ICC Sanctions Symposium: Implications of Trump Administration’s Sanctions on International Criminal Court Officials

[Stephen A. Lamony (LL.M) is an International Lawyer, Ex-Senior Foreign Policy Advisor, Ex-Senior United Nations Advocate for Africa-Amnesty International and Ex- Head of Advocacy and Policy, Coalition for the International Criminal Court.]

Introduction

The United States has long had the reputation as the world leader and has prided itself on leading the world in support of human rights. A longstanding stain on the United States’ record, however, has been its unwillingness to submit itself to the same international standards and principles it insists the rest of the world holds. This has been the case in international justice, where the United States was central to the creation of the International Criminal Court (ICC), but never became a party to the Rome Statute. 

The United States’ standing in the world was further called into question during the Trump administration. The Trump administration’s decision to sanction two African staff members at the ICC as opposed to all staff who are involved in efforts the US opposes not only doubled down on its clear disdain for international institutions, but also added further evidence to many people’s conclusions that its officials and policies were geared at US exceptionalism, if not racist. 

On April 1, 2021, the Biden Administration revoked Executive 13928 and overturned the sanctions. Secretary of State Tony Blinken has also issued a statement opposing the ICC’s investigation in the situation in Palestine. This statement raises questions about whether President Biden’s commitment to international justice will continue in past veins of American exceptionalism, even if it does not rise to the level of Trump’s total assault on the ICC.

Background

In September 2020, the Trump Administration levied sanctions against two staff members of the ICC pursuant to an executive order issued by President Trump. The world responded with outrage. The administration demonstrated clear disdain for accountability, but the two individuals chosen for sanctions were highly visible African staff members of the ICC. 

The sanctions came after a determination by the Court’s Office of the Prosecutor (OTP) that war crimes and crimes against humanity were committed in Afghanistan. In November 2017, the OTP filed a request with the Pre-Trial Chamber to open an investigation in Afghanistan, based on its determination that international crimes within the Court’s jurisdiction had occurred since May 2003. The OTP sought to investigate alleged crimes against humanity and war crimes (particularly torture and cruel treatment, outrages on personal dignity, and rape and other forms of sexual violence). The OTP believes that these crimes were committed on the territory of Afghanistan since 1 May 2003 by U.S. armed forces on the territory of Afghanistan and by members of the U.S. Central Intelligence Agency (CIA) in secret detention facilities in Afghanistan, and on the territory of other States Parties—namely Poland, Romania and Lithuania—since 1 July 2002 and principally in the period of 2003–2004.

The OTP submission highlighted that thus far, the United States has taken no meaningful domestic action to hold perpetrators accountable for alleged crimes committed in Afghanistan. In situations where some U.S. nationals have been prosecuted, the punishment has been a slap on the wrist. Those who faced some consequences were likely to be pardoned – President Trump pardoned four military contractors convicted for massacring Iraqis in Baghdad and he reversed the demotion of a Navy Seal who had been convicted of a minor crime.

Fergal Gaynor, Legal Representative for victims in Afghanistan, applauded the OTP’s request and noted that, ‘Not only the OTP, but all the 3 judges of the Pre-Trial Chamber and all 5 judges of the Appeals Chamber have come to the conclusion that the steps which have been taken by the U.S government to date to investigate and prosecute the crimes at issue have not been sufficient.’  

While the US objects to prosecutions of its citizens for the crimes described by the OTP, these crimes are seen as abhorrent and unacceptable in the US. US law prohibits the United States from torturing its citizens or sending its citizens to another country to be tortured. The United States is also a party to the Convention against Torture. The United States has also strongly condemned various forms of sexual violence, including rape, particularly in the context of armed conflict.

It is grossly inconsistent for the United States to object to an investigation of such crimes committed by its nationals when the ICC seeks to hold members of US armed forces and the CIA who engage in these acts accountable, particularly when that is only the case because the United States has failed to do so. 

Imposition and Choice of Those Subject to Sanctions

The Trump Administration responded to the OTP’s filing in the Afghanistan case by issuing sanctions against ICC officials, but only against two senior African lawyers working in the OTP. The United States issued economic sanctions against Gambian-born Fatou Bensouda, ICC Prosecutor and Phakiso Mochochoko, a Lesotho national, working as OTP’s Director of Jurisdiction Complementarity and Cooperation Division (JCCD). One suspected candidate for sanctions, a mid-level official in the OTP who is a Canadian national, was not included.  One academic and policy analyst in international justice, Mark Kersten, pointed out to me that, ‘Canada communicated that its citizens at the ICC should not be subject to US sanctions.’

One cannot be surprised, then, that the targeting of the two black African lawyers from The Gambia and Lesotho and exclusion of a Canadian national has created the perception among some that the U.S. government’s action is racist. This situation was described to me by one African activist as follows-

‘The decision is unfortunate on many levels, more so as it appears to mainly target two Africans in the OTP. It is my sincere hope that the Biden administration will reverse it, even as it seems to have dragged on longer than I expected. It is simply disgraceful; no one should be punished for seeking justice for victims of atrocity crimes. We should collectively call out the US administration.’

Kersten argued that, ‘The presidency of Donald Trump has been defined by the perpetuation and perpetration of systemic racism. Most observers focus on evidence of Trump’s racism within the domestic realm – and there is heaps of evidence to draw upon. Trump’s outright refusal to admonish the right-wing, racist activists in Kenosha, Wisconsin, whilst supporting the actions of police who brutalize racialized communities is just the most recent example of his disdain for social justice and its advocates. But more and more evidence makes clear that the racist lens through which the Trump administration views America is also true of how it views the world. Case in point: sanctions levied against African staff at the International Criminal Court (ICC).’      

I have worked on and followed the ICC since it initiated its first investigation in Africa in 2004. With the exception of treaty negotiation and immediate treaty signature, the US government has always demonstrated hostility towards the ICC, from withdrawing its signature to the statute to insisting on the so-called Bilateral Immunity Agreements to keeping its citizens beyond the reach of the ICC as soon as it was clear that American forces and officials could be subject to the court’s jurisdiction.

The second Bush administration and Obama administration were more pragmatic in their approach to the court but still failed to consider joining. The Trump administration’s sanctions were a renewed manifestation of American exceptionalism, but this time with far more overt animus and tinge of racism.

U.S.  sanctions against ICC officials have had a chilling effect throughout the Court and globally, as they potentially threaten to penalize anyone inside or outside the Court who provides ‘material support’ to the Prosecutor.   Marième Soumaré writes, ‘“They are worried,” said a European diplomatic representative working in The Hague. “They are afraid of the consequences of the sanctions, not just with regard to the bank accounts of the individuals targeted, but also concerning the Court’s suppliers and their service providers. The ICC’s very operation is currently under threat.”’ 

US Double Standards

Building an independent, impartial court was never going to be easy. If there is one thing that Court representatives, non-governmental organizations and African Union officials agreed on, it is that the greatest test of the OTP of the ICC would be when it opened investigations in Palestine or in situations involving citizens of the permanent members of the UN Security Council – China, France, United States, United Kingdom and Russia.

For a time, the ICC focused on going after rebels like Dominic Ongwen, Thomas Lubanga, Germain Katanga, Bosco Ntaganda, and Ahmad Al Faqi Al-Mahdi or after ex-senior government officials in African countries, like ex-President Laurent Gbagbo of Côte d’Ivoire and ex-President Muammar Gaddafi of Libya. These investigations and prosecutions drew praise from global powers, as they should have. Lengthy investigations brought about evidence of likely atrocity crimes committed at the direction and command of these individuals, which in some cases resulted in convictions.    

But many NGO representatives wanted to know why the OTP is only investigating African situations when there were clearly situations in Syria, Iraq or Afghanistan that should be examined. One of the responses from the OTP officials was that the OTP is guided by the Rome Statute, and that the OTP is ‘damned if we do, damned if we don’t’. 

Indeed, the court’s concentrated investigations on the African continent brought ire and criticism from African leaders, legal and political scholars, lawyers and NGOs. It even resulted in the withdrawal of Burundi from the jurisdiction of the Court. Meanwhile, its efforts to expand investigations, particularly where those investigations might involve crimes committed by citizens of countries not party to the Rome Statute due to them being implicated in crimes committed on ICC state party territories, namely the United States, have resulted in condemnation and censure by some of the world’s most powerful nations.

In recent times, the Court has expanded its investigations and is living up more to expectations. Global powers should praise this. Yet, the minute that Prosecutor Bensouda announced she was seeking an investigation into the situation in Afghanistan, the U.S. government was loud in its protest. John Bellinger, a former Legal Adviser to the State Department under the George Bush administration, condemned the sanctions and blamed Bensouda for her predicament, stating that,  ‘she can be faulted for picking an unnecessary fight’. It is pertinent to remember the Afghan victims who have gone to the ICC to cry out for justice in considering if this is a ‘necessary or unnecessary fight’.  Mustafa Sarwar writes: 

‘Impunity, weak institutions, and a lack of accountability have prompted more than 1 million Afghans to submit statements on alleged atrocities to the International Criminal Court (ICC), which is still weighing whether to initiate a war crimes investigation … In Afghanistan, tens of thousands of victims expect the ICC to probe grave rights abuses from a series of decades.’

Would the United States let the perpetrators of grave crimes against its citizens go unpunished? On the contrary, the U.S never stands by while its citizens are being killed, but relentlessly pursues those criminals with a view to capturing them so that they can face American justice. For example, in March 2020, the Trump administration launched a military operation which rescued a U.S. citizen who was tortured abroad. Why should they expect Afghan victims of grave crimes to seek any less?

The Way Forward

The Biden administration has entered office promising to ‘build back better’, regarding its alliance with nations and its place in the global community, and to make racial equity a central part of its policy. In order to do that, the administration revoked the Executive Order against the ICC and rescinded the Trump administration’s sanctions. U.S. non-profit organizations and advisers can support the ICC again. To continue to move forward, the Biden administration should develop a new strategy for engaging the ICC.

And if the US is so concerned about the prosecution of its nationals in a foreign court, it must investigate and prosecute individuals for grave crimes committed by its citizens. The administration must admit that to lead by example, the US cannot have double standards, where the government demands accountability from poor countries and says the same standards do not apply to U.S nationals. Only then can it improve relationships with the world’s foremost body for accountability for grave crimes and be seen as a true supporter of international justice.