How did Fatou Bensouda and Phakiso Mochochoko recently get on the US Treasury Department’s sanctions list, along with the King of Drugs and War Criminals? Their violation is to work in the International Criminal Court (ICC) in The Hague: Bensuda is the chief prosecutor and Mochochoko is the head of the court.
Since its inception in 2002, the ICC has become known primarily for the prosecution of African war criminals. For example, in 2015, a court issued an arrest warrant for Ahmad al-Faqi al-Mahdi, an executor of Ansar Dine and al-Qaeda in the Islamic Maghreb, when in 201
The court record is far from perfect – too many criminals have escaped it, and the persecution has dragged on for too long. But at least he’s trying to hold some of the world’s worst human rights violators accountable. You would think that this would win the approval of the United States, the driving force behind the Universal Declaration of Human Rights of 1948. But you will be wrong. Trump and his secretary of state Mike Pompeo have chosen to take their position alongside prominent human rights violators such as Russia, China, North Korea and Sudan in opposition to the ICC.
It must be acknowledged that Washington has never been a full-back supporter of the ICC. President Bill Clinton authorized U.S. officials to sign the Rome Statute, which created the ICC, but President George W. Bush withdrew the U.S. signature in 2002, and Congress passed legislation requiring the cessation of U.S. aid to governments that might even consider handing over U.S. personnel to the ICC. Gathering the ICC’s knees was a special, special passion of John Bolton, Bush’s deputy secretary of state and UN ambassador and, more recently, Trump’s national security adviser. However, the United States is also cooperating with the ICC: the Bush administration has backed the UN Security Council’s decision to refer abuses in Darfur to the ICC, and the Obama administration has backed a referral to Libya. No previous administration has been as hostile to the ICC as this one.
In June, Trump declared a “national emergency” because the ICC had announced an investigation into possible war crimes committed in Afghanistan by the Taliban, the Afghan government and, yes, US military and intelligence officials. Kabul has asked the ICC to suspend its investigation pending judicial action by the Afghan authorities. Due to this request and the covid-19 pandemic, Human Rights Watch reports that the ICC is not actively investigating Afghanistan.
In short, there is no reason to assume, as Trump and Pompeo seem, that American personnel are about to be taken to The Hague – or, in the unlikely event that they end up on the dock, that they will fail to get a fair process. Last year alone, two prominent defendants – one of whom was the former president of Côte d’Ivoire – were acquitted of crimes against humanity.
The Trump administration is also outraged that the ICC is considering investigating possible war crimes committed in the Palestinian territories by Israel as well as its enemies. Earlier, however, the ICC refused to launch an investigation into the 2010 Israeli attack on a flotilla aimed at the Gaza Strip and did not announce a decision to prosecute Israel. So even this concern is premature at best.
The ICC is a court of last resort; acts only if the national authorities refuse to do so. In fact, Trump could blunt any impetus for ICC action by taking serious steps to investigate and punish U.S. personnel guilty of misconduct in Afghanistan. But by pardoning alleged war criminals, he is doing the opposite – sending an arrogant message of impunity for US misconduct.
Trump’s war against the ICC puts the Trump administration once again at odds with America’s closest allies. Sixty-seven countries – including Australia, Canada, France, Germany and the United Kingdom – condemned Trump’s sanctions and voiced support for the ICC. “We remain committed to an international order based on rules,” they wrote in June. “The ICC is an integral part of this order and a central institution in the fight against impunity and the pursuit of justice, which are key components of sustainable peace, security and reconciliation.”
The United States was also committed to a “rule-based international order.” No longer. Trump has turned America into a fraudulent regime that is hostile to laws and norms, whether at home or abroad.