Symposium on the ‘Legacy’ of the USA Sanctions against International Criminal Court Prosecutor Ms Fatou Bensouda and Mr Phakiso Mochochoko

[Sharon Nakandha is a Program Officer with the Africa Regional Office of the Open Society Foundations and Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg.]

In March 2020, following a decision of the Appeals Chamber of the International Criminal Court (ICC) which authorised the Prosecutor to open an investigation in Afghanistan, Mike Pompeo, then-Secretary of State of the United States of America (USA), delivered a scathing tongue-lashing of the ICC for what he called ‘inappropriate and unjust attempts to investigate or prosecute Americans’. He placed the blame squarely on three individuals: Sam Shoamanesh, the chef de cabinet to the ICC Prosecutor, Phakiso Mochochoko, the head of jurisdiction, complementarity and cooperation division and the Prosecutor herself, Fatou Bensouda. The USA’s contention with the ICC also stemmed from the Prosecutor’s intention to investigate international crimes allegedly committed in the State of Palestine, which potentially implicates citizens of Israel, a long-time ally of the USA.

Two months later, then-President of the USA Donald Trump issued Executive Order 13928, which sought to block the properties of certain persons associated with the ICC and to impose financial and travel restrictions. In  September 2020, out of the original list of three earlier identified by Pompeo, the administration only designated outgoing ICC Prosecutor Bensouda and her member of staff Mochochoko. The two effectively had a travel ban and financial restrictions with far-reaching consequences imposed on them.

In April 2021, the new President of the USA Joseph Biden revoked the sanctions against Bensouda and Mochochoko. This comes at a crucial moment for the Court. With Bensouda’s term coming to an end in June 2021, for the first time the Court will have a Prosecutor from the Western Europe and Other States block—British lawyer Karim Khan, elected by the Assembly of States Parties (ASP) in the first contested election in February 2021 just two months after the ASP elected six new judges. Perhaps emboldened by the USA’s confrontational intransigence, the United Kingdom, after a successful election season that saw its candidates elected as Judge and Prosecutor, is now publicly expressing opposition to the Palestine investigation. As the Office of the Prosecutor moves to investigate international crimes allegedly committed in Afghanistan, Palestine, Bangladesh/Myanmar, Georgia and possibly Ukraine, it is set on a collision course with more states, particularly those that wield significant international influence including within the United Nations Security Council which is tasked under the UN Charter with the maintenance of international peace and security. The USA has also now announced its planned withdrawal of troops from Afghanistan, a location where the ICC continues to investigate their alleged involvement in war crimes.

It is evident that the biggest threat to the ICC today stems not from en masse withdrawal that the Africa block has been threatening for a few years now, but from influential state parties and non-state parties who appear determined to stop at nothing to protect themselves from the Court’s jurisdiction. Executive Order 13928 and the resultant sanctions have provided a glimpse into what this determination may mean. The survival of the ICC going forward will therefore largely depend on how the Court and its staff assert their judicial independence and authority amidst significant resistance from ‘powerful’ state players. During the last session of the ASP, member states received the findings of an Independent Expert Review team tasked with identifying ways to strengthen the ICC and the Rome Statute system in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning. It is important to explore ways of addressing the threats faced by the ICC within the context of this review process.

We have invited a number of international criminal justice commentators to reflect on Executive Order 13928 and the legacy of the sanctions against Bensouda and Mochochoko. They explore the intricacies of national, regional and global power while at the same time reflecting on the future of the ICC and the international criminal justice field more broadly. The posts engage with various themes including:  the discriminatory nature of the sanctions and what this means for ‘less-powerful’ states and their nationals; the USA’s relationship with the ICC; the potential effect on the ICC’s investigations in Afghanistan and Palestine; and the international criminal justice narratives and metaphors brought to the fore by EO 13928 and the resultant sanctions.

We thank the contributors who, despite a global pandemic, have lent their time and knowledge to this symposium. We also thank OpinioJuris for hosting this symposium.