A Test for the US Posture on the Int’l Criminal Court: “Safe Harbor” Licenses?

(Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)

A Sept. 2 U.S. sanctions announcement implicated two senior officials at the International Criminal Court (ICC): Fatou Bensouda (the Prosecutor) and Phakiso Mochochoko (the Head of the Jurisdiction, Complementarity and Cooperation Division), who was designated by virtue of his provision of material support to Bensouda. Notably, Bensouda’s Canadian chef de cabinet (who had previously been identified by name by Secretary of State Mike Pompeo in earlier remarks) and her Canadian Deputy escaped designation (maybe because Canada démarched the United States in support of its nationals?).

This marks the first use of the sanctions authorities threatened by the United States when it promulgated Executive Order (E.O.) 13928 in June. While technically imposed by the State Department, the measures that now apply to the two ICC officials are enforced by the Treasury Department’s Office of Foreign Assets Control (OFAC). The two officials now share the unenviable position of being on OFAC’s Specially Designated Nationals and Blocked Persons List (the “SDN List”). Pompeo also intimated that other individuals associated with the ICC have been subjected to visa restrictions.

As anticipated, the negative reactions have been swift and sharp, including from members of Congress (e.g., Representative Eliot L. Engel (D-NY) and Senator Patrick Leahy (D-VT)), the ICC itself, U.S. allies, the European Union, and non-governmental organizations (e.g., Physicians for Human Rights). Engel, who chairs the House Committee on Foreign Affairs, captured the overwhelming reaction:

This administration is determined to isolate the United States on the global stage, undermine our credibility, and sabotage the next administration’s ability to repair what it has broken over the last four years. This decision will do nothing to address problems at the ICC and may well end up ensnaring American citizens and undermining important efforts dealing with the Genocide in Myanmar, Venezuelan strongman Nicolás Maduro, and others.

As noted in an article released when the E.O. was promulgated, the impact of this move is potentially comprehensive with respect not just to the individuals specifically named but also potentially to the broader work of the ICC — including with respect to cases for which the United States has expressed support (such as regarding Sudan, Libya, the Rohingya in Burma, the Central African Republic, the Democratic Republic of Congo, the Lord’s Resistance Army, and others).

‘Civil Death’

The restrictions in place against these individuals implicate both their personal and professional capacities — that is, parties who must comply with U.S. sanctions (or who are nervous about the implications of not complying) must now be wary of providing “support” to designated individuals in their work both outside the Court (in their personal dealings) and inside the Court (with respect to providing them assistance on almost any matters in which they are involved). As such, it should come as no surprise that targets of U.S. sanctions have described their predicament as being subject to “civil death.”

Some understandably see this action as a broadside against the Court itself (and all that it stands for). That may be the case. But, if we take E.O. 13928 at its word, the Trump administration is principally concerned with the Court’s efforts to investigate and potentially prosecute matters associated with the Afghanistan and Israel/Palestine situations. However, these designations apply to all activities involving these two officials, regardless of the situation (or country) involved. Discussions with sanctions experts have revealed concrete ways that the impact of these designations can be cabined for this narrow purpose — if that is in fact the objective.

While interrogating the policy logic of this move (and the potential repercussions on the rule of law, U.S. alliances, the global system of atrocities prevention and response, etc.) is critical, sanctions experts stress that in the immediate term, the Treasury Department should consider a general license (or potentially specific licenses for particular people or entities) to cover at least the following: (a) all transactions necessary and ordinarily incident to allow U.S. persons — including natural persons and financial institutions under U.S. jurisdiction — to work with the sanctioned parties as related to cases not involving U.S. persons or persons from “allies of the United States” (that is, all situations except the Afghanistan and Israel/Palestine situations); and (b) all transactions necessary and ordinarily incident to allowing the United States to maintain its commitments under the U.N. Headquarters Treaty and other relevant legally binding obligations.

Safe Harbor

Such licenses, which will protect U.S. persons and entities against the civil or criminal enforcement of the sanctions, are routinely issued even in the most stringent sanctions programs to create a sort of “safe harbor” that enables U.S. policy interests to be met despite the existence of sanctions. While licenses can be issued quickly, they can also take some time, especially if they involve politically sensitive situations. Consequently, this regulatory solution may not be available in the near term to combat the likely chilling effect of these designations.

Moreover, non-U.S. persons or entities are not entitled to apply for specific licenses or rely on general licenses. Accordingly, the U.S. government should also urgently issue guidance to non-U.S. persons, including non-U.S. financial institutions. The guidance should make clear that they will not be viewed as providing “material support” to sanctioned persons to the extent that they engage in transactions associated with the ICC and organs of the ICC outside those that involve the investigation and potential prosecution of U.S. personnel or personnel from U.S. allies.

Whether the administration is willing to consider such measures will signal whether these sanctions are truly about trying to change the targets’ behavior with respect to the two situations of concern or just a mean-spirited exercise in ad hominem harassment and an effort to destroy the Court and the promise of justice for which it stands. Unfortunately, Pompeo’s remarks upon announcing the designation suggest the latter.

IMAGE: International Criminal Court Prosecutor Fatou Bensouda (L) shakes hands in an ICC courtroom in The Hague, The Netherlands, on July 8, 2019. ICC judges on July 8, 2019, convicted Congolese rebel warlord Bosco “Terminator” Ntaganda of war crimes, including directing gruesome massacres of civilians, rape and sexual slavery. (EVA PLEVIER/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).