ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg.]

Those Sanctioned… and Those Not Sanctioned

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) as currently structured has five persons at the helm, the Prosecutor, Deputy Prosecutor and three division directors (investigations; jurisdiction, complementarity and cooperation (JCCD); and prosecutions). Two of these persons, the Prosecutor Ms Fatou Bensouda and Director of JCCD Mr Phakiso Mochochoko, are racialised as Black. They are also the only nationals of African states at the helm of the OTP, an organ of a Court with an overwhelming majority of its staff hailing from the 25 states that form the Western Europe and Other states Group (WEOG) and a minority from the other 98 state parties (Resolution ICC-ASP/18/26, paras. 11-21; Independent Expert Review Report, paras. 108, 138, 218). Ms Bensouda hails from The Gambia, while Mr Mochochoko hails from the Kingdom of Lesotho. They are also two of the most experienced lawyers within the OTP. Ms Bensouda has been at the OTP since August 2004 when she was elected as Deputy Prosecutor. Mr Mochochoko has been at the ICC since 2002 when he joined as part of the advance team to establish the ICC. The other OTP principals (Deputy Prosecutor James Stewart who is senior to Mr Mochochoko, Director of Investigations Division Michel de Smedt and Director of Prosecutions Division Fabricio Guariglia) are White men from Canada, Belgium and Argentina respectively.

On 11 June 2020, ostensibly apprehensive of the OTP’s expected investigation in Afghanistan potentially implicating nationals of the United States of America (USA) and its allies and the Taliban, then-USA President Donald Trump declared a national emergency and issued Executive Order 13928 which sought, inter alia, to block property in the USA of any person involved in the ICC’s investigation of USA personnel, deny entry to such persons to the USA and prohibit cooperation with such persons. Consequently, on 02 September 2020, acting on the basis of EO 13928, the Trump administration designated Ms Bensouda and Mr Mochochoko, effectively imposing a raft of sanctions on them including financial and travel restrictions. The Trump administration did not sanction the other three OTP principals.

Calling Out the Racism… or Not!

These sanctions were roundly condemned, and appropriately so (see compilation of some reactions here), by the international justice community including states, civil society and individual commentators. They were unprecedented, egregious and outrageous, in part because imposing sanctions on persons whose job it is to pursue accountability for international crimes was hitherto something that so-called liberal democracies did not do, even if they strongly oppose the ICC’s jurisdiction. However, amidst this outrage, one glaring fact about these sanctions was barely acknowledged, that is, that they were racist. Of course, the Trump administration had never been subtle about its racism in its domestic affairs and foreign relations, so it was not surprising that the administration singled out the two Black and African principals at the OTP.

That only very few of the reactions from the international justice community made reference to the fact that these sanctions were in fact racist (e.g here, here and here) is also not entirely surprising. That the substance and praxis of international law – and its various fragmentations including international criminal law – are steeped in discrimination, marginalisation and the preservation of racialised hegemonies is well-documented (e.g here, here, here, here, here, here, here, here, here, here, here, here). However, few practitioners care to acknowledge, much less engage in this conversation. For instance, the first ever attempt at independently and comprehensively reviewing the functioning of the ICC resulted in an impressive 348-page report in September 2020, but the review neither bothered to explore the existence, if at all, of racism at the ICC nor did it make any mention of racism. If the inappropriate public comments of a senior ICC judge are anything to go by, one shudders to imagine what attitudes are tolerated behind the public glare. Mere mention of racism elicits more discomfort and defensiveness than perhaps any other ill plaguing the ‘field’. The world of international criminal justice is very small, exclusionary and elitist. Perhaps this explains why some within it or those seeking entry into it would be invested in maintaining the status quo or in self-preservation. Consequently, there exists an unofficial pact of silence about racism in the ‘field’, in the false hope that the problem will somehow quietly slither away.

For the avoidance of doubt, the argument made here is not that the USA should have been an equal opportunity sanctioner and sanctioned all the OTP principals. Rather, it is to highlight the racist nature of these sanctions and to emphasise that failing to acknowledge this when discussing these sanctions misses a fundamental point of the danger this occurrence poses to the future engagement of the ‘subaltern’ (used here in the Spivak-ian sense) with the ICC. Even though EO 13928 has since been revoked and the sanctions against Ms Bensouda and Mr Mochochoko lifted (discussed below), their legacies will endure and will likely shape the relationship that nationals of ‘less-powerful’ states have with the ICC.

A bad precedent has been set that reinforces the warped sense of international criminal justice as a ‘field’ where one is free to operate (even pontificate) if they are White or are nationals of so-called Western states, but must toe the thin, narrow and precarious line of caution and subservience and be relegated to the margins if they are racialised as non-White or are nationals of states considered non-Western. International criminal justice remains one of the most paternalistically unrepresentative ‘branches’ of international law. That these sanctions were imposed in the first place and that they remained in place for so long have changed how the ‘subaltern’ will henceforth interact with international criminal justice in general and the ICC in particular. For instance, those who desire to lend their skills, knowledge, expertise and time in service to international criminal justice will have to make pragmatic calculations depending on their racialisation and nationalities. Ultimately, the paternalism in and marginalisation of international criminal justice have found a good friend in EO 13928 and the sanctions and their enduring legacies.

While not all may be willing, for whatever reason, to acknowledge the racist nature of the sanctions and the racialised dynamics of their legacy, we may at least agree that these sanctions should never have been imposed in the first place. Sanctions in this context are a base, inelegant and extreme form of reactionary bullying and braggadocio not worthy of a state that proclaims itself a liberal democracy. To recall Wole Soyinka’s famous quip, ‘The duiker will not paint “duiker” on its beautiful back to proclaim its duikeritude; you’ll know it by its elegant leap’, or the more (in)famous variant of that quip, ‘A tiger does not proclaim its tigritude.’ One would imagine that a global power that never misses an opportunity to remind all of the strength and ability of its public institutions would have many respectable and elegant choices in its diplomatic and legal arsenal for negotiating its relationship with the ICC, including most desirably through ensuring domestic criminal accountability for war crimes allegedly committed by its nationals in Afghanistan.

Revocation of EO 13928, Undeserved Praise and Why It Is Too Soon to Celebrate

On 01 April 2020, President Biden revoked EO 13928 and effectively lifted the sanctions, just two days shy of the deadline when it would have had to file a response to domestic lawsuits filed in October 2020 and January 2021 challenging EO 13928. The Biden administration got lots of praise from the international justice community for this action. This praise is undeserved and premature because, to quote Malcolm X, ‘If you stick a knife in my back nine inches and pull it out six inches, there’s no progress. If you pull it all the way out, that is not progress. The progress is healing the wound that the blow made.’ Removing sanctions that should never have been imposed in the first place is not progress; it is not praiseworthy. As I have argued elsewhere, the bar for international criminal justice good manners is not so low as to require fawning praise of the Biden administration for revoking EO 13928 and lifting sanctions against Ms Bensouda and Mr Mochochoko. If any praise should be due, it should be because of how the USA handles its relationship with the ICC going forward. As Dianne Marie Amann argued shortly after EO 13928 was revoked, ‘[E]ven as today’s recission allows resumed assistance to the ICC, the administration’s action also must spur an overt commitment that U.S.-ICC disputes will be resolved by constructive, respectful means … [and] that never again will the United States, nor any other country, deem it a permissible policy option.’ This is an optimism I share, albeit cautiously for the reasons that follow.

Because of EO 13928 and the sanctions against Ms Bensouda and Mr Mochochoko, the USA-ICC relationship has crossed the Rubicon, from the realm of the uncertain to that of the precarious. Early indications of the future can be gleaned from the 01 April 2021 Executive Order revoking EO 13928, President Biden’s 02 April 2021 letter to Congress on the revocation and the 02 April 2021 statement by Secretary Blinken announcing the revocation.

The 01 April 2021 Executive Order and President Biden’s letter assert that, ‘[T]he United States continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the United States and its allies absent their consent or referral by the United Nations Security Council and will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction.’ This position is reiterated in Blinken’s statement which states that the USA ‘continue[s] to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations … [and] the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel’. If these pronouncements are anything to go by, the USA’s intransigent stance on the ICC exercising jurisdiction over its nationals and Israeli nationals is unlikely to change. True to its selective form, the USA has not expressed similar reservation about the ICC exercising jurisdiction over nationals of other non-party states such as Russia and Myanmar. The Prosecutor is currently conducting an investigation in Georgia which potentially implicates members of the Russian armed forces, and in Bangladesh which potentially implicates nationals of Myanmar for crimes allegedly committed against the Rohingya community. The Prosecutor has also announced her intention to seek authorisation from the Pre-Trial Chamber to commence an investigation in Ukraine, potentially implicating nationals of Russia.

Blinken’s statement ended with a rather curious sentence: ‘We are encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. We think this reform is a worthwhile effort.’ This is a not-so-subtle indication by the USA that it considers the reforms proposed by the IER as an avenue to curtail the ICC’s jurisdiction over nationals of some non-party states. It is, to say the least, very disturbing. The IER process was never intended to curtail the ICC’s powers, and any attempts to pervert the process to serve such ends should be resisted.

Opposition to the ICC’s exercise of jurisdiction over nationals of the USA and Israel is perhaps one of the few issues where the USA political establishment – Democrat and Republican alike – easily finds common ground. Administrations have oscillated between hostility and cautious engagement with the ICC, but the sanctions line had not before been crossed. Now it has. As the OTP’s investigations in Afghanistan and the State of Palestine take form following the March 2020 authorisation by the Appeals Chamber and February 2021 confirmation of jurisdiction by the Pre-Trial Chamber respectively, the USA’s reaction going forward may not be easy to predict.

What Then?

It is unlikely that Biden’s administration will resurrect EO 13928 or issue anything similar. However, even if sanity prevails for now, the fact that sanctions are a live possibility is likely to remain a dark cloud hanging over the ICC’s head. Who is to say that a less-diplomatic post-Biden administration may not feel inclined to act in similar fashion emboldened by the precedent of EO 13928, or even feel bold and reckless enough to go to the extremes of invoking the American Service-Members’ Protection Act of 2002 (colloquially referred to as The Hague Invasion Act) which authorises the President of the USA to ‘use all means necessary and appropriate to bring about the release of [USA personnel or officials] being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court’ (Sec. 2008)? If four years of a Trump presidency has taught the world anything, it is that nothing is beyond the realms of possibility when it comes to USA foreign policy. The door to the dystopian world of sanctions against international criminal lawyers has been opened, and there is no telling what other restless monsters reside in that world. I fully identify with Amann’s call for ‘constructive, respectful’ approach to USA-ICC relationship and I hope for cooler heads to prevail. In the meantime, however, I will temper my enthusiasm and manage my expectations.