ICC Sanctions Symposium: How Africa Denied Fatou Bensouda and Phakiso Mochochoko

[Chidi Anselm Odinkalu is Senior Manager for Africa with the Open Society Justice Initiative. He received his Ph.D. in law from the London School of Economics & Political Science and is a former Chair of Nigeria’s National Human Rights Commission.]

The invocation of sanctions against senior officials of the International Criminal Court (ICC) by the Trump administration in 2020, has been the subject of considerable examination and controversy rightfully directed at the actions of the US government. First, temporarily blocked by by a US District Judge and now revoked by the Biden administration, the focus on the actions of the Trump administration gave a free pass to the African Union and its member states, who requited the casual sovereign anarchism of the Trump administration with their own casual sovereign pussilanimity. This needs to be corrected.

Executive Order 13,928

In announcing the revocation of the sanctions, the Biden administration makes clear that it prefers engagement to the isolationism of its predecessor, arguing that while it continues to ‘disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations’, it believes that this disagreement is ‘better addressed through engagement’. The revocation of the sanctions is obviously welcome but it does not, however, preclude a consideration of the various issues raised thereby.

The stated reason for Executive Order 13,928, was the ‘illegitimate assertions of jurisdiction over personnel of the United States and its allies’. It empowered the Secretary of State, in consultation with the Attorney-General and the Treasury Secretary to designate foreign persons involved directly or in assisting the ICC investigations against US service personnel or service personnel of US allies, a short hand for the ICC’s Afghanistan and Palestine situations. On 2 September, 2020, then Secretary of State, Mike Pompeo, exercised this power to designate Prosecutor, Fatou Bensouda and Phakiso Mochochoko, head of the ICC’s Jurisdiction, Complementarity and Co-operation Division (JCCD), making them ineligible for entry clearance into the United States. The designation also froze any assets they may have had in the country and barred them from holding any assets in the US currency. The Trump administration equally threatened similar sanctions on anyone who had any contact or collaboration with them.

Executive Order 13,928 was an exclusively executive determination in which process neither the Court nor its affected personnel had any say. Its model of anarchic, sovereign vigilantism represents a genuine threat to multilateralism and to the international peace and security that it claimed to be defending.

The Designation of Fatou Bensouda and Phakiso Mochochoko

The designation of Fatou Bensouda and Phakiso Mochochoko could only be explained in terms of the combination of their skin pigments and their passports. Ms. Bensouda is a former Attorney-General of The Gambia. When she was elected prosecutor in 2011, Ms. Bensouda was ‘nominated and supported as the sole African candidate for election to the power by the African Union’. Mr. Mochochoko is a former senior diplomat from Lesotho.

A scan of the personnel of the Office of the Prosecutor, one of the three major organs of the ICC, would show that both Africans were by no means the only or obvious targets in the pecking order or potential hit-list. For instance, the Judge-President of the Court at the time, Chile Eboe-Osuji, who is also black, is a dual Canadian-Nigerian citizen. Deputy Prosecutor, James Stewart, is also a Caucasian Canadian. The designation of either would have been sure to spark a raucous diplomatic incident with the US’ northern neighbor, with guaranteed steps by Canada to assert diplomatic protection on behalf of its nationals. It seems clear the US did not have any stomach for such a spat, which could have detracted from its desire to focus its fire on the ICC. Moreover, they may have rightly calculated that African countries shared their antipathy towards the ICC, needed international assistance in the context of the COVID-19 pandemic and would not muster much of an initiative in defence of their nationals if targeted. In this assessment, they were to be proved accurate.

Africa’s Response: Lacking in Conviction

So, what did the African Union do when the government of the United States targeted African nationals and international civil servants who, from all the evidence, were victims of racially motivated sovereign lynching? As will be shown below, the response of Africa to the sanctions was shamefully half-hearted or completely lacking in both ideas and conviction.

Before the ASP in 2020, The Gambia had advertised their readiness to ‘stand in solidarity’ with Ms. Bensouda as prosecutor and to protect and defend her integrity. They should have spared themselves the trouble. Two days after the announcement of the designation, on 4 September, the government of The Gambia reportedly ‘called on’ the Trump administration to reverse the measures against Ms. Bensouda. Not much followed thereafter.

For their part, more than one week after the announcement of the sanctions, around 14 September 2020, the government of Lesotho issued an anodyne statement expressing ‘concern’ at the sanctions against Mr. Mochochoko, and lamely claiming that they had initiated ‘bilateral consultation with the government of the United States of America intended to secure an amicable solution to this issue’. Not much was heard thereafter about consultations (if any) until the outcome of the US elections more-or-less settled the matter.

The organs of the African Union did nothing, perhaps reflecting a cultivated antipathy towards the ICC at the highest levels of the organization. The fact that the issues involved impinged on the AU’s historic mission of resisting domination or racialism did not appear in any way to diminish or mitigate their negative animus towards the court nor give it inspiration as an advocate for something bigger than base score settling.

By contrast, France was more forthright, describing the sanctions as a ‘serious attack’ on the court, while the European Union called them ‘unacceptable’. Both explicitly pledged support to the court.

Apart from the perfunctory formalities by The Gambia and Lesotho, only 15 of the 33 African member states of the ICC joined 40 other states parties to the Rome Statute to sign up to a 2 November Statement committing them ‘to preserve its integrity and independence undeterred by any measures or threats against the Court, its officials and those cooperating with it’. The African countries were: Botswana, Burkina Faso, Côte d’Ivoire, Gabon, Gambia, Ghana, Lesotho, Malawi, Mali, Nigeria, Senegal, Sierra Leone, South Africa, Tunisia, Uganda. Not to put too fine a point on the matter, when the Trump administration persecuted her for doing exactly the job for which they put her forward for election, the African Union states, collectively and individually, denied Ms. Bensouda and team and failed in their obligations to them.

As a metric of support to the ICC, the response to the sanctions by the Trump administration against the court and its two senior-most African officials is very revealing. With 33 states parties, Africa has the largest membership in the Assembly of States Parties of the ICC. Yet, when it mattered most, this number could not be mustered to register any meaningful support to staff of the ICC persecuted by a non-state party for being African and for their work with the court. African countries have not merely been parsimonious with their co-operation towards the court. On this occasion, they also proved to be indifferent or disinterested advocates for its cause.

A Bigger Tragedy: Indifferent Sovereigns

The obligations of co-operation and advocacy, one explicit and the other implicit in the Rome Statute, are both treaty based. By contrast, the duty of a state to protect its citizens is itself foundational to sovereignty as the anchor of the international order. In its decision on the preliminary objections phase in the Case Concerning Ahmadou Sadio Dialo (Guinea v. Democratic Republic of the Congo), the International Court of Justice, recalling the draft Articles on Diplomatic Protection of the International Law Commission (ILC), affirmed that ‘diplomatic protection consists of the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility’.

The steps taken and authorized by the United States against Mr. Mochochoko and Ms. Bensouda did not pretend to be carried out under any multi-lateral authority or colour of international legality. Indeed, they were taken to spite multilateralism and a rule-constrained international order. A US Court found them to be wrongful under US law. While it is no doubt the sovereign prerogative of the United States to decide whom it admits into its territory and whom it excludes, it is also the case that the undisguisedly racist character of the sanctions almost assuredly violated the norm against racial discrimination in international law in their effect, if not in their character. The nature of this obligation and the resulting injury meant that African states did not merely have a moral obligation to take active steps to ensure their protection, they had a legal duty to do so.

The Gambia and Lesotho, the two states whose nationals were the subject of the measures by the Trump administration, failed to exercise their obligation of vigorous diplomatic protection. If African countries had lent or found common cause to denounce the sovereign lynching of these two Africans by the Trump administration, their voices would have resonated, especially at a time when the world was in a ferment over racial injustice arising from the wanton extra-judicial killing of George Floyd by a police in the US State of Minnesota.

Neither The Gambia nor Lesotho appeared to think it fit to involve the collective diplomatic muscle of the 33 African states parties to the Rome Statute or, in fact, the 55 member states of the African Union. Instead, they managed to mute their voices and avert their collective gaze, in the most irresponsible manner possible. In so doing, the continent didn’t merely abandon its citizens, it denied and ultimately failed them. In many ways, that is a bigger tragedy than the lawlessness of the measures by the Trump administration for while a subsequent administration has been able to correct the latter infraction, the consequences of the former are unlikely ever to be remedied.