June 2020, the United States imposed sanctions on Fatou Bensouda. Within weeks, Bensouda found that banks were closing her accounts and canceling her credit cards. Even her relatives had assets frozen as banks attempted to comply with rules set by the U.S. Treasury.
What was Bensouda’s alleged transgression? Was she a terrorist? A human rights abuser? A corrupt foreign official?
No, she was the chief prosecutor of the International Criminal Court. And the sanctions were placed on her for doing the job she was appointed to do.
The ICC sits in a grand building in The Hague, the administrative capital of the Netherlands. It is backed by 123 other nations, including U.S. allies all over the world. Bensouda’s office is designed to prosecute major crimes, including war crimes, when the national courts are unable, or unwilling, to do the job
But the poor relationship between the United States and the court goes back far further. The ICC was established by the Rome Statute, which was adopted by the United Nations in 1998. (Only seven countries voted against the treaty: Qatar, Yemen, Iraq, Israel, Libya, China and the United States.) President Bill Clinton later signed the agreement but never sent it for ratification in Congress, while successive U.S. administrations have essentially rejected the court’s jurisdiction.
Under President George W. Bush, the United States implemented a law that allowed the president to “use all means necessary and appropriate to bring about the release” of a U.S. or allied person detained or imprisoned by the ICC (this law was informally dubbed the “Hague Invasion Act”). The Obama administration made little formal policy change.
The key problem with the court, as made clear by successive administrations, is the idea that an international court could try U.S. citizens, including American soldiers. Bensouda, who had been in office since 2012, moved to open proceedings into war crimes in Afghanistan, the first investigation opened by the court that would involve U.S. troops. When the ICC approved the investigation in 2020, the United States responded with sanctions.
Relations improved from this nadir under the Biden administration, but it took months for the administration to remove sanctions on the court’s prosecutors.