Biden to review Trump’s sanctions against Hague criminal court prosecutor

Last US administration took exception to allegations of CIA torture in Afghanistan

Prosecutor Fatou Bensouda. Photograph: Peter de Jong/Pool/AFP via Getty

Human rights groups across the world have called on US president Joe Biden to reverse an order signed by his predecessor, Donald Trump, imposing sanctions on the prosecutor at the International Criminal Court (ICC) – sanctions they described as "a direct attack on the rule of international law".

In an open letter the International Federation of Human Rights (FIDH) and 56 of its member organisations said the sanctions were designed by the Trump White House specifically "to punish" the ICC for daring to investigate possible war crimes in Afghanistan.

The ICC investigation, overseen by prosecutor Fatou Bensouda, is to examine the alleged mass killing of civilians by the Taliban, as well as allegations of torture by Afghan government forces and by the United States, including the CIA, between 2003 and 2014.

Even more controversially, judges decided last March that the inquiry should include claims that CIA "black sites" were operated in Poland, Lithuania and Romania to which detainees were forcibly transferred – or "rendered" – for so-called enhanced interrogation.


It was the first decision in the ICC’s 19-year history to involve the United States, which is not a signatory to the Rome Statute, which established the court.

In response former US secretary of state Mike Pompeo accused the court of "infringing US national sovereignty" and of "illegitimate attempts to subject Americans to its jurisdiction", and warned that the result would be sanctions.

Trumpian sanctions

Those sanctions were contained in Mr Trump’s executive order 13928 of June 11th, 2020, which prevents Ms Bensouda and one her senior officials, Phakiso Mochochoko, head of the court’s jurisdiction division, from entering the country and threatens to freeze their assets.

It’s that order that human rights organisations now want to see thrown out by Mr Biden, describing it as part of “an aggressive campaign” against the court, and “an unprecedented attack” on its international obligation “to protect and implement core human rights”.

While Mr Biden’s foreign policy is expected to be more benign towards international organisations, it remains the case that the Afghanistan investigation is problematic for the new American administration too.

That being so, the state department promised this week to “thoroughly review” US sanctions against the ICC but remained distinctly cool towards the court.

"Much as we disagree with the ICC's actions relating to the Afghanistan and Israel/Palestine situations," it said, "the sanctions will be thoroughly reviewed as we determine our next steps."

In a coincidence of timing, Ms Bensouda’s term as ICC prosecutor ends in June, and the long-running process is under way to select a successor.

The final decision is due to be made by February 8th. Of the remaining contenders, two, including Irish lawyer Fergal Gaynor, have a clear lead.

Peter Cluskey

Peter Cluskey

Peter Cluskey is a journalist and broadcaster based in The Hague, where he covers Dutch news and politics plus the work of organisations such as the International Criminal Court