U.S. Sanctions on the ICC Chief Prosecutor Undermine the Pursuit of Justice

by Ailih Weeldreyer, Office of Public Witness Fellow

During a 20th century filled with war and genocides, the United Nations created an international judicial system to hold states and individuals accountable. Within the commissioned framework, the International Criminal Court (ICC) was established as an impartial body to prosecute individuals who commit crimes against humanity, war crimes, genocide, and crimes of aggression. An international court to prosecute individuals for atrocious crimes is a necessary avenue to global peace, both as a symbol to those who would commit such crimes and as a mechanism of justice. Crimes against humanity, genocide, and any other violations of international laws meant to protect vulnerable people deserve to be elevated above national courts and given international attention, because these crimes must be firmly established as instances in which no country and its citizens, however powerful, can escape justice. Until all states welcome this worldview, perpetrators of heinous crimes against humanity will continue to live without fear of prosecution.  

Despite the United States’ involvement in creating the international judicial system, we continue to hold ourselves apart from it. The U.S. has neither signed nor ratified the Rome Statute, the guiding treaty for the ICC, and is therefore not a party to the Court. On September 2nd, Secretary of State Pompeo announced in a press conference that the United States would pursue sanctions on the International Criminal Court’s Chief Prosecutor, Fatou Bensouda, and Phasiko Mochochoko, the ICC’s Head of Jurisdiction, Complementarity, and Cooperation. The sanctions respond to Prosecutor Bensouda’s intention to investigate possible crimes against humanity and war crimes committed by U.S. citizens in Afghanistan. Pompeo called the Court a “thoroughly broken and corrupted institution,” though it is within its right to seek accountability. The condemnation of the ICC and use of sanctions to dissuade its investigation angered the international community, prompting many countries, including key U.S. allies, to reiterate their strong support for the Court in opposition to the U.S. position. Still, the U.S. views international charges against its citizens as a threat to national security, and the Trump administration is doing all it can to pressure the Court to halt its efforts. 

The sanctions placed on Chief Prosecutor Bensouda and Director Mochochoko have wide-reaching implications for those whose work concerns the ICC and for the health of the entire international justice system. The vague language of the executive order which enacts these sanctions makes it unclear whether the penalties might apply to academics and other civil society actors who deal closely with the ICC. To challenge the sanctions and clarify their scope, a lawsuit has been brought against the administration by the Open Society Justice Initiative (OSJI) and four law professors who work in international justice. The lawsuit claims that the executive order is unconstitutional, that it exceeds the boundaries of sanctions regulations, and that it violates the First Amendment rights of the plaintiffs. OSJI and the other plaintiffs hope to show the invalidity of the executive order and end the sanctions on Bensouda, Mochochoko, and any others who might fall under its scope.  

In addition to threatening the rights and work of U.S. citizens, U.S. efforts to undermine the ICC imperil the integrity of institutions meant to hold all international actors to the same standard. The ICC has jurisdiction over countries that agree to its authority, and the fact that world powers like the U.S. continue to hold themselves above international justice creates an imbalance within the system. The Court has come under criticism for only prosecuting individuals from the Global South, and this valid criticism reveals a clear imbalance in the Court’s prosecutions that will exist until powerful nations prioritize justice and peace over domination on the world stage.   

The PC(USA) has long expressed its strong support for the cause of international justice. After the signing of the Rome Statute, the General Assembly commended the United Nations on the creation of the ICC, affirming the necessity of an international body to hold perpetrators of grave crimes accountable. In the years since, the PC(USA) has reaffirmed the importance of the mission of the International Criminal Court and other international judicial bodies in creating a world where all individuals and nations are held to high standards of human rights, peace, and justice.