthen the Combating Global Corruption Act itself. For example, Congress could amend the Act to require the State Department to brief Congress in a public forum on its findings and efforts. The Act could also provide more specific guidance on the training required for points of contact at U.S. embassies. Some technical clarifications would be helpful, too, including specifying the reporting period to be covered and confirming that the good performance list should include governments maintaining a good status quo or making or sustaining progress.

Separately, several members of Congress proposed a version of the CGCA earlier this year that would institute a tiered review for all countries, as the Act was originally designed. If Congress considers this new bill, which would require all of the State Department’s rankings to be public, it should still allow the Department to submit supplemental information or analysis on a classified basis, as needed. It should also include an explicit requirement that the U.S. government assess itself on the Act’s standards, akin to the TIP report.

 4) Urge the Trump administration (and future administrations) to adhere to the standards in the Act and articulate how it is doing so. If it does not, civil society and Congress should use the Act’s framework to spotlight U.S. strengths and weaknesses. Leading senators and representatives should hold hearings asking U.S. officials why they have stopped practices that Congress rightly and unanimously urged on other countries through the Act. If committee chairs are not willing to convene hearings, other leading members can and should host shadow hearings aimed at illustrating the costs of U.S. backsliding and spotlighting those harmed by corruption. The hearings could include U.S. constituents whose elected representatives have been compromised by bribery or other corrupt acts; U.S. companies that have faced bribe demands when doing business abroad; and human rights defenders and other advocates from other countries who still want U.S. partnership to fight graft and impunity.

Rebuilding the U.S. government’s anti-corruption practices and making them more durable over the long term will require demand from political leaders and Americans across the country. The Combating Global Corruption Act presents an imperfect but useful opportunity for anti-corruption advocates to keep making the case for why such a fight, at home and abroad, is essential.

Author’s Note: Sky Miller previously served as a civil servant at the State Department, where he worked on early implementation of the Combating Global Corruption Act before being separated in a reduction in force under the Trump administration. 

The post Global Corruption, Local Hypocrisy: The Promises and Pitfalls of the U.S. Combating Global Corruption Act appeared first on Just Security.

Sanctions on the ICC would hurt U.S. relationships and interests, and the victims of war crimes around the world. The House bill, in particular, is a deeply misguided attempt to stop a war-crimes investigation by using U.S. sanctions against ICC prosecutors, human rights advocates, and democratic allies. But it could become law. The White House opposes the bill, but it has not clearly threatened a veto. Key senators have blocked the Senate foreign relations committee’s work until the bill gets a vote and have proposed attaching it to the must-pass annual defense authorization act.

The bill’s mandatory sanctions scheme is a fundamental mismatch between the purported “offense” and the response. It would require the same financial penalties for ICC investigators as other U.S. laws require for gross violators of human rights and proliferators of weapons of mass destruction. Key members of Congress and commentators have condemned the bill, with some calling it a mafia-like threat to judges, prosecutors, and their family members. But the bill’s full breadth and alarming particulars have been too little spelled out. 

If the bill were enacted, it would pit the United States against some of its closest allies by requiring it to sanction their nationals for their work investigating war crimes and other violations.  Second, it would make basic human rights advocacy sanctionable under U.S. law in circumstances ranging from Israel and Palestine to the Philippines and Libya. Third, by making it illegal for U.S. persons to transact with many ICC officials, the bill could shut down some of the ICC’s operations that the United States most supports, including in Ukraine. Finally, the bill would require offering this thuggish form of “protection” from ICC scrutiny not just to Israel but a long list of some of the United States’ most authoritarian partners.

The Senate should reject this bill, and the White House should encourage Israeli officials to pursue their objections to the ICC’s scrutiny through legal channels. The ICC officials whom the bill targets should carry on with their work.

Sweeping scope: sanctioning close allied nationals and human rights advocates

The House bill is sweeping. It would require the U.S. government to impose asset freezes and visa bans on foreign persons who conduct or in various ways assist any ICC investigation of U.S. persons or persons from certain allied countries, including Israel.  (The bill defines “foreign person” in a way that makes it unlikely that dual-national U.S. citizens would be sanctioned.)

Even if the U.S. government focused only on ICC scrutiny of Israeli conduct and ignored the broader mandate, implementing the bill would require putting a staggering number of allied-country nationals and human rights advocates on the U.S. global financial blacklist, and imposing visa bans on an expansive set of their family members too.  In particular:

• Many ICC staff meet the bill’s criteria for mandatory sanctions, having “engaged in or otherwise aided” the court’s investigation of Israeli nationals or “acted… for or on behalf of” someone who has. These include prosecutor Karim Khan (a British national) and other staff in the court’s prosecuting or administrative arms working on the Palestine investigation.
• The three ICC judges (from France, Romania, and Benin) who are considering Khan’s requests for arrest warrants and their staff might soon qualify, depending on their ruling.  
• Most of the legal experts whom Khan asked to review his requests are sanctionable for having “provided… services” to the investigation, including British-Lebanese lawyer Amal Clooney.
• Belgium’s recent contribution of €5 million to the ICC, which it initially said was specifically for the Palestine investigation, is presumably a sanctionable form of “financial, material, or technological support.”  
• The basic human rights work of documenting and sharing evidence of abuses would be directly sanctionable under the House bill, if that work were done by a non-U.S. NGO in support of the ICC’s Palestine investigation – or, as noted below, its investigation in the Philippines.  
• Even witnesses who testified to the prosecutor could be considered to have “aided” an effort to investigate Israeli or other allied-country nationals.
• For each person sanctioned, the bill further requires a U.S. visa ban on their “immediate family members.” This requirement is inappropriately copied from sanctions targeting foreign officials involved in corruption or gross human rights violations – and the House bill goes even further, covering not only spouses and children but parents and siblings too.

There are practical, bureaucratic limits on how many people the U.S. government can sanction in a day, of course, as well as opportunity costs of using that capacity to fulfill this mandate instead of others. This reality and the bill’s (extremely narrow) waiver provision might limit the damage it would do, though not in any reliable or consistent way.  The United States might not choose to prioritize sanctioning human rights NGOs, for example, but the Palestinian, Israeli, European, and Filipino advocates that have supported these investigations would have little assurance of that.  

Regardless of their nationality, no ICC staff or human rights defenders should be sanctioned for their legal work and advocacy. But the House bill is especially striking as a mandate to sanction dozens of nationals from close, democratic U.S. allies. Unlike U.S. sanctions on allied-country nationals involved in corruption, which have often been impactful, U.S. partners would rightly see these sanctions as targeting international civil servants and human rights advocates doing their legitimate jobs. The United States would be acting alone, demanding that British, Dutch, and other banks with exposure to the U.S. financial system make law-abiding citizens pariahs and cut them off from their own funds.

Even the Trump administration took seriously the diplomatic downsides of targeting individuals from close allies when it briefly sanctioned two ICC officials in 2020, albeit to racist effect.  It skipped over a senior Canadian national and others in the ICC prosecution’s then-chain of command to target two African officials, perhaps anticipating that any objections from their home states (the Gambia and Lesotho) could be shrugged off. For better and worse, the House bill does not provide such flexibility in the diplomatic fights it would require the U.S. government to pick.

Creating vast liability beyond those specifically sanctioned

The sweep of U.S. financial sanctions is amplified by the risk of follow-on enforcement action, in which the U.S. government can impose criminal and civil penalties on U.S. persons and others who interact with sanctioned people in ways that have even a fleeting connection to the United States. In this way, the House bill would attack even U.S. citizens and advocates and paralyze elements of the ICC’s work that enjoy overwhelming bipartisan support.  

Again, even assuming the U.S. government could ignore the bill’s broad mandate and sanction only the ICC prosecutor himself, much of the ICC’s basic operations – and much of civil society’s advocacy toward the court – consists of interactions that could be penalized as support to the prosecutor.  

The ICC has several U.S. citizen employees, including most prominently Brenda Hollis, the widely respected former U.S. Air Force judge advocate who stood behind Karim Khan at the May 20 announcement as one of his deputies on the Palestine file. Hollis and other Americans cannot be sanctioned under the bill, but working for a sanctioned Khan would expose them to enforcement penalties – even for work on the ICC’s Ukraine investigation, which Hollis leads, or others that the bill does not attack. Similarly, U.S. human rights NGOs or individual advocates could face enforcement penalties for supporting any of the sanctioned prosecutor’s investigations, from Ukraine to Darfur.  

More broadly, the ICC is a complex institution with 900 employees and field offices in seven countries from Ukraine to Uganda. Many of its vendors, insurers, and other business service providers are presumably companies that fall under U.S. jurisdiction or comply with the U.S. sanctions list as a precaution. It was difficult enough for the ICC to remain “in business” when only two of its staff were sanctioned in late 2020, by an administration that lost reelection just weeks later.  

If multiple ICC officials were sanctioned, based on a permanent law, companies would be far more reluctant to keep navigating the risks of doing business with the court. If it became impossible to clearly distinguish between a business transaction that benefitted sanctioned persons and one that did not, it could easily become impossible for the court to continue any of its investigations. 

Some legal defenses could be raised at the margins. When the Trump administration’s sanctions on the previous ICC prosecutor were in place, for example, one set of U.S. citizen advocates who had advised the ICC secured a preliminary injunction allowing their work to continue, having persuaded a judge that the threat of enforcement penalties infringed on their free speech rights. There is no guarantee, though, that other judges would rule in the same manner under a new sanctions program – and not all transactions with the court are expressive in nature.  

A long and arbitrary “do not investigate” list

The authors of the House bill did not limit their ambitions to pressuring the ICC out of its Palestine investigation, but rather sought to require this kind of sanctions onslaught in response to any ICC investigation of any “protected person.”  

The bill defines “protected person” to include any citizen or lawful resident of not just the United States and Israel, but nine other mostly authoritarian U.S. allies and partners that have not joined the ICC (Bahrain, Egypt, Kuwait, Morocco, Pakistan, Qatar, Thailand, and Turkey) or that joined but later withdrew (the Philippines). The bill states that the United States “must oppose any action by the ICC” targeting people from or living in this set of U.S. allies, but it leaves oddly unstated why this would be so.

One possible reason for demanding that these specific countries not be investigated: the U.S. government has previously objected to the ICC’s ability to investigate the nationals of ICC non-member states for their role in crimes committed on the territory of countries that have accepted the court’s jurisdiction.  

But Congress quite specifically demanded that the executive branch abandon this unfounded objection to the court’s territorial reach, so that the United States could support the ICC’s investigation of Russian war crimes in Ukraine. It began doing so last year. If forces from any of these allied countries commit war crimes on the territory of a country where the ICC has jurisdiction – say, Egypt’s armed forces in neighboring Libya – it would make no more sense to come to their defense by sanctioning the court than it would to do so for Russia.

Another possible reason for warning the ICC off of these “protected” states: the House thinks the court should presume that these governments will hold their own forces accountable, as U.S. legislators have said regarding Israel in demanding that the ICC defer to investigations that may be under way there. But the covered states include near-absolute monarchies like Bahrain and military dictatorships like Egypt that make scant pretense of holding their officials to account.  

Rather, the motivation and the logic behind the bill seem simply to be that of Benavides (“For my friends, everything; for my enemies, the law”), with the understanding that impunity should be formalized as a benefit the United States extends to some of its major non-NATO allies.

Bizarre results from expansive drafting

Because of its carelessly vast reach, this bill would produce particularly strange outcomes well beyond opposition to ICC scrutiny of Israel.  

Ismail Haniyeh, one of three Hamas leaders whom the ICC prosecutor wants to charge, has lived in Doha for years – and if he is a lawful resident of Qatar, this bill would make him a “protected person” and make it sanctionable to assist an ICC investigation of him. That would presumably surprise advocates and NGOs that shared documentation of the October 7 attacks with the ICC and made no exception for Haniyeh when asking it to hold Hamas leaders to account.

Khalifa Haftar is best known as the leader of a Libyan militia that has committed a variety of abuses, including executions of prisoners that have already led the ICC to charge one of his lieutenants (now deceased) with war crimes. Because Haftar also holds U.S. citizenship, though, the bill would make it sanctionable to conduct or support an ICC investigation of him.

The bill would also make it sanctionable to conduct or support the ICC’s ongoing investigation into extrajudicial drug-war killings in the Philippines, even though that country joined the court in 2011. The Duterte government’s withdrawal from the ICC in 2019 made the Philippines once more “an ally of the United States that has not consented to [ICC] jurisdiction or is not a state party to the Rome Statute,” such that ICC scrutiny of people in or from the Philippines would be sanctionable under the bill.

Some specific elements of the diplomatic self-harm and impunity promotion that the House bill would cause might be avoided by a narrower bill, but not all of them. Even a narrower bill could provide cover or endorsement for a hostile executive branch to misuse existing sanctions authorities to attack the ICC – and the correct number of people to face U.S. sanctions for the ICC’s Palestine investigation, or any other lawful effort to provide accountability for serious crimes, is zero.  

U.S. allies and partners, human rights advocates, and others who expect the United States to preserve any claim to being a supporter of justice and accountability should press Congress not to follow this course.

The post Sweeping ICC Sanctions Bill Would Harm Victims, U.S. Interests appeared first on Just Security.

The new appropriations for the ICC received little public attention when they were included in the government funding bill passed in late March, but they expanded the growing U.S. relationship with the court to include a vital form of support that was previously off-limits. This rapprochement grew out of a highly bipartisan enthusiasm for justice inspired by Russian war crimes in Ukraine, and it marked a well-advised chipping away at decades-old restrictions on U.S. support for the ICC.

Just a few pages later in the statute, though, Congress emphasized the enduring limits of that enthusiasm by renewing its longstanding ban cutting off certain U.S. assistance to the Palestinian Authority if the latter supports an ICC investigation. (See, for example, analysis in Just Security nearly a decade ago.) That ban was triggered by Palestinian support for an investigation that has been underway for years and seems likely soon to produce charges against Palestinian and Israeli nationals – and with them a burst of hostility toward the court itself from some corners of Congress.

The United States should prioritize accountability in the Israel-Palestine context as it has elsewhere. But even if it refuses to do so, it should not destroy an institution that is invaluable to victims, advocates, and governments around the world seeking justice for the worst crimes. The shameful threats that some are now making against the ICC are incompatible with U.S. interests in the rule of law, and with the kind of institutions that are often and increasingly necessary to protect those interests.

Ukraine Prompted a Rapprochement and Support for Justice

The ICC’s prosecutor opened an investigation in Ukraine in March 2022. Ukrainian domestic institutions are investigating the crimes occurring on their territory, but the survivors of Russian abuses, Ukrainian human rights defenders, the Ukrainian government, and dozens of other states have understandably felt that action by the ICC was also vital. The court followed the evidence where it led, bringing charges against top Russian officials for war crimes even as the Russian government threatened missile strikes on the ICC and issued tit-for-tat arrest warrants against court officials.

The ICC’s actions have powerfully reinforced the condemnations of Russia’s conduct and made clear that it will work to vindicate the rights of civilians in Ukraine. The U.S. government and Congress, with strong bipartisan support, welcomed this role for the ICC and set aside longtime legal and policy restrictions to better support it, including through the sharing of evidence with the ICC prosecutor and the loosening of bans on other forms of assistance.

This was not the first time the U.S. government has recognized its interests were incompatible with a policy of shunning the ICC. George W. Bush cast aside a hostile ICC policy to allow the UN Security Council to refer crimes in Darfur to the court in 2005. The Obama administration dropped an objection to the ICC’s ability to investigate without a state’s request when the court offered the only prospect for deterring renewed electoral violence in Kenya. This dynamic keeps playing out because impunity is not just galling to human dignity but also a threat to stability, and independent bodies like the ICC are often essential to addressing that threat.

To that end, congressional leaders recognized that funding was a key weakness for the ICC. Despite a recent budget increase, the court still lacks funds to investigate some situations where national institutions are not providing accountability for mass atrocities. The United States has funded other tribunals but never the ICC, until the appropriations act passed in March of this year made available $5 million for the Trust Fund for Victims (an ICC-linked body that supports survivors through reparations and assistance) and the court itself.

Israel-Palestine Investigation a Test for the United States

Congress was right to offer this support, but it presented a risk, given the foreseeable risk that the United States would shift from a supporter of the court to an enemy on short notice. The possibility of such a Jekyll-to-Hyde transformation was, indeed, already clear in the March funding act.

For the 11th year in a row, Congress told the Palestinian Authority that it cannot receive certain U.S. assistance if “the Palestinians [sic] initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” That condition was long ago triggered: following a referral by Palestinian officials in 2018, the ICC has since 2021 been investigating “the situation in Palestine,” covering the acts of any persons in Gaza and the West Bank and of Palestinian nationals elsewhere.

The U.S. government has opposed such an investigation every step of the way. In a gross misuse of its financial sanctions tools that jeopardized the ICC’s ability to function as a whole, the Trump administration in 2020 banned any transactions with the ICC prosecutor and a top aide, citing their moves toward a Palestine investigation and the investigation of post-9/11 U.S. torture in ICC member states, and threatening to “seek the dissolution of the court.” (For additional context, see a statement by former U.S. ambassadors and war crimes prosecutors in March 2020.)

The Biden administration withdrew those sanctions, stressing that U.S. objections “would be better addressed through engagement with all stakeholders.” But some members of Congress have kept alive the threat of sanctions and ending all cooperation, including a group of 12 senators who recently told the ICC prosecutor, “Target Israel and we will target you.” Others have vaguely called on President Biden to “fully implement” a 2002 U.S. law that, most famously, threatens the invasion of the Netherlands if U.S. or allied personnel were arrested by the ICC.

When it comes to Palestinians who seek redress for alleged human rights abuses, U.S. officials have struggled to answer the question, “Where do they go?,” sometimes suggesting that a negotiated two-state solution must come first. Many Palestinians understandably see an independent institution as essential to securing justice, and Palestinian victims, advocates, and affected communities have sought the ICC’s intervention for years. The families of Israelis who were taken hostage by Hamas on October 7 have urged the ICC to prosecute those responsible for those acts.

Many of the grounds that the U.S. government has offered for opposing this investigation are increasingly weak. U.S. officials had previously objected to the Palestine investigation as part of a broader objection to ICC investigations that touched on the actions of nationals of non-ICC member states (e.g., Israelis, Russians, or Americans). But under bipartisan congressional pressure, the Biden administration last year abandoned that wholly unpersuasive position to back the ICC’s probe of Russian crimes in Ukraine.

The Biden administration’s recent remarks (“We oppose…this investigation, and we do not believe it’s within their jurisdiction”) are probably based on the more specific view that Palestine does not “qualify as a sovereign state” able to join the ICC in the first place. The United States was not alone in taking that position, but even some of its closest allies have reversed their opposition in recent months, including the United Kingdom and Canada. Supermajorities of the UN Security Council and General Assembly have either recognized Palestine bilaterally or backed its bid to become a UN member state.

The ICC is a court of last resort. Since the October 7 attacks, all parties in the situation – including Hamas and other armed groups as well as Israeli forces in their response to the attacks – have committed acts that may amount to crimes within the ICC’s jurisdiction requiring investigation. Palestinian institutions have certainly not held Hamas and other armed groups to account, and ICC arrest warrants against leaders from those groups are a near-certainty. U.S. officials have often been quick to assure that Israel’s institutions are capable of holding its own forces to account, but ICC action depends on whether national institutions have in fact investigated the allegations before the court, not on the general strength of a country’s judiciary or law enforcement bodies.

The administration’s own recent assessments have been ambivalent. The State Department recently noted that “Israel does have a number of ongoing, active criminal investigations pending and there are hundreds of cases under administrative review,” but it concluded earlier this year that, in 2023, “Israeli authorities operating in Gaza took no publicly visible steps to identify and punish officials accused of committing human rights abuses.”

Let Cooler Heads Prevail

The world took note as the U.S. government spent the last two years touting a renewed commitment to justice for war crimes and embracing the role of international bodies when necessary. Attacking the court now when it investigates a friendly state’s actions will devastate the U.S. ability to credibly champion human rights and accountability in any forum. Cutting off the new support to the ICC’s Ukraine investigation would betray the interests of survivors and others who are fighting for justice. Sanctions risk having profound and unpredictable consequences on those who work with the ICC, including U.S. citizens. Litigation is also seldom successful at thwarting those full effects, especially for non-U.S. persons. What’s more, the U.S. government’s interest in helping Israel defend itself from attacks like October 7 does not require or justify such steps.

Some U.S. leaders have condemned the threats targeting the ICC. As Senator Chris Van Hollen said about his colleagues’ letter to the ICC prosecutor, “It is fine to express opposition to a possible judicial action, but it is absolutely wrong to interfere in a judicial matter by threatening judicial officers, their family members and their employees with retribution. This thuggery is something befitting the mafia, not U.S. senators.” So far, the Biden administration has similarly rejected “threats or intimidation” against ICC officials.

If opponents disagree with the ICC’s eventual actions, they have options compatible with the rule of law. Individuals who are charged by the ICC can challenge the admissibility of such charges. Their government can investigate the specific charges themselves, as a former senior Israeli official recently proposed creating a special commission to do. If announcing charges or taking other steps at a specific moment would jeopardize talks to secure the release of hostages, governments can say so.

Unlike sanctions, these responses would not risk shuttering an institution that activists for justice around the world – not just Palestinians, Israelis, and Ukrainians but Darfuris and Venezuelans and Filipinos, to name only a few – are working hard to mobilize and support. These responses would also avoid reinforcing the toxic perception that some situations within the ICC’s jurisdiction, and thus some victims, are simply beyond “the edge of the political universe in which the tribunal [is] allowed to function,” as one war crimes prosecutor described an earlier court.

If the ICC’s investigation produces arrest warrants against individuals responsible for crimes against Israeli and Palestinian civilians, the United States should not seek to destroy the court or end support for its investigations. Doing so would harm the legitimate efforts of survivors and advocates around the world to seek a measure of accountability and a way forward.

Image” Prosecutor of the International Criminal Court (ICC) Karim A. A. Khan KC addresses UN Security Council, May 14, 2024 (United Nations)

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When the U.S. government uses most of its other sanctions tools — like the Treasury Department’s Global Magnitsky program for abuse and corruption — it publicly names names.  Indeed, for civil society advocates who seek out sanctions, that is often the point.  The action imposes stigma and scrutiny on an alleged perpetrator, and it provides leverage for local activists seeking accountability.

With increasing frequency, though, the Department of State has announced that it is imposing visa bans for abuses and other bad acts but cannot reveal whom it has sanctioned, and that the sanctioned people themselves may be left unaware. Similarly, under a different legal authority, the State Department has sometimes kept visa bans secret even though it had the option to publicize them.

Visa sanctions can be useful tools to spur accountability, especially for acts that fall outside the legal scope of what other sanctions programs can cover.  But as the Biden administration has come to rely increasingly on these tools – as we at Human Rights First documented in a recent report – these measures need to be used more transparently if they are to have a serious impact, and if the public is to have confidence that U.S. policy efforts relying on these tools are meaningful.

What Works, What Doesn’t

Visa sanctions can matter.  Some recent U.S. announcements of visa bans have had a significant political impact, even if they lacked the additional financial punch of an asset freeze imposed by the Treasury Department.  

In December 2022, for example, shortly after the State Department barred a Ukrainian judge from the United States because of his alleged corruption, the Ukrainian parliament finally acted on long-standing demands from Ukrainian civil society to reform the notorious court that he led.  In August 2023, Congolese activists praised the State Department’s visa sanctions against three allegedly corrupt officials of a Congolese conservation agency, an action that prompted local authorities to start an investigation that the activists supported with evidence they had developed.

This kind of impact, of course, depends on public knowledge of who has been sanctioned.  Our new report takes stock of the two major U.S. visa sanctions programs that instead operate anonymously, either always or some of the time, and assesses the limits of using these tools to promote accountability.

First, we found that the Biden administration has made unprecedented use of visa bans under Section 212(a)(3)(C) of the Immigration and Nationality Act, otherwise referred to as the “foreign policy” or “3(C)” visa-ban authority.  Most of these actions have focused broadly on human rights concerns, which is generally welcome, though it is hard to know what this activity really amounts to.

By law, the State Department cannot publicly say whom it bars from entering the country with this tool.  The department often announces in more general terms that it has adopted a policy under this authority to ban the entry of individuals whom it finds have engaged in certain conduct – from undermining democracy in Bangladesh to coercively assimilating Tibetan children in China.  The 3(C) authority is attractive to the State Department because it provides flexibility in the acts that can be sanctioned.  

The State Department has sometimes made these actions less opaque by giving a count or a rough description of the people sanctioned – “2,596 members of the Russian Federation military” in a May 2022 batch, for example, and “over a dozen” Guatemalan officials and others late last year.  But it does not always do this, and it has sometimes left unclear whether anyone has actually been sanctioned under an announced policy.  That remains the case with a June 2021 policy about spoilers in the crisis in Cameroon’s Anglophone regions, for example, and a June 2023 policy aimed at foreign officials who help their nationals evade U.S. justice for serious crimes.

The Biden administration has already publicly announced at least 22 such policies, including seven since June 2023, compared to 11 in the Trump administration’s full term.  Some of the policies announced using this tool have been creative, aiming at important global problems like transnational repression or at crises that may not prompt White House action.  This administration’s 3(C) policies have been less exclusively focused on U.S. adversaries like China and Cuba than those of the Trump administration, which also abused this authority when it sanctioned international war crimes prosecutors.

Current and former U.S. officials have said that some of these policies have grabbed the attention of perpetrators and helped deter bad acts – for example, as part of the recent U.S. push to keep the democratic transfer of power in Guatemala on track.  

In several contexts, however, local human rights advocates who spoke with us were deeply skeptical of the impact that this kind of sanction can have.  An activist from Nigeria told us she had seen “no evidence of any significant impact” from a pair of nameless visa-ban announcements in 2023 focused on individuals undermining democracy there.  A Congolese civil society leader contrasting different types of U.S. visa sanctions told us, “The sanctions with names … are more dissuasive and educational than the anonymous ones.”  

That stands to reason, and makes it all the more regrettable that the recent surge in visa sanctions has come against the backdrop of a quiet year for the Global Magnitsky program, which saw 30 percent fewer sanctions imposed in fiscal year 2023 than the previous average.  

Limited Public Scrutiny of Section 7031(C) Sanctions

The use of confidential sanctions has made it impossible to assess how the administration is implementing the general legal ban – imposed under Section 7031(c) of annual U.S. appropriations laws – on corrupt or abusive foreign officials entering the United States.  The State Department is allowed to disclose whom it has found to meet that ban’s criteria, but it does not always do so.  

Using this flexibility to keep a sanction confidential may be reasonable in specific cases, though it means missing an opportunity: the impactful Ukraine and Congo sanctions mentioned above were imposed using Section 7031(c) and named names.  

Just as critically, the State Department’s lack of overall disclosure about whom it has sanctioned or waived under this program keeps half of the program in the dark.  The State Department reports some details to Congress behind the scenes, but the public has no knowledge of how many people – if any – are being sanctioned confidentially, or how many and what kind of waivers have been given.  In sum, the public does not know how this ban is being implemented, or why some notorious foreign officials –  like a senior Bahraini prince accused of torture – can visit the country despite credible allegations of corruption and human rights violations.

Solving the Information Gap Problem

There are some straightforward ways to mitigate the shortcomings in these two programs.  The State Department should periodically release aggregate statistics about its Section 7031(c) sanctions, including at least the number of people it has confidentially sanctioned and the number and types of waivers it has invoked to bypass the sanctions.  Congress should also legislate an exception to confidentiality – as proposed in a bipartisan 2021 bill – that would allow the Secretary of State to name names when he or she uses the 3(C) foreign policy authority.

The Biden administration should also acknowledge that there are some foreign policy tasks with which this set of tools is not commensurate.  When the State Department in February 2021 announced the “Khashoggi Ban” – a 3(C) visa-ban policy described as being aimed at Saudi and other individuals involved in transnational repression – it was seen as a welcome tribute to Jamal Khashoggi after his murder by Saudi government agents. 

As the Biden administration’s commitment to distancing itself from the brutal Saudi government waned, though, it continued to point to the Khashoggi Ban as evidence that human rights remained a meaningful factor in its Saudi policy.  But U.S. actions reflected in Biden’s fist-bump with the Saudi crown prince drowned out other elements of the relationship with Riyadh, especially as it remained unclear who had actually been sanctioned under the ban.  The State Department’s inability to say whom exactly it has sanctioned under a new 3(C) visa ban on extremist Israeli settlers and others destabilizing the West Bank is similarly likely to raise doubts over how significant that step is.

In the right context, a visa ban can be a politically powerful action.  Advocates are generally right, though, to see the anonymous variety of this tool as a strange and inscrutable creature in the overall toolkit of sanctions programs.  More transparency would give these sanctions more bite to match their bark, and make it clearer whether the policy that a given sanction is advancing is sufficiently robust.

IMAGE: Macro shot of a U.S. visa (via Getty Images)

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President Joe Biden’s recent order directing U.S. agencies to share evidence of Russian war crimes in Ukraine with the International Criminal Court (ICC) was a small but significant change in the U.S. government’s sometimes hostile relationship with the Court.

The post Biden’s Cooperation with the ICC Is a Step Toward Embracing Reality appeared first on Just Security.

At a recent National Press Club event, Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, appeared far more open than the Defense Department has been toward the possibility of U.S. assistance to the International Criminal Court’s (ICC) investigation of Russian war crimes in Ukraine. Secretary of Defense Lloyd Austin has privately opposed such support and publicly expressed misgivings about it, citing concerns that the ICC might prosecute U.S. personnel in the future. While other U.S. agencies, including the State Department, wish to back the Court, President Biden reportedly has refrained from settling the issue.

When Milley was asked about the Pentagon’s opposition to sharing evidence of Russian war crimes with the ICC, he said:

I would just say war crimes have been committed by Russia. The indiscriminate shelling of civilian populations – by policy; not by accident, but by policy – is a war crime by international law. The slaughter of citizens in some of the towns and cities of Ukraine by Russian troops is a war crime. So I fully support the ICC in pursuit of those, and we’ll see which way it goes.

Whether or not Milley’s comments hint at a possible change in U.S. policy, they complicate the bureaucratic picture on this issue.

Below is a chronology of selected developments on the issue of U.S. support to the ICC’s Ukraine investigation. It traces the Biden administration’s position from a starting point of categorical opposition, through a short and sometimes confused period of public deliberation, to an apparent position of at least rhetorical support by the middle of last spring. Congress then seemed to consolidate that position at year’s end with legislation that aimed to remove any legal hurdles to more tangible forms of support as well.

But this spring, it became clear that the public expressions of U.S. support ran in parallel with a continuing, behind-the-scenes objection by the Defense Department. That objection appears to stand in the way of answering a request for Russia-related evidence from the ICC’s prosecutor but is apparently broader in scope than that request. That, in turn, has led to months of sustained scrutiny and pressure from members of Congress, human rights advocates from Ukraine and the United States, and Ukraine’s top prosecutor calling for the United States to provide evidence and other tangible assistance to the Ukraine investigation, not just make supportive statements about it.

2021: U.S. Objections to the ICC’s Jurisdiction

April:  In announcing the withdrawal of the Trump administration’s sanctions against two senior ICC officials, Secretary of State Antony Blinken reaffirmed the U.S. government’s “longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties….”

Spring 2022: U.S. Officials Signal General Support for an Investigation into the Situation in Ukraine

Less than one week after Russia’s full-scale invasion of Ukraine, ICC prosecutor Karim Khan announced the opening of an investigation into “the situation in Ukraine,” following referrals from 39 ICC member States. After some initial hesitation, U.S. officials began to express general support for the investigation as part of a broader backing for accountability.

March 3-4:  A White House spokesperson twice indicated that the U.S. government would provide information to the ICC, among other international bodies investigating Russian war crimes, but did not explain when asked how this would be reconciled with the U.S. objection to ICC action against the nationals of non-member States such as Russia. (Just Security published on March 8 an op-ed by Adam Keith discussing the weaknesses of the U.S. objection and calling for the U.S. government to set it aside.) 

March 15:  The U.S. Senate unanimously passed a resolution introduced by Senator Lindsey Graham (R-SC) that “encourage[d] member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate [Russian] war crimes and crimes against humanity” and “supports any investigation into” such crimes. (Just Security published on April 13 a broader collection by Ryan Goodman of statements and comments on accountability from members of Congress.)

March 23:  After Secretary Blinken announced the U.S. determination that Russian forces had committed war crimes in Ukraine, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said to a reporter who asked about U.S. support for the ICC: “I think everything’s on the table. We’re considering all the various options for accountability. There have been no specific asks.”

Early April:  In discussing with reporters options for justice in Ukraine, Deputy National Security Advisor Jon Finer noted to a reporter that “the ICC may be a challenging option…because of the jurisdictional and membership issues you mentioned,” while National Security Advisor Jake Sullivan noted that “[t]he U.S. has in the past been able to collaborate with the International Criminal Court in other contexts, despite not being a signatory.”

April 5:  Former senior Bush administration lawyer John Bellinger and former Senator Chris Dodd (D-CT) published a Washington Post op-ed calling on the Biden administration to use existing exceptions in U.S. law to provide intelligence and other support to the ICC’s Ukraine investigation. They argued on several grounds that such support would not “be inconsistent with U.S. objections to the court’s claimed jurisdiction over U.S. personnel.”

Late April:  When asked by Representative Sara Jacobs (D-CA), Secretary Blinken stated at a House Foreign Affairs Committee hearing on April 28 that the Biden administration supports the ICC’s Ukraine investigation and was “looking to see how we can support it.” (In subsequent months, U.S. officials made similar expressions of support before U.N. or European regional bodies or signed on to joint statements with other governments that did the same.)

Fall and Winter 2022: Congress Passes Legislation to Bolster U.S. Support to the ICC, at Least for Ukraine Investigation

September 28:  At a Senate Judiciary Committee hearing, several senators, including Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), and Graham, signaled to Justice and Homeland Security Department officials an interest in tangible U.S. support to the ICC. Graham noted the committee was exploring legislation to loosen restrictions on certain forms of such support and that the administration had signaled its backing.

December 29:  President Biden signed into law an appropriations act that amended or overrode certain long-standing legal restrictions on U.S. support to the ICC, at least for its Ukraine investigation. Senator Chris Coons (D-DE), chairman of the relevant Senate Appropriations subcommittee, described the intent and effect of these provisions after the act’s passage: “With bipartisan support, I am proud to have authorized our government to support the International Criminal Court’s efforts to prosecute those responsible for the unspeakable horrors that have been committed against the Ukrainian people.”

Other provisions required the U.S. government – and the intelligence community in particular – to collect and preserve evidence of Russian atrocities, as well as to identify in a report to Congress the “process for a domestic, foreign, or international court or tribunal to request and obtain from the United States Government information related to war crimes or other atrocities.” The law also generally lifted a ban on U.S. funding to the ICC and allowed ICC officials to interview witnesses on U.S. territory for the Ukraine investigation. (Just Security published an explainer on the legislation by Todd Buchwald in March 2023.)

Spring 2023: U.S. Support Remains Rhetorical While the Defense Department Opposes Tangible Assistance to the ICC

Press reporting soon revealed that the Pentagon still objected to U.S. support for the ICC’s Ukraine investigation, leaving a significant gap between the statements of support coming from the State Department and White House and the prospects of material U.S. assistance for the court.

February 2:  The State Department’s spokesperson referred specifically to U.S. support for the ICC in answering a broader question about accountability for Russian crimes in Ukraine: “The ICC is engaged in a process that we are supporting.”

March 8:  The New York Times reported that the Defense Department was blocking a favorable U.S. response to a request of the ICC prosecutor for information regarding Russian war crimes in Ukraine. The Times reporting indicated that the issue had been raised through the interagency process – including a Feb. 3 meeting at the cabinet secretary level – to President Biden, who had not resolved it. According to the Times, Pentagon officials “fear setting a precedent that might help pave the way for [the ICC] to prosecute Americans.”

With reference to the new legislation, Graham told the Times that Pentagon officials “have raised their concerns, and they are not illegitimate, but I think on balance what we did in the legislation is the way to go and I want them to honor what we did,” noting the law had been “a collaborative effort” that Congress had done “with the administration.” (Just Security published an op-ed on the general outlines and stakes of this interagency dispute by Adam Keith on March 4.)

March 9: At a hearing of the House Permanent Select Committee on Intelligence, the two top U.S. intelligence officials appeared to dispute that there were any Pentagon or other internal barriers to the U.S. provision of intelligence on Russian war crimes to the ICC. (Representative Jason Crow (D-CO): “[I]s it your understanding that the Department of Defense is holding up the provision of information or intelligence to the ICC?” Director of National Intelligence Avril Haines: “No.”) Subsequent hearings suggest they may simply have been unaware of this issue.

March 17:  The ICC announced that its judges had approved requests from the prosecutor for arrest warrants against Russian President Putin and an aide for war crimes. When a reporter asked for his reaction to the warrant against Putin, President Biden said, “Well, I think it’s justified. But the question is, it’s not recognized internationally by us either. But I think it makes a very strong point.”

March 24:  In the first bipartisan congressional response to the March 8 Times report, six senators (Durbin, Graham, Bob Menendez (D-NJ), Thom Tillis (R-NC), Richard Blumenthal (D-CT), and Whitehouse) sent a letter to President Biden urging him to make use of the new legislative authority to support the ICC’s Ukraine investigation:

Last year’s bipartisan congressional action to enhance that support was done in collaboration with your administration to balance all perspectives on the U.S. relationship with the ICC. … [T]he United States reportedly has not yet shared key evidence that could aid in these prosecutions. . . . [W]e urge you to move forward expeditiously with support to the ICC’s work so that Putin and others around him know in no uncertain terms that accountability and justice for their crimes are forthcoming.

April 5:  A coalition of 37 Ukrainian civil society organizations focused on justice and accountability issued a memorandum on “Shared Guiding Principles on Accountability for Grave Crimes Committed in Ukraine.” Among other topics, the memorandum states:

Ensuring justice for grave crimes is based on the cooperation of states, which includes, inter alia, the sharing of information beneficial for effective prosecution and the execution of arrest warrants. In this context, it is important to support and encourage further cooperation between the United States and the ICC.

April 19:  At a House Foreign Affairs Committee hearing, when asked about U.S. support to the ICC, Ukrainian Prosecutor General Kostin described the cooperation and division of labor between domestic Ukrainian justice institutions and the ICC: “Please know that if you support the ICC, you are supporting us.”

Deputy Attorney General Lisa Monaco’s written testimony for a Senate Judiciary Committee hearing acknowledged the ICC-related provisions in the appropriations act and noted they were “under review.” At the hearing itself, in response to questions from two senators (Durbin and Graham), Monaco acknowledged that there were no legal barriers to U.S. support. Graham unsuccessfully pressed Monaco to confirm that the Defense Department was blocking such support and he said:

I’ve been told by people who care that the intel is not flowing, as Senator Durbin described, because of the Department of Defense. …We’re not jeopardizing any American soldier. … I don’t care what [the Pentagon’s] concerns are, they can share them with me.

Summer 2022: Congressional Pressure on the Biden Administration Continues  

A bipartisan group of senior senators continued using a series of public hearings and letters to press President Biden and top administration officials to match policy to rhetoric and use their new authorities to assist the ICC’s Ukraine investigation. They were joined by other members of Congress and retired generals as well. 

May 11:  At a Senate Appropriations defense subcommittee hearing, two senators (again Durbin and Graham) challenged Secretary of Defense Lloyd Austin’s statements of support for pursuing accountability for Russia’s war crimes. In a lengthy exchange featuring the first public, high-level Defense Department comments on the issue, Austin indicated he had “concerns about reciprocity going forward” and “remain[ed] concerned about the protection of U.S. military personnel” but did not further explain his position when pressed.

May 23:  In an op-ed in Defense One, retired U.S. generals Philip Breedlove, Wesley Clark, and Ben Hodges analyzed and sought to allay Secretary Austin’s concerns and urged President Biden to overrule the Pentagon’s opposition. “

[T]he United States can manage the legal risks of our own deployments overseas without separating ourselves from the institutions that Ukraine’s government and civil society are asking the United States to assist as they pursue justice. President Biden should authorize the sharing of U.S. evidence and other support for the ICC’s important work.

May 31:  At a Senate Foreign Relations Committee hearing with Van Schaack, multiple senators (Menendez, James Risch (R-ID), Coons, Chris Van Hollen (D-MD)) expressed frustration with the Defense Department’s objection. Van Hollen obtained Van Schaack’s confirmation of the Defense Department’s role in impeding U.S. support to the court.

June 6:  Twenty-three members of Congress (led by Crow and Joe Wilson (R-SC), with 14 Democrats and nine Republicans) send a letter urging President Biden to support the ICC in Ukraine:

We were disappointed to learn through public reporting that the administration may choose to not use this new authority due to objections by the Department of Defense. We understand that [the Defense Department]’s objections are based on historic concerns regarding our non-party status to the ICC and setting precedent to change our status. However, our bipartisan Congressional coalition already took these concerns into account and narrowly tailored the authority accordingly.

June 23:  Four senators (Durbin, Graham, Menendez, and Tillis) sent another bipartisan letter calling on Biden to support the ICC and disputing the risks of doing so:

We understand that the United States’ unwillingness to share this key information with the ICC is causing partner nations to hold back as well. Despite your public condemnation of Russian crimes against humanity and war crimes in Ukraine, our current posture on the ICC sends a message to the world that parochial self-interested concerns, even where unfounded, take priority over seeking justice for Putin’s crimes. We believe it is possible to support credible investigations by the court without putting our own servicemembers at risk of prosecution….

June 30:  As noted above, Milley gave a seemingly positive, if caveated, response when asked at a National Press Club event about the Pentagon’s apparent opposition to sharing evidence of Russian war crimes with the ICC:

I would just say war crimes have been committed by Russia. The indiscriminate shelling of civilian populations – by policy; not by accident, but by policy – is a war crime by international law. The slaughter of citizens in some of the towns and cities of Ukraine by Russian troops is a war crime. So I fully support the ICC in pursuit of those, and we’ll see which way it goes.

July 3:  In taking questions at an event on the launch of a European initiative to gather evidence of Russia’s crime of aggression, Assistant Attorney General Kenneth Polite appeared to express U.S. support for the ICC’s investigation of war crimes in Ukraine. Polite noted that the Justice Department “has taken the position that the ICC’s charges and arrest warrants against Putin were justified,” and twice noted that the ICC is among the justice mechanisms the United States supports.

IMAGE: U.S. Joint Chiefs of Staff Chairman Gen. Mark Milley spoke at the National Press Club on June 30, 2023 in Washington, D.C. (Photo by Anna Moneymaker via Getty Images)

The post Is the Pentagon Relenting?: A Close Study of Opposition to the Int’l Criminal Court’s Ukraine Investigation appeared first on Just Security.

In a similar context, the victims of abuses by U.S. security partners saw a modest win last fall when the State Department reallocated $130 million in foreign military financing that had been slated to go to Egypt. It did so because it could not certify that the Egyptian authorities were “taking sustained and effective steps” toward addressing the human rights-related conditions that Congress had imposed on the funds.

Most of the reassigned funds, though, were sent without similar conditions to the Philippines, another partner of the United States whose security forces have committed serious human rights abuses against their own people.

On the eve of Marcos’s visit, the current mood in Washington around U.S.-Philippine relations is just short of exuberant, as the Marcos administration is proving to be quite committed to the countries’ security alliance. Marcos has offered expanded access to military bases after his predecessor, Rodrigo Duterte, had flirted with scrapping a key U.S. treaty and realigning his country with China. U.S. counterparts nonetheless need to convey that U.S. security assistance will depend at least in part on progress on human rights.

During the six-year term of Duterte’s administration, which ended in 2022, the brutal “war on drugs” that the Philippine police carried out consumed most of the attention that U.S. officials gave to human rights in the Philippines. But Filipino human rights groups like Karapatan have made clear that the transition to the Marcos administration did not stop extrajudicial killings and other abuses. Such abuses have not been limited to the police, but rather include killings of human rights defenders and other civilians by security forces engaged in an armed conflict with a communist rebel group.

The U.S. government is well aware of these trends. The State Department noted in its latest human rights report that, for example, the often-deadly practice of “red-tagging” (labeling critics or activists as communists or terrorists) has continued under the Marcos administration. U.S. diplomats stress that they always raise the issue of human rights in meetings with Philippine counterparts, and the readouts of recent high-level meetings do mention it. But the abuses have continued, and impunity still prevails.

Human Rights First (where I work), other civil society organizations, and U.S. members of Congress have urged the U.S. Treasury and State Departments to impose targeted sanctions under the Global Magnitsky program against specific Philippine officials allegedly involved in extrajudicial killings. This would be a more targeted approach to pressing for accountability than cutting security assistance, and one that has produced a measure of behavior change in the context of other U.S. security partnerships. But the two agencies have not acted despite abundant evidence of sanctionable abuses.

For its part, Congress has for several years taken steps – mostly modest ones – to nudge the executive branch into seeking greater accountability in its partner’s armed forces.

Its most serious move was to ban U.S. counternarcotics assistance to the Philippine National Police, which was deeply compromised in Duterte’s war on drugs. But Congress has also required the State Department to submit occasional reports on, for example, Philippine efforts to prosecute armed forces personnel involved in extrajudicial killings, and to stop acts of intimidation and violence by state or paramilitary forces against journalists and human rights activists.

These reports appear not to have been made public, even when Congress has directed that they be posted online. It is thus hard to know whether the U.S. government has claimed to see progress, or felt more pressure to act because of the lack of progress. The increasingly skeptical and prescriptive tone of Congress’s requests – it directed the State Department this year to explain how U.S. security assistance is actually “helping to achieve results in addressing the findings” in its reports – suggests an awareness that these nudges are not working.

There are more tools in the policy toolkit, though, and the executive branch and Congress should use them.

• In the immediate term, one priority we at Human Rights First have heard from local activists for next week’s visit is for Biden to ask Marcos to end the practice of red-tagging, which has so often led to the harassment or even murder of journalists, humanitarian workers, indigenous leaders, and human rights defenders.
• To reinforce such a request, Congress should condition U.S. security assistance on a set of criteria like those it developed for assistance to the Egyptian government, which include taking steps to hold security forces accountable and protect the safety and rights of activists.
• The U.S. government’s handling of its military aid to Egypt has been no model for effective human rights diplomacy, and many Filipino groups support a total cutoff of security assistance until the Philippine government ends impunity and makes reforms. If not enough members of Congress will back that approach, conditioning at least some assistance would convey that the United States will no longer play out an endless cycle of “raising the issue” of human rights from year to year without real stakes.
• The International Criminal Court’s investigation of extrajudicial killings in the war on drugs is a rare and important independent probe into abuses in the Philippines; the State Department has acknowledged the probe’s existence but not publicly taken a position on it. The U.S. government’s own history of hostility toward the court gives it little standing to press for full cooperation, but it should encourage Philippine authorities not to interfere with the family members of victims or others who may wish to cooperate with the investigation themselves.

The United States should know that it cannot successfully pursue its security interests in the Asia-Pacific region at the expense of the basic rights of its partners’ citizens. As we at Human Rights First said in a case study about the Philippines last year, “[w]idespread killings and persistent impunity are not a sustainable foundation for such an alliance, and they portend further democratic backsliding and instability that would drive the two countries apart.”

IMAGE: US President Joe Biden meets with Philippine President Ferdinand Marcos, Jr., on the sidelines of the UN General Assembly in New York City on September 22, 2022. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

The post On Eve of Marcos Visit, US Must Center Human Rights in US-Philippines Security Relationship appeared first on Just Security.

The United States, for its part, has vocally championed the importance of accountability in Ukraine. President Biden, Vice President Harris, and Secretary of State Blinken all called for justice in their recent statements that Russian abuses amounted to crimes against humanity. But even though Congress in December loosened the laws that have long restricted U.S. support for the ICC – and did so for the purpose of facilitating U.S. assistance to the ICC’s investigation in Ukraine – the administration still has not lifted the internal policy barriers to supporting that investigation. If the Biden administration believes that “no nation is safe in a world… where crimes against humanity are committed with impunity,” as Harris said last week, senior officials need to make the decision to back the ICC.

The U.S. government is rightly giving technical assistance and political support to Ukraine’s judicial institutions, which have registered more than 65,000 cases of alleged Russian war crimes. But the ICC fills a different role than domestic courts, and it needs backing too. Ukrainian authorities are expected to focus their investigations on mid- and lower-ranking Russian officials; the ICC, with its greater international reach and clearer legal ability to prosecute commanders and senior civilian officials for their role in serious crimes, is focused on those who bear broader responsibility for Russia’s atrocities.

In other contexts, the U.S. government has helped war crimes tribunals by providing leads and evidence that helped them build complex cases. It has also helped locate and apprehend war crimes defendants.

One barrier to such support for the ICC fell away in April 2021, when the Biden administration decided that the Trump-era sanctions on the court’s prosecutor were an “inappropriate and ineffective” response to the ICC’s scrutiny of post-9/11 U.S. torture in Afghanistan, and further reset relations with the court as a new prosecutor took office. U.S. officials had hinted in the weeks after Russia’s February 2022 invasion that they saw obstacles to assisting the ICC’s work in Ukraine, but they later made or signed on to supportive statements that suggested any such hurdles had been surmounted.

Congress gave a strong push in this direction in December when it passed legislation addressing the U.S.-ICC relationship. Historically, Congress has led U.S. skepticism toward the ICC, imposing legal prohibitions that constrained the U.S. relationship with the court and its member states with only limited and complex exceptions. But in the last days of the 2022 session, a bipartisan set of champions led Congress to rewrite portions of two 20-year-old statutes to loosen several of those restrictions, in some cases specifically for the benefit of the ICC’s Ukraine investigation.

Among other things, the revised laws allow ICC officials to meet with potential witnesses relevant to the Ukraine investigation in the United States, rather than requiring traumatized refugees to leave the country to share their evidence. The U.S. government can now fund the court, albeit with restrictions that may or may not prove workable. And it can provide these and other forms of support without waiting until the ICC’s Ukraine investigation produces arrest warrants. Congress should have extended these new forms of support to the ICC’s work around the globe, rather than limiting them to the Ukraine context, but it left no doubt that it intended to eliminate the obstacles to supporting the ICC in Ukraine.

Nonetheless, when pressed over recent months, U.S. officials from multiple departments have told civil society groups that the United States still objects to a basic feature of the ICC: its ability to investigate the acts of individuals from countries that have not accepted the court’s jurisdiction, when those acts take place on the territory of countries that have. That category includes Russians in Ukraine just as it does Americans in Afghanistan, which would suggest that U.S. statements of support for the ICC’s Ukraine investigation – which to date appears to have focused solely on Russians – have lacked any meaning. It also makes the new legal flexibility that Congress provided unusable.

The U.S. government has maintained its objection over the years (though not consistently) because some imagine that it provides a protective argument should U.S. officials face allegations of war crimes in an ICC member state. It does not. The ICC’s judges have repeatedly upheld the court’s ability to prosecute individuals from non-member countries, and even close U.S. allies do not take the U.S. position seriously.

The muddled U.S. view on the Ukraine investigation has costs. As things now stand, the administration will be caught flat-footed and unable to assist when the ICC begins to issue arrest warrants against Ukraine-related defendants and seeks help locating and arresting them. Top U.S. lawyers and diplomats will presumably be hedging their remarks or offering misleading claims of support at Ukraine’s Lviv conference this weekend, or at the conference that the British and Dutch governments are hosting on “practical support to the ICC” next month.

The ICC’s investigation may be the only viable effort to hold accountable certain senior Russian officials for their forces’ atrocities in Ukraine. The only thing that stands in the way of the United States supporting that effort is its misguided position that the ICC should not investigate individuals from non-member states such as Russia. There is no legal impediment to dropping that position, nor any winning policy argument for maintaining it, but the administration has allowed the issue to remain unsettled more than a year into Russia’s full-scale invasion.

Helping the survivors of Russia’s war crimes in Ukraine secure justice is an urgent task, and Congress has opened the door wide for the United States to serve as a partner through all the institutions that Ukraine has mobilized. The Biden administration should finally decide to do so, and members of Congress should hold it to account.

IMAGE: U.S. President Joe Biden (R) meets with President of Ukraine Volodymyr Zelensky (L) in the Oval Office of the White House on December 21, 2022 in Washington, DC. (Photo by Alex Wong/Getty Images)

The post Almost There: When Will the Biden Administration Support the ICC in Ukraine? appeared first on Just Security.

These abuses may sound like they are drawn from Russia’s playbook to brutalize and depopulate parts of Ukraine. In fact, they come from the 2008 war in Georgia, which involved Russian, Georgian, and Russian-allied separatist South Ossetian forces. The ICC began to formally investigate crimes associated with that war in 2016, with the strong support of many of the victims. But this slow-moving effort at accountability has attracted none of the enthusiasm for justice that the U.S. government and its European peers have rightly shown in response to the ongoing atrocities in Ukraine.

Sadly, such an outpouring of support for accountability is not the norm. Even regarding Ukraine, there is little evidence so far that the U.S. government has provided real assistance to the ICC’s investigation – perhaps because the United States has not yet fully set aside its longstanding objection to the court’s jurisdiction over perpetrators from states that have not joined the ICC treaty (in this case, Russia).

But regarding Georgia, even a broader set of governments that typically present themselves as champions of justice have, until recently, remained quiet and done little to offer their backing for the ICC’s work. Those governments should seize the opportunity of the new Georgia arrest warrants to show two things: that their support for justice, while reinvigorated by Russia’s brutality in Ukraine, is not limited to that war; and that when abstract calls for accountability finally bear fruit, their support will be more than rhetorical.

The 2008 war in Georgia was short but replete with reports of violations of the laws of war by all parties. Among other abuses, the ICC prosecutor has found that South Ossetian forces led a “forcible displacement campaign” that destroyed 5,000 dwellings, drove out at least 75 percent of the region’s ethnic Georgian population, and amounted to a crime against humanity. The role of international bodies in providing accountability for such abuses became vital after national authorities (i.e., Georgia and Russia) conducted only fitful and unproductive investigations of their own, prompting the ICC prosecutor in 2016 to step in after several years and investigate as the “court of last resort.”

The ICC’s Georgia investigation attracted scant support from key governments over the next six years, despite the clear need for such support in the face of steep challenges. No states referred Georgia to the ICC to help launch the investigation in the first place, as dozens of European states did for Ukraine this March. Until this spring, neither the European Union nor the United States made more than a passing reference to the Georgia investigation in public, even when speaking about human rights in Georgia or expressing support for other ICC investigations. Even the U.N.’s Human Rights Council, which has asked states to cooperate with the ICC in situations ranging from Venezuela to Palestine to Mali, made no mention of the court in its annual resolutions on Georgia until this April, just after the prosecutor announced he was seeking the three arrest warrants.

To be sure, some of the factors that spurred a vocal international call for justice in Ukraine have been missing in Georgia, as they have been in some other ICC situations that have attracted only tepid international support. The brief 2008 war in Georgia produced a less shocking tally of atrocities than the Ukraine war has; rather than inviting outside scrutiny, Georgian authorities for years undertook just enough investigative activity to ward off the ICC’s intervention; and Russia’s international standing was less compromised in 2008 than by the time of the 2022 invasion. But whatever accounts for the posture of the U.S. and European governments, they missed opportunities to shore up the tenuous prospects for justice.

Once the ICC prosecution began the Georgia investigation in 2016, it took an extraordinarily slow approach, waiting six years before finally making its first move in the courtroom this spring. No government forced that approach on the court, but many of the European states that are among its members kept the ICC’s budget largely static at a time when it needed resources to conduct new investigations such as this one. And none of these states seem to have signaled the court they would give it diplomatic backing if it took an unprecedented step like prosecuting officials from a major world power or a close Western partner.

In turn, as the ICC’s seeming inactivity bred confusion and disappointment for victims and other Georgians, outside states did little to help build understanding and support for the court’s work. In at least one case, they actively worsened the problem: when the Trump administration in 2020 baselessly announced that the ICC was corrupt and threatened to dissolve it with financial sanctions, many Georgians accepted the U.S. accusations and began to call the ICC prosecutor corrupt and incompetent. More passively, these governments have said little to push back on claims by Georgian authorities or other critics that domestic advocates were disloyal for insisting that all parties to the 2008 war be investigated.

Finally, these governments missed an opportunity to signal to Russia that the ICC’s scrutiny would be a real factor in their policy. U.S. Secretary of State Antony Blinken is certainly right to warn now that “allowing grave abuses in Ukraine to go unpunished will not only embolden the Kremlin, but brutal regimes everywhere.” It would have been wise to make this point and send dissuasive signals years earlier, especially in a context like Georgia where Russia and its local allies had already deployed criminal methods within the ICC’s jurisdiction.

Perversely, Russia’s invasion of Ukraine has now created a new opening to do that. The current ICC prosecutor, Karim Khan, seemingly spurred by the need to show that his threats of accountability in Ukraine were not idle, finally gave the shapeless Georgia investigation some form by publicly requesting the three arrest warrants in early March. Prosecuting these three individuals would hardly represent a full accounting for the abuses of the 2008 war if, as the court’s budgeting documents suggest, the prosecutor has no near-term plans to pursue additional cases. Still, the new charges have created an opening to support justice that European governments and the United States should not miss.

The U.S. government appears to have acknowledged the Georgia investigation for the first time in a joint statement last month with several U.N. Security Council members that are members of the ICC. But they should all go further. To complement the ICC’s limited assistance work, which focuses primarily on providing medical treatment, trauma counseling, and other rehabilitation, they should help victims and communities who lost everything in the war develop income-generating activities as well. They should belatedly give the Georgia investigation attention and explicit support in the Human Rights Council and at this year’s meeting of the ICC Assembly of States Parties.

For its part, the United States has a unique ability to help encourage the arrest of the three new fugitives, as difficult as that may prove. Unlike the ICC’s own member states, the U.S. government has the legal authority to offer monetary rewards for information on the whereabouts of ICC fugitives, which in the case of the three South Ossetians do not appear to be widely known.

At least one of the three fugitives, South Ossetia’s then-interior minister Mikhail Mindzaev, appears to have Russian nationality and not Georgian. That could implicate the historical U.S. objection to the ICC investigating an individual from a country that is not an ICC member state for crimes committed in a country that is. But if the Biden administration has meant what it said about supporting the ICC’s Ukraine investigation – another effort that unavoidably presents the issue of Russian exposure to the court – then it should be able to support the cases against all three of the Georgia fugitives with a reward offer. Adding the fugitives to one of the State Department’s entry-ban lists would be another way to show victims and perpetrators that Georgia’s partners are taking the ICC’s investigation seriously, even if the three are not likely to try visiting the United States.

As for the ICC, the prosecutor should not simply draw a line under the Georgia investigation, as if it served its purpose merely by signaling the court’s seriousness in Ukraine. The prosecutor should pursue state cooperation to carry out the three arrest warrants. He should continue the investigation, focusing on crimes against humanity as well as war crimes, regardless of which party was responsible. If he develops evidence that supports charges against other perpetrators – as some of his submissions to the court suggest he may have – he should bring those charges. Most of all, the prosecutor should visit Georgia, meet with victims and civil society, and communicate with them about recent developments and likely next steps, as he recently has done in several other situations under ICC investigation.

For better or worse, governments will have a major say in what impact the ICC’s Georgia prosecutions ultimately have. Their support can help show victims of the 2008 war that their humanity and their suffering are being recognized after years of neglect. And it can show present-day perpetrators in Ukraine that today’s talk of accountability stands a chance of turning into tangible consequences.

IMAGE: Darejan Otinashvili, 62 years old, retrieves her family photos on May 23, 2022 in Khurvaleti, Georgia. Otinashvili is an IDP from the 2008 Russia-Georgia war, now living in Khurvaleti IDP settlement. “These are photos from our life in Achabeti village, before Russia occupied it in 2008.” Earlier that month, Anatoly Bibilov, the current leader of South Ossetia, said the breakaway region would hold a referendum on July 17 on whether to join Russia. In 2008, South Ossetia was at the center of a war between Georgia and Russia, which then recognized South Ossetia and Abkhazia, another breakaway region in Georgia, as independent states. (Photo by Daro Sulakauri/Getty Images)

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