Trump goes nuclear against ICC

ICC - The Hague

Maureen Clare Murphy

The Electronic Intifada  /  September 4, 2020

The Trump administration in Washington has placed economic sanctions on the chief prosecutor of the International Criminal Court and another senior official at the Hague.

The move was announced on Wednesday by US Secretary of State Mike Pompeo, who said the US would “not tolerate [the court’s] illegitimate attempts to subject Americans to its jurisdiction.”

Pompeo’s announcement came shortly after returning from a trip to Israel, during which he boarded the first direct commercial flight between Tel Aviv and Sudan.

The US and Israel face investigations by the court for suspected war crimes in Afghanistan and the West Bank and Gaza Strip, respectively. The ICC’s probes, still in a preliminary stage, represent a challenge to the impunity of both states as well as a test of the credibility of the tribunal, which has so far only tried African nationals.

The US and Israel reject the application of court jurisdiction that could see the indictment of their nationals and have teamed up to thwart the ICC’s scrutiny.

The sanctions announced by Pompeo are by far the most severe measures taken thus far.

The US Treasury now lists prosecutor Fatou Bensouda and Phakiso Mochochoko, director of the court’s prosecution jurisdiction division, among its “specially designated nationals.”

By doing so, the Trump administration has put the court officials in the company of “terrorists and narcotics traffickers” or individuals and groups working on behalf of countries sanctioned by the US.

Attack on the rule of law

The ICC condemned the “coercive acts” targeting its personnel as an attack on the court and “the rule of law more generally.”

Human Rights Watch accused the Trump administration of attempting to “block justice for the world’s worst crimes.”

The sanctions will “seriously affect” Bensouda and Mochochoko, the New York-based group stated. They will lose access to assets in the US and be “cut off from commercial and financial dealings with ‘US persons,’ including banks and other companies.”

Human Rights Watch added that the sanctions will “also have a chilling effect” on banks and companies outside the US “who fear losing access themselves to the US banking system if they do not help the US to effectively export the sanctions measures.”

Amnesty International said that the move “penalizes not only the ICC, but civil society actors working for justice alongside the court worldwide.”

The sanctions on Bensouda and Mochochoko are extreme and unprecedented but not surprising.

In June, President Donald Trump issued an executive order that threatened to impose such measures against parties that cooperated with the court’s probes into the situation in Afghanistan.

The sweeping order declares that “any attempt by the ICC to investigate, arrest, detain, or prosecute” would constitute an “extraordinary threat to the national security and foreign policy of the US.”

The order includes in its declaration of “a national emergency” any investigation of “personnel of countries that are US allies and who are not parties to the [ICC’s] Rome Statute,” an oblique reference to Israel.

Amnesty International USA warned that the vague and broad language used in Trump’s executive order means that anyone cooperating with the court may find themselves “implicated.”

Senators Bernie Sanders and Patrick Leahy were among only a handful of members of Congress who spoke out against the sanctions against court officials:

Silence among the Trump administration’s usual critics in Congress is also not surprising. In May, a bipartisan grouping of members of Congress in both houses encouraged Pompeo in his efforts to thwart justice at the court by signing letters authored by the Israel lobby group AIPAC.

The European Union, whose cooperation or lack thereof will determine the success of the Trump administration’s sanctions, said it was “unwavering in its support” of the ICC.

UN Secretary-General António Guterres, who welcomed the normalization of relations between Israel and the United Arab Emirates last month, was more guarded. A spokesperson for Guterres’ office said they would “continue to closely follow developments on this matter.”

African nationals targeted

Others who closely observe developments concerning the court noted that the sanctions target the two African nationals among the five top figures in the ICC’s Office of the Prosecutor. The three non-Africans with top-level posts in that office were not designated by the US order.

Writing for the Just Security website, Haley S. Anderson states that the “relatively unknown Mochochoko” may have been designated because he has “allegedly supported the inquiry into potential US wrongdoing in Afghanistan.”

She adds that Mochochoko’s remit of jurisdiction, which the court exercises in Afghanistan, and which a panel of judges is currently considering in the case of Palestine, is the US’s “core objection to the Afghanistan investigation.”

The legal scholar Kevin Jon Heller told Al Jazeera that the US is hardly the first to object to its treatment by the ICC.

“The only real difference is that the US has the power to do this kind of overt action against the court in a way that most African states that feel unfairly targeted don’t,” he said.

He stated that there are diplomatic and court mechanisms that the US could pursue if it “took these allegations of torture by the CIA [in Afghanistan] seriously.”

In the case of both Israel and the US, credible investigations and prosecutions of alleged abuses by its forces would prevent any formal investigation at the ICC.

As a court of last resort, the ICC only exercises jurisdiction “where national legal systems fail to do so.”

Trump’s predecessor, Barack Obama, declined to prosecute the authors and executors of the Bush administration’s torture regimes in Afghanistan and beyond.

The US has chosen instead to “use the dominance of US financial markets,” as Anderson puts it, to undermine the court and consolidate its impunity – and that of Israel.

Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago