ICC Sanctions Symposium: The Unprecedented Attack Against the ICC Prosecutor–The Pitfalls of Being a National of a ‘Less-Powerful’ State

[Satang Nabaneh is a Post-Doctoral Fellow at the Centre for Human Rights, Faculty of Law, University of Pretoria, and the Founder and Executive Director of Law Hub Gambia. She currently pursues research interests including international human rights law and monitoring mechanisms, democratization in Africa, and Gambian constitutional law.]

On September 2, 2020, the Trump administration announced that the United States had designated the International Criminal Court (ICC) Prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division (JCCD), Phakiso Mochochoko, for sanctions. These actions are a backlash from the ICC’s investigations in Afghanistan and Palestine. President Biden on April 2, 2021, ended the sanctions and the visa restrictions, thereby rescinding Trump’s orders.

My reflection will focus on the pitfalls of such sanctions on individuals from ‘less-powerful’ states given the countries of origin of both Prosecutor Bensouda from The Gambia and Mr. Mochochoko from Lesotho. Bensouda was the main target of the sanctions given that she was granted approval in March 2020 by the Appeals Chamber of the ICC to investigate possible crimes committed in Afghanistan since May 2003. US forces are alleged to have ‘committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence’ in Afghanistan.

The Woman from The Gambia

I must confess that I have a shared history with Bensouda who was born in The Gambia like me. As a girl growing up in The Gambia, which is a male-dominated society, I had stood up against bullying in the community, fought against injustice in my school, and gave myself a voice on family matters to the extreme annoyance of the male members. As a result, from an early age, I wanted to be an advocate for women’s rights like Bensouda. I find myself, like the majority of women in Africa, in spaces where I continuously have to contend with gender challenges, stereotypes, prejudices, and discrimination. ‘A woman’s place is the home’ and ‘women cannot be leaders’ are two discriminatory statements, which pervaded my environment and which I had continually challenged. Our society and its gender system are deeply patriarchal illustrating how embedded restrictive gender norms define who gets into leadership positions. We share a mutual detestation for injustice, and love and belief in supranational organs and human rights bodies to ensure justice for victims of atrocities. She is a feminist and lawyer and an awe-inspiring role model for African women and girls. Bensouda’s leadership of the ICC is also premised and informed by her position as a woman from a small West African country. This insight is essential to how her commitment to ensuring justice for women can be seen in the strategic direction of the Court in challenging impunity for rape and sexual exploitation of women and children in war and conflict.

Business as Usual

Through Executive Order 13928 on ‘Blocking Property of Certain Persons Associated With The International Criminal Court’, U.S. officials added both Fatou Bensouda, and Phakiso Mochochoko to the Specially Designated Nationals and Blocked Persons List (SDNs). The assets of persons on the list are generally blocked and U.S. persons are generally prohibited from dealing with them. These sanctions came in the wake of the 2019 policy on visa restrictions for them and their immediate family members. The orders against these staff of the Court are an attack on the international justice system. Bensouda was acutely aware of the potential challenges, including political pressure, on her path as the prosecutor of war crimes, crimes against humanity, and genocide. In 2012, in responding to what kind of ICC she hoped to pass on at the end of her term, she stated: ‘We’ll prove that [the Court] is a truly independent judicial body. It won’t happen overnight. Our legal institution is going to continue to operate in a difficult political environment and attacks against it won’t subside.’

During the period when the sanctions were imposed on Bensouda, we saw the deafening silence of the African Union due in part to its turbulent relations with the Court. This is partly due to the primary focus of the Court on African conflicts and State-sponsored violence, which had angered African leaders who have accused the Court of bias against the continent. Despite earlier support by Africa of Bensouda’s election and the hope that it would have led to better relationships between the continent and the Court, Bensouda has been accused of being anti-African as the primary person responsible for investigating and prosecuting crimes. This criticism and hostility were spearheaded by her own country, where then-President Yayha Jammeh, in 2016, withdrew from the Rome Statute and left the ICC labeling it as the ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’. The country has since reversed its decision to withdraw from the ICC under President Barrow’s administration.

When the sanctions were announced, the Gambian Government under President Barrow expressed dismay noting that it constitutes ‘gross interference in the mandate, independence and impartiality of the Court in the fight against impunity for perpetrators of the most serious crimes of international concern’. While the Gambian civil society has generally been supportive of her, it has accused her of turning a blind eye to atrocities committed by Jammeh and lack of investigation to bring #JammehtoJustice. In 2020, Bensouda noted that she directed ‘ICC prosecutors to examine Jammeh’s record, but his actions were deemed to fall short of war crimes, genocide, or crimes against humanity that constitute an ICC case’. The operation of the Jammeh’s death squad, the ‘Junglers’, was only recently known. There has been a general curiosity as to whether she would be asked to testify before The Gambia’s Truth, Reconciliation, and Reparations Commission, given her experience as Jammeh’s Deputy Director of Prosecution in 1995 and former Minister of Justice from 1998-2000, and that she was adversely mentioned for corruption of justice.

Bullying Tactics

Trump’s administration tried to force the Court into submission by bullying Bensouda and Mochochoko with hegemonic tactics including sanctions. It is opined that these are bullying tactics on the Court’s staff who are from less powerful nations. As she has noted, ‘some believed that I should just stop there and let it go because it concerns a very powerful [state],’ but for her ‘it’s about the law. It’s not about power’. These sanctions also mean that in the future, nationals of less powerful States may not get the top and most strategic positions in the ICC for fear that more powerful nations could deny them necessary support or place obstacles before them in the execution of their mandate. Such effect can only further alienate less powerful nations from the international justice system and hence turn the ICC either into a moribund institution or place it completely in the hands of more powerful nations, or both. However, The Gambia’s recent campaign to protect the Rohingya from genocide, which led to provisional measures issued by the International Court of Justice (ICJ) that Myanmar must take immediate action to protect the Rohingya group, is a reminder that small countries matter. Despite their size, small countries like The Gambia and their nationals can play a major role in the international justice system.

At the heart of Trump’s actions against Bensouda is a rejection of the ‘international liberal order’. This was in line with his ‘America First’ agenda that placed national interests and values at the core of all his policies. His actions bolster the argument that the imperial nature of American foreign policy forms a part of it, illustrating the contradictory nature of their accountability stance. Starting from the Nuremberg trials, the American concept of accountability seems to revolve around victor’s justice without any genuine interest to submit themselves to the same standards they require of others. Besides, there are also contradictions in the USA’s dealings with the Court. For instance, the U.S. has voted in the Security Council to refer situations such as those in Libya to the ICC but does not want the ICC to investigate international crimes allegedly committed in states like Afghanistan that have exercised their sovereign right or prerogative to become parties to the Rome Statute. What this practically means is that the U.S. is de facto above international law and community.

Conclusion

That the complicated relationship between the U.S. and the ICC further deteriorated under the Trump administration, which was epitomized by open hostilities against the Prosecutor, is an example of how convenient it is for a powerful country to cast such nationals from less powerful states as ‘thorn-in-the-flesh’. The sanctions send one message to the rest of the world: the U.S. cares only about itself and its special interests. Moreover, the sanctions are a direct threat to international human rights and to the individuals who are tirelessly working to end impunity. The U.S. betrayed its legal and moral duty of holding perpetrators accountable. Consequently, Bensouda should not be faulted for picking a legitimate and necessary fight. The defiance of Bensouda to continue with the investigations sums up the temerity of a woman who detests injustice, bullying, arbitrariness and impunity. The commitment to justice, and accountability is what drives her.