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United States sanctions ICC prosecutor investigating potential war crimes

On September 2, the United States designated the chief prosecutor from the International Criminal Court (ICC), as well as an ICC senior official, to the Specially Designated Nationals (SDN) and Blocked Persons List, the first exercise of sanctions under a June 11 executive order targeting the ICC due to its ongoing investigation of U.S. military actions in Afghanistan.

The newly designated ICC prosecutor, Fatou Bensouda, is a Gambian lawyer who had been tasked by the ICC to investigate whether war crimes were committed in Afghanistan by the Taliban, Afghan military, and U.S. forces. The other designated ICC official, Phakiso Mochokhoko, is a Lesotho national and head of the ICC’s Jurisdiction, Complementarity, and Cooperation Division.

SDN assets are blocked and U.S. persons are generally prohibited from dealing with them, which will effectively prevent Bensouda and Mochokhoko from accessing the U.S. financial system or engaging in U.S. dollar-denominated transactions. Individuals and entities that provide material assistance or support to SDNs could also risk U.S. sanctions exposure, which could have far-reaching consequences for the ongoing work of the ICC, the world’s only permanent international tribunal established to investigate and try genocide, war crimes, crimes against humanity and crimes of aggression.

Although the United States has not formally recognized the ICC’s jurisdiction and is not a party to its founding document, the Rome Statute, U.S. citizens can be subject to its jurisdiction if the ICC is investigating crimes in countries that have joined, including Afghanistan. These new U.S. sanctions could disrupt other ongoing ICC cases supported by the United States (including war crimes investigations in Sudan and Syria).

An SDN designation is a powerful tool that has historically been used by the United States, through the Office of Foreign Assets Control (OFAC), to target adversarial states (like Iran, Cuba, or North Korea) or specific threats (like terrorism, narcotics trafficking, human rights abuses, or the proliferation of nuclear weapons). The OFAC ICC sanctions represent a profound departure from international norms, and the latest effort by the Trump administration to undercut international institutions. In 2018, then-national security adviser John Bolton denounced the ICC as “illegitimate,” and Bensouda’s U.S. visa was revoked after she signaled her intention to pursue the Afghanistan war crimes investigation last year. In announcing the new sanctions Wednesday, Secretary Pompeo described the ICC as a “thoroughly broken and corrupted institution.” In addition to OFAC’s SDN designations, the State Department has restricted the issuance of visas for certain individuals involved in the ICC’s efforts to investigate U.S. personnel.

Sanctions have become an increasingly prominent part of U.S. foreign policy, and OFAC has designated a record number of persons to the SDN List under the Trump administration. Although some have suggested that the robust and unilateral use of OFAC sanctions will move the rest of the world away from the widespread use of the U.S. dollar as a global currency, it is unlikely that these ICC designations will be the turning point—particularly because China, the primary champion of a post-dollar world, is also uncomfortable with the ICC.

Given the European Union’s steadfast support for the ICC, the EU could expand its Blocking Statute (which prohibits compliance with OFAC embargoes on Iran and Cuba) to include the latest ICC sanctions.

Notably, the Trump administration’s June executive order targeting the ICC has provoked international outcry from U.S. allies, the American Bar Association, the International Bar Association, academics, non-government organizations, and former war crimes ambassadors.

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