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Illustration of the scales of justice replaced by two people shackled by their wrists and dangling in the air. © 2015 Brian Stauffer for Human Rights Watch

(Washington, DC) – The Trump administration’s unprecedented imposition of asset freezes on prosecutors at the International Criminal Court (ICC) shows an egregious disregard for victims of the world’s worst crimes, Human Rights Watch said today. On September 2, 2020, the administration announced that the United States had designated the ICC prosecutor, Fatou Bensouda, and the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division, Phakiso Mochochoko, for sanctions.

The US action gives effect to a sweeping executive order issued on June 11 by President Donald Trump, which declared a dubious national emergency and authorized asset freezes and family entry bans that could be imposed against certain ICC officials. The Trump administration had repeatedly threatened action to thwart ICC investigations in Afghanistan and Palestine into conduct by US and Israeli nationals, and revoked the ICC prosecutor’s US visa in 2019.

“The Trump administration’s perverse use of sanctions, devised for alleged terrorists and drug kingpins, against prosecutors seeking justice for grave international crimes, magnifies the failure of the US to prosecute torture,” said Richard Dicker, international justice director at Human Rights Watch. “The administration’s conjuring up a ‘national emergency’ to punish war crimes prosecutors shows utter disregard for the victims.”

The ICC is the permanent international court created to try people accused of genocide, war crimes, crimes against humanity, and the crime of aggression. Following the atrocities in Rwanda and in the former Yugoslavia in the mid-1990s, concerned governments set up the ICC to bring those responsible for serious international crimes, including senior officials, to justice. Currently, 123 countries have joined the court, nearly two-thirds the membership of the United Nations. The court has opened investigations into alleged atrocities in 12 countries, including Sudan, Myanmar, and Afghanistan.

In response to Trump’s executive order in June, 67 ICC member countries, including key US allies, issued a joint cross-regional statement expressing “unwavering support for the court as an independent and impartial judicial institution.” This was accompanied by statements from the European Union, the president of the ICC’s Assembly of States Parties, and nongovernmental organizations in the US and globally. ICC member countries have repeatedly affirmed their support for the court.

These sanctions seriously affect those targeted, who not only lose access to their assets in the US but are also cut off from commercial and financial dealings with “US persons,” including banks and other companies. US sanctions also have a chilling effect on non-US banks and other companies outside of US jurisdiction who fear losing access themselves to the US banking system if they do not help the US to effectively export the sanctions measures.

The June executive order is designed not only to intimidate court officials and staff involved in critical investigations of the court but also to chill broader cooperation with the ICC, Human Rights Watch said. The order authorizes sanctions against non-US persons who assist in investigations to which the US administration objects.

The US, which is not a member state of the court’s foundational Rome Statute, objects to ICC authority over nationals of non-member countries unless a UN Security Council resolution authorizes it. Afghanistan, however, is an ICC member country, which gives the court authority to investigate and prosecute crimes committed by anyone – regardless of nationality – on Afghan territory or otherwise connected to the conflict.

Significantly, the ICC is a court of last resort, stepping in only if national authorities do not conduct genuine domestic proceedings. The Afghan government has asked the ICC prosecutor to defer her investigation, asserting that Afghan authorities can conduct credible national proceedings, although the Afghan government has not demonstrated the capacity and willingness to do so. Senior-level US civilian and military officials who could bear responsibility for authorizing the well-documented torture and other ill-treatment of detainees in connection with the conflict in Afghanistan, or for failing to punish those who carried out abuses, have not been held to account before US courts.

Because the ICC prosecutor’s office is assessing Afghanistan’s request and because of restrictions related to the Covid-19 pandemic, the court is not currently conducting active investigative steps in the country.

“ICC members have banded together before to stand with victims and defend the court’s mandate from unprincipled attacks, including from the US,” Dicker said. “These governments should stand ready to do all it takes to ensure the ICC remains on course so that no one, even from the most powerful countries, is above the law.”

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