By press briefing on September 2, 2020, U.S. Secretary of State Pompeo announced the imposition of sanctions against two International Criminal Court (ICC) officials—Prosecutor Fatou Bensounda and head of the Jurisdiction, Complementarity and Cooperation Division (JCCD), Phakiso Mochochoko. Pompeo also announced visa restrictions against unnamed ICC personnel. Many in the US had hoped that the Administration would not take steps to implement Executive Order 13928 issued June 11, 2020 by President Trump, which permitted the imposition of asset freezes and travel bans. (For a letter by 188 US lawyers and law professors opposed to the Executive Order, see this post.)
There are a host of problematic issues related to the implementation of sanctions; I will enumerate a few.
First, the Executive Order itself rests upon the fallacious premise that the International Criminal Court (ICC) presents “an unusual and extraordinary threat to the national security and foreign policy of the United States” and the US must address this threat because it presents a “national emergency.” (Executive Order.) Nothing could be further from the truth.
Second, to impose sanctions against court officials of a judicial institution basically treats ICC officials as akin to terrorists and drug traffickers. Not only is there absolutely no legal basis for the imposition of these sanctions, but these tactics place the US firmly on the side of impunity and opposed to the rule of law. (See my prior Opinio Juris blog post.)
United States Senator Patrick Leahy is right to tweet: “The Trump Administration’s announcement of sanctions against the ICC prosecutor exposes the fallacy of the White House’s professed commitment to the rule of law, and will further undermine U.S. leadership on international justice.”
Third, this whole sorry affair—which imposes serious consequences for the Prosecutor and Mr. Mochochoko—looks startlingly like offense against the administration of justice under Article 70 of the Rome Statute. Significantly, the European Union has called out the US for “attempt[ing] to obstruct the Court’s investigations and judicial proceedings.” Article 70 of the Rome Statute gives the ICC jurisdiction regarding offenses “against [the] administration of justice when committed intentionally,” including: . . .
d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;
e) Retaliating against an official of the Court on account of duties performed by that or another official[.]
Fourth, while the asset freezes appear to target only two individuals, the Executive Order is exceedingly overbroad, covering anyone who provides “services” (Sec. 3 (a)) or “material assistance” (Sec. 1(i)(C)) to the two covered individuals or efforts by the ICC “to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States,” or efforts by the ICC “to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government.” (Sec. 1(a)(i)(A)-(B).) This stands to have a profound impact on ICC operations. As Professor Megan Fairlie and I pointed out in a prior Opinio Juris post, much work at the ICC is not segregated by investigation, so if an IT service provider provides assistance to the ICC, who is to say whether some small measure of that assistance goes to the Afghanistan investigation, meaning the service provider could find its assets frozen. Individual vendors, ICC personnel, and NGOs engaged in ICC advocacy should not be placed in this precarious position. It is crucial for US allies who are States Parties to use their persuasive powers to convince the US Administration to reverse these sanctions.
Fifth, providing “funds” that further the Afghanistan investigation could potentially also be covered (Sec. 3 (a); Sec. 1(a)(i)(A)-(C) (covering the provision of “financial” “support” for efforts by the ICC “to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States”). The 123 States Parties who fund the ICC need to persuade the US to reverse the Executive Order before the budget negotiations set for the December 7-17, 2020 meetings of the ICC’s Assembly of States Parties. Their other option is to provide all requested funding to the ICC exceptfor funding to investigate US nationals—thereby assisting the US’s bid for impunity. And, they might also defund the Israel/Palestine preliminary examination, which, while not expressly mentioned in the Executive Order, also appears to be covered (see Sec. 1(a)(i)(B)) (including “any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government”)—meaning the provisions of funds that go towards that preliminary examination could also constitute a violation of the Executive Order (Sec. 1(a)(i)(C)). The absurdity of encompassing 123 States Parties if they fund the ICC’s 2021 budget not only demonstrates the Executive Order’s profound overbreadth but the urgent imperative of its reversal.
Finally a posting on Just Security is right to call out the US Administration as to those it has singled out to sanction. Not only is there no basis to believe the Prosecutor or Mr. Mochochoko actually work on the Afghanistan investigation, the Just Security blog points out the clear optics of imposing sanctions only against ICC officials from African countries. At a time when the US is undergoing hugely challenging issues in its own race relations, this choice seems hardly coincidental. Or perhaps the US did not want to antagonize countries such as Canada, Belgium, or Argentina (from which other senior ICC officials hail), but was fine doing so vis-à-vis The Gambia and Lesotho (from which the Prosecutor and Mr. Mochochoko hail).
Bully tactics are the hallmarks of dictators and a profound embarrassment to US citizens who support the rule of law and the International Criminal Court. Undermining a court designed to prosecute the gravest atrocity crimes of concern to the international community also does profound disserve to the victims of those crimes.
Jennifer Trahan, is Clinical Professor at NYU’s Center for Global Affairs and Director of their Concentration in International Law & Human Rights