Condemning Sanctions against Senior Staff of the International Criminal Court

In a statement issued today, the New York City Bar Association condemns the decision by the United States government to implement sanctions against Fatou Bensouda, the International Criminal Court (ICC)’s Prosecutor, and Phakiso Mochochoko, Director of the ICC’s Jurisdiction, Complementarity and Cooperation Division.

On September 2, in what the City Bar calls a “misguided decision,” the U.S. added Ms. Bensouda and Mr. Mochochoko to the Specially Designated Nationals and Blocked Persons List and restricted the issuance of visas to them and other ICC staff. The sanctions are pursuant to Executive Order 13928 (“EO 13928”), which was issued June 11, 2020, and is based on the assertion that the ICC, and its investigation into the situation in Afghanistan, poses an “unusual and extraordinary threat to the national security and foreign policy of the United States.”

The implementation of sanctions against specific senior staff of the ICC is “an abuse of executive authority, violates doctrines of United States domestic law, conflicts with the principles of international law and the United Nations Charter, hinders the work of the ICC and the United Nations, and is generally contrary to the interests of the United States,” the City Bar states.

Further, with the Treasury Department implementing regulations specifically prohibiting a person from transacting in “property” or “property interests” which are defined to include “services of any nature whatsoever,” the Executive Order is designed “to chill ongoing cooperation with the ICC,” the City Bar states. “Under these regulations, United States based lawyers and human rights defenders, for example, are prohibited from providing legal advice to the ICC regarding its investigations or casework unless the United States entity has first obtained a specific license to do so. This prohibition includes conducting legal research for the ICC, submitting amicus briefs with the ICC, or engaging in fact-finding on behalf of the ICC, which violates the First Amendment rights, including the right to free speech, of lawyers and human rights defenders actively engaged in advocating for the victims of genocide, war crimes, and other offenses. This also undermines the United States’ commitment to Due Process and the rule of law.”

Among other issues the City Bar cites, the impact of the sanctions against Ms. Bensouda, who serves as the ICC prosecutor, will also interfere with the proper functioning of the United Nations. “Specifically, under United Nations Security Council resolutions 1593 and 1970, the ICC prosecutor is invited to provide briefings every six months to the United Nations Security Council regarding the status of its investigations into the situations in Sudan and Libya,” the City Bar states. But the sanctions “include a ban from entering the United States, which would hinder the normal functioning of the United Nations Security Council.”

In sum, the statement issued by the City Bar, through its United Nations Committee, Task Force on the Independence of Lawyers and Judges, International Human Rights Committee, African Affairs Committee, and Council on International Affairs, “calls on the Executive Branch of the United States government to immediately remove sanctions imposed against Ms. Bensouda and Mr. Mochochoko, and to revoke EO 13928.”

The full statement is available here: https://bit.ly/3fOtOMG