The Trump administration has put Fatou Bensouda, Chief Prosecutor of the International Criminal Court and one of her top aids, on the sanctions list historically reserved for war criminals and international terrorists.
Speaking at the U.S. announcement, Barr said the Justice Department “has received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance” in the ICC prosecutor’s office. He provided no further details. He also said the court was being manipulated by Russia, but did not elaborate on how.
The Bensouda situation starts in 2019, when it was believed she would authorize an investigation into US war crimes in Afghanistan. Her US Visa was revoked in April ‘19. This action occurred less than a month after Secretary of State Mike Pompeo announced that, except to the extent otherwise required by the UN Headquarters Agreement, the United States would impose visa restrictions on “those individuals directly responsible for any ICC investigation of U.S. personnel.” This March, the US war crimes investigation was authorized.
In her preliminary investigation into the situation in Afghanistan, Bensouda had specifically listed war crimes by U.S. military and intelligence agencies as one of several categories of crimes that her office found reason to believe had occurred. The alleged crimes include those committed in Afghanistan, as well as those committed in other States Parties that have a nexus to the Afghan conflict: Poland, Romania, and Lithuania. These alleged acts were committed against suspected Taliban and Al Qaeda detainees, primarily during the period from 2003 to 2004.
So far, the U.S. government has argued that the ICC lacks jurisdiction over American
nationals because the United States is not a party to the Rome Statute. However,
pursuant to Article 12(2), the Court has jurisdiction over any crimes committed on the
territory of Afghanistan since May 1, 2003, regardless of nationality. According to the
former chief prosecutor of the ICC, a better argument might be based on the Status of
Forces Agreement (SOFA) between the United States and Afghanistan, which could
preclude the ICC from exercising jurisdiction over American nationals. However, such agreements do not extinguish a State Party’s plenary prescriptive jurisdiction.
The Trump administration’s stance towards the Court represents a marked shift from the policy of strategic collaboration that prevailed during the second half of the Bush administration and under President Obama. It harkens back to—and builds upon—the United States’ historical antagonism with the Court. Back in 2002, when the Court was founded, Congress passed the American Service-Members’ Protection Act (ASMPA), a bill designed to limit cooperation with the Court. Meanwhile, the Bush administration tried to isolate the Court and prevent it from acquiring further legitimacy by not only “unsigning” the Rome Statute, but also entering into more than one hundred bilateral immunity accords with States Parties. These “Article 98 agreements” were designed to exempt Americans from ICC jurisdiction. (The SOFA with Afghanistan is one such agreement.)
The ICC said in a statement the new measures “are another attempt to interfere with the Court’s judicial and prosecutorial independence and crucial work to address grave crimes of concern to the international community”.
Rights activists assailed Trump’s move. Andrea Prasow, the Washington director for Human Rights Watch, said the action “demonstrates contempt for the global rule of law” and represents a “blatant attempt at obstruction.”
This is not just an attack on the ICC; it’s an attack on all of international law. The move utterly delegitimizes targeted sanctions, one of our most powerful tools for punishing human rights abusers, war criminals, and others who violate international law.