International Criminal Court Prosecutor Fatou Bensouda banned from entering the US

Donald Trump’s America has made good on its threat, banning International Criminal Court (ICC) Prosecutor Fatou Bensouda from entering the country, as she investigates “American war crimes in Afghanistan”. But what is the backstory? reGina Jane Jere find out.

Carrying on the from where previous administrations left off, the Trump White House has been clear on where it stands on the ICC.  In a strong statement last September it was categorical stating: “we will use any means necessary to protect and defend our citizens, and those of our allies, from unjust prosecution by the ICC.

President Donald Trump himself is on record also stating in no uncertain terms: “America is a sovereign nation and our first priority is always the safety and security of our citizens.”

Back in November 2017, Bensouda, a Gambian appointed ICC Chief Prosecutor in June 2012, released a statement requesting for investigations to begin on  “war crimes” in Afghanistan. She indicated the investigation would focus not only on Afghan National Security Forces, the Taliban, and the Haqqani network, but also on war crimes allegedly committed by United States service members and intelligence professionals during the war in Afghanistan since May, 2003.

Listing a number of other crime she pointedly calls out the US in that statement saying the ICC had: “a reasonable basis to believe that the following categories of crimes within the Court’s jurisdiction have occurred…War crimes by members of the United States (“US”) armed forces on the territory of Afghanistan, and by members of the US Central Intelligence Agency (“CIA”) in secret detention facilities in Afghanistan and on the territory of other States Parties to the Rome Statute, principally in the period of 2003-2004.”

America First

In reaction, the Trump Administration issued a counter statement detailing the steps it would take if the ICC went ahead with the move.  And the administration did not hold back and announced it would negotiate “binding, bilateral agreements to prohibit nations from surrendering United States persons to the ICC; ban ICC judges and prosecutors from entering the United States; sanction their funds in the United States financial system, and, prosecute them in the United States criminal system.

America, the statement added further, would also consider taking steps in the UN Security Council to constrain “the Court’s sweeping powers, including to ensure that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute.”

“This Administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. As always, in every decision we make, we will put the interests of the American People first.” The statement emphasised.

In another a strongly worded press statement in September last year, the administration repeated its strong objection to what it called the “ICC’s flawed approach”. 

Since then, America’s view is grounded in what the White House further described as “ concerns over the broad, unaccountable powers granted to the ICC and its Chief Prosecutor” by the Rome Statute, “powers that posed a significant threat to United States sovereignty and our constitutional protections.”

Established in 2002, the ICC, is bound by a multilateral treaty known as the Rome Statute, to which member-states are voluntary signatories. The Office of the prosecutor is responsible for examining situations, under the jurisdiction of the Court, where genocide, crimes against humanity, war crimes and aggression appear to have been committed. But the Court has come under fire and is broadly derided in Africa, even perceived as racist, due its large emphasis on and targeting Africans only.

Although the US originally signed the Statute in 2000, the Senate failed to ratify it.  In May 2002, the then President George W. Bush authorized then-Under Secretary of State John Bolton to “unsign” it based on the United States’ view that the Court was fundamentally illegitimate.

The US is therefore not a party to the Rome Statute,  and has consistently voiced its strong objections to any assertion of ICC jurisdiction over American personnel.  Besides, the ICC’s Rome Statute cannot dispose of rights of the United States as a non-Party.