The Biden administration will revoke as early as this week President Trump’s sanctions against the International Criminal Court’s chief prosecutor Fatou Bensouda, Foreign Policy reported on Wednesday (Exclusive: Biden Plans to Repeal Trump-Era Sanctions on ICC). This will remove another source of friction between the US and its European allies, according to FP, which cites two sources familiar with the move.
According to FP, the Biden administration has been under enormous pressure since its January inauguration from human rights groups and European governments, which culminated in an open letter that was sent to the White House in February by more than 80 groups, calling the Trump sanctions a “betrayal of the US legacy in establishing institutions of international justice.”
Last September, Secretary of State Mike Pompeo announced the United States was imposing sanctions on Bensouda and one of her top aides. He accused the court of “illegitimate attempts to subject Americans to its jurisdiction.” He argued that since neither the United States nor Israel is a member of the International Criminal Court, they should not be subject to its actions.
In Executive Order 13928, issued on June 11, 2020, several months after the court’s judges authorized an investigation into alleged war crimes by US service members and intelligence officers, President Trump determined that “any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.”
The executive order followed an April 2019 decision to revoke a US travel visa for Fatou Bensouda, a Gambian lawyer who serves as the ICC chief prosecutor. The State Department later restricted issuing visas to any ICC staff involved in “efforts to investigate US personnel.”
According to Pompeo in September, he was taking “the next step because the ICC continues to target Americans, sadly.” The sanctions were a response to an ICC investigation of alleged war crimes by US soldiers in Afghanistan.
The sanctions include a freeze on assets held in the US, or subject to US law, belonging to Bensouda and Phakiso Mochochoko, the head of the ICC’s Jurisdiction, Complementarity and Cooperation Division. Pompeo also warned that “individuals and entities that continue to materially support those individuals risk exposure to sanctions as well.”
The Biden administration has to respond by April 5 to an October lawsuit by the Open Society’s Justice Initiative and four law professors who claim that the Trump executive order violates the constitution, especially freedom of speech. FP quotes James Goldston, a former ICC trial attorney who serves as executive director of the Open Societies Justice Initiative, who said, “The Trump executive order, an assault on the premier institution of international justice, is at odds with the Biden administration’s professed aim of reasserting America’s support for human rights in the world. It’s past time for the order to be rescinded.”
Despite the reported decision to remove the Trump sanctions, the Biden administration, like the Bush and Obama administrations, do not recognize the ICC’s jurisdiction over the US and Israel. Secretary of State Antony Blinken criticized the ICC’s decision to open an investigation into Israel’s alleged crimes in “Palestinian” areas. Blinken said, “The United States firmly opposes and is deeply disappointed by this decision. The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”
And what about the ICC’s investigation of American “war crimes?” In March 2020, the International Criminal Court ruled that its chief prosecutor could open an investigation into allegations of war crimes in Afghanistan including those that may have been committed by Americans.
It would be the first time the ICC designates US forces as defendants in a war-crimes prosecution, as part of its mission to seek justice for victims of war crimes, crimes against humanity, and genocide. Secretary Pompeo told reporters in Washington that the rulings were a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body.”
Prosecutor Bensouda said the court had enough information to prove that US forces had “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence” in Afghanistan in 2003 and 2004, and later in CIA black jails in Poland, Romania, and Lithuania. She said the investigation would also include allegations that the Afghan government forces tortured prisoners, including Taliban and anti-government groups.
Incidentally, even if the US is not a party to the Rome treaty that created the ICC, American citizens are under the court’s jurisdiction in countries that have joined the treaty, which includes Afghanistan, Lithuania, Poland, and Romania.
In the words of Oliver Hardy to Stan Laurel: “Well, here’s another nice mess you’ve gotten me into.”