When To Fold ‘Em: What Biden Should Do About Trump’s Lesser Known Foreign Policies

He’ll be facing tough decisions on Cuba sanctions, the International Criminal Court, and more.

December 28, 2020 • Commentary
This article appeared on The American Conservative on December 28, 2020.

There is considerable speculation about how a Biden administration will deal with the policies that President Trump put in place with respect to Iran, China, North Korea, and Washington’s relations with traditional U.S. allies. The prevailing expectation is that on most of those issues, Biden will attempt to restore the status quo ante of the Obama years. Thus Washington is likely to return to the multilateral agreement regarding Iran’s nuclear program and seek to end the trade war with China. Unfortunately, the shift may also mean rescinding Trump’s burden‐​sharing demands on the NATO countries, Japan, and South Korea, and abandoning Washington’s embryonic rapprochement with Pyongyang.

Although those matters have received the bulk of scrutiny from the policy community and the news media, there is another set of “second‐​tier” issues that also deserves some attention. And as in the case of the higher‐​priority issues, the new president faces important decisions about which Trump policies to continue and which ones to terminate.

Two second‐​tier policies deserve to be ended promptly. One is Washington’s continued enthusiasm for economic sanctions against Cuba. Admittedly, that was not a policy unique to Donald Trump; Washington first adopted the approach during the Eisenhower administration in response to Fidel Castro’s communist revolution, and a series of administrations, Republican and Democrat, persisted in it over the decades. As time passed, the effectiveness of the U.S.-led sanctions system faded. Cuba’s crumbling cities look as though they’ve been caught in a time warp, their streets littered with decrepit automobiles from the 1950s. Nevertheless, Washington’s strategy of pressuring the regime to democratize and restore the property rights of both Cubans and foreign investors showed no signs of success. Furthermore, the leakage of Washington’s sanctions grew worse each year, as more and more countries defied or evaded the strictures.

President Obama seemed to recognize the fading effectiveness of the existing approach and took limited steps toward normalizing relations. Unfortunately, President Trump reversed many of those steps, and the surly impasse between Washington and Havana resumed. Indeed, Trump has imposed new sanctions during his final months in office. Biden should immediately rescind Trump’s executive orders on this issue and then move beyond the Obama administration’s policies toward establishing a normal diplomatic and economic relationship with Havana. Six decades of a failed policy is more than enough.

A second policy that Biden should reverse during his initial weeks in office is Washington’s support for the Saudi coalition’s war against the Houthis in Yemen. As is the case with Cuba policy, Trump did not initiate the U.S. entanglement in Yemen. It began in 2015 under Obama, and as the number two official in that administration, Biden bears considerable responsibility for its pursuit.

There are few actions more shameful over the past decade than Washington’s assistance to Riyadh’s war effort, despite mounting evidence that the Saudi coalition has committed an array of war crimes. Using Iran’s support for the Houthis as an excuse, the Saudis have waged a savage war against Yemen’s civilian population. According to the UN Office for the Coordination of Humanitarian Affairs, the death toll in that country now exceeds 233,000, mostly from “indirect” causes. Those indirect causes include disruption of food supplies because of the Saudi coalition’s continuing economic blockade and the destruction of water purification facilities from Saudi air strikes. The latter campaign helped trigger a cholera epidemic in 2016 that persists to this day.

Continuing to sell weapons to an “ally” that engages in such behavior is a disgrace, but Washington’s culpability has gone far beyond such assistance. The U.S. military specifically aided Riyadh’s war effort in Yemen by refueling Saudi coalition warplanes and providing intelligence to aid their targeting measures. Trump eventually halted the former collaboration, but there is no evidence that the latter has ended. Biden needs to terminate all remaining American support for Saudi Arabia’s Yemen intervention.

Even with respect to second‐​tier issues, there are some Trump policies that the Biden administration should endorse and continue. One is Trump’s decision to withdraw the United States from the UN Human Rights Council (formerly the UN Commission on Human Rights) in June 2018. Trump’s primary reason for taking that step—anger at the Council’s criticism of Israel’s treatment of the Palestinians—was not the best justification, but the HRC was and remains a deeply flawed body. Indeed, it is populated by governments that have some of the worst human rights records. In 2018, Eritrea and the Philippines were elected to join the likes of Saudi Arabia and Egypt. In October 2020, the roster of members seemed to get even worse, with China, Russia, Pakistan, Cuba, and Saudi Arabia poised to get seats. It was a “who’s who” of the worst human rights abusers.

The Biden administration should not countenance U.S. participation in such a disgusting farce. International cooperation must be a means to an end, not an end in itself. Promoting global peace and furthering human rights are worthy objectives. Participating in an international body that makes a mockery of such objectives does not warrant U.S. endorsement or involvement. President Biden should keep the United States out of the misnamed UN Human Rights Council.

Another Trump policy that warrants continuation is Washington’s refusal to collaborate with the International Criminal Court. The ICC is one of those institutions that sounds good in theory; after all, who can object to putting war criminals on trial for their evil deeds? But the ICC becomes less and less appealing the closer one gets to the details. The official protections seem relatively robust. Due process guarantees include “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy.”

However, a closer look reveals several troubling deficiencies. Not only is there no provision for trial by jury (admittedly a largely Anglo‐​American innovation), but verdicts are rendered by a sole trial judge. That is a serious defect, since it means that a defendant can be sentenced to a long prison term based on the decision of a single individual. Granted, there are provisions for appeals, but that hardly remedies such a deficiency at the trial level. Moreover, appeals are decided by majority vote of very small (three‐​judge) panels—another worrisome limitation.

There are other problems. Judges have discretion about whether to admit secret witness testimony or hearsay evidence—a loophole that can effectively negate the right to confront one’s accusers. Protections against bias on the part of ICC judges conducting a trial or hearing an appeal are reasonably strong on paper, but not always in practice. (Judges with a potential conflict of interest or bias are supposed to recuse themselves, but enforcement provisions are vague at best.) A defendant’s fate, therefore, could rest with jurists who harbor personal or ideological animus. Worse, a defendant could face a judge whose government dictates the vote on that or any other case. The existence of truly independent judiciaries is still a minority practice in the world, and it does no good to pretend otherwise.

President Biden does not need to go as far as the Trump administration, which imposed sanctions on ICC investigators who were looking into possible war crimes by U.S. military personnel in Afghanistan. But Washington should not consider becoming a member of the fatally flawed ICC or even facilitating its activities. Under no circumstances should it allow an American citizen to become subject to the ICC’s jurisdiction.

Exercising prudent discrimination regarding these second‐​tier issues may not be as essential as getting policy right on high‐​priority matters, but it’s still important. Some Trump policies deserve to be jettisoned, while others need to be preserved. Making those decisions wisely will help determine the quality of the Biden administration’s overall foreign policy.

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