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Can ICC chief prosecutor Bensouda hit back at President Trump?

By Marième Soumaré
Posted on Friday, 18 September 2020 16:48

fatou bensouda
Fatou Bensouda, centre, attends the first audience with the chief of Central African Republic's soccer federation Patrice-Edouard Ngaissona at the International Criminal Court (ICC) in The Hague, the Netherlands, Friday, Jan. 25, 2019. (Koen Van Well/Pool photo via AP)

A climate of fear reigns in The Hague following Washington’s move to blacklist the ICC prosecutor in response to the institution’s opening of an inquiry into war crimes and crimes against humanity committed in Afghanistan. What action can the Court take against US sanctions?

The threat had been looming for several months, but the axe finally fell on Wednesday, 2 September.

During a press conference, US Secretary of State Mike Pompeo announced that two members of the International Criminal Court (ICC) would be put on a “specially designated nationals” list alongside terrorists and narcotics traffickers: Gambian-born chief prosecutor, Fatou Bensouda, and Phakiso Mochochoko, a Lesotho national serving as the ICC’s director of jurisdiction, complementary and cooperation division.

Phakiso Mochochoko, the ICC’s Director of the Jurisdiction, Complementary and Cooperation Division, at the UN on 17 October 2012. (Rick Bajornas/UN Photo)

“We cannot, we will not, stand by as our people are threatened by a kangaroo court,” said Mike Pompeo. What sparked the United States’ ire was that Bensouda had given the green light for the ICC to open an investigation into war crimes and crimes against humanity committed in Afghanistan – one that had the potential to implicate US military personnel.

On 11 June, President Donald Trump signed an executive order imposing sanctions, effectively declaring an all-out war with the Hague-based court, which include a freeze on the US assets of Bensouda and Mochochoko and bans them from travelling to the United States.

‘Afraid of the consequences’

While some observers have deemed the Trump administration’s offensive targeting the two Africans as “racist”, the announcement set off an uproar at the prosecutor’s office.

In a statement released the following day, the ICC denounced the “unprecedented and serious attacks directed at an international judicial institution” and reaffirmed its independence and impartiality.

What room for manoeuvre do Bensouda and her team actually have? The prosecutor is open about her concerns. “It’s a complicated matter, but we need to do everything in our power to fight back,” said a person close to Bensouda.

READ MORE ICC: Member states unimpressed with candidates shortlisted to replace Bensouda

“They are worried,” said a European diplomatic representative working in The Hague. “They are afraid of the consequences of the sanctions, not just with regard to the bank accounts of the individuals targeted, but also concerning the Court’s suppliers and their service providers. The ICC’s very operation is currently under threat.”

In fact, the US measures may be expanded to include any person, whether an individual or entity, who assists the prosecutor’s office. “That opens the door to a great deal of sanctions,” said a representative of a Hague-based international human rights group.

In search of support

While publicly discreet, behind the scenes the Court is soliciting a response from the States Parties, enjoining their leaders to officially pledge their support. “In response to Trump’s executive order authorising the sanctions, 67 ICC member countries signed a joint statement condemning the decision.

This time, no joint statement was released, even though many countries formally expressed their support,” a human rights activist said. The African Union, for its part, has stayed silent. Could its muted reaction be explained by the turbulent relations the Court has with certain African countries?

READ MORE The ICC takes a big step forward with the conviction of DRC rebel Bosco Ntaganda

Nevertheless, the Court seems to be turning more towards the European Union than the African Union. As a matter of fact, the ICC is looking to be included in the EU “blocking statute”, which allows certain EU operators to be compensated for damages arising from US-imposed sanctions and protects such operators against their effects in the EU area. This tool was used in 2018 when US sanctions aimed at Iran also targeted a host of European companies.

This legal and political instrument could strengthen the Court’s legitimacy ahead of its appointment of a new prosecutor on 7 December. “The stakes of the upcoming election are high. It’s absolutely essential that the new prosecutor be capable of taking up a challenge, and that the Court as a whole bulk up in response to political pressure,” a diplomatic source said.

During an interview in 2012, when Bensouda was still just a candidate in the running for the top prosecutor job, she responded to a question about what kind of ICC she hoped to pass on at the end of her term as follows: “We’ll prove that [the Court] is a truly independent judicial body. It won’t happen overnight. Our legal institution is going to continue to operate in a difficult political environment and attacks against it won’t subside.”

READ MORE Will Bensouda’s successor bridge gap between Africa and the ICC?

Clear-headed about the magnitude of the task before her, perhaps she didn’t suspect that she would leave her successor with an institution weakened by unprecedented political pressure.

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