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Pictured here: ICC Prosecutor Fatou Bensouda ©ICC-CPI

The Trump Administration Banned the ICC Prosecutor from Visiting the United States. Are UN Officials Next?

Mark Leon Goldberg

The prosecutor of the International Criminal Court is banned from the United States. Aside from official meetings at the United Nations, the State Department has placed visa restrictions on Fatou Bensouda, a Gambian woman who leads prosecutions of war criminals in the Hague-based court.

The visa-restrictions are ostensibly over a potential ICC investigation into war crimes in Afghanistan — an investigation, it should be noted, that has not actually be launched, and may not even happen.  But what is most significant about this move is that it reveals the extent to which the Trump administration is willing to punish and deter an international official from doing her job.  And this should be deeply concerning to officials at the UN in general, and to the UN High Commissioner for Human Rights in particular.

This move against the ICC needs to be understood in the context of John Bolton’s longstanding hostility to the Court

The ICC came into being in 2002. This was the same time that John Bolton — and ardent critic of the court — became an Undersecretary of State in the George W. Bush administration.  When George W. Bush came to office, the administration took a highly unusual step of “un-signing” the treaty that created the ICC. At the time, John Bolton called that the “happiest moment” in his life as a public servant.

But withdrawing from the ICC treaty was not the end of US involvement. Rather, Bolton lead an effort in the Bush administration to limit the court’s jurisdiction. He did this by strong-arming US allies to into signing a bi-lateral immunity agreement to theoretically prevent Americans from coming under the court’s jurisdiction. If those US allies refused to sign the agreement, certain forms of military aid would be cut off.

At the time, I reported that this drive lead to some unusual outcomes that seemed to distort US foreign policy priorities. For example, the country of Latvia had some aid suspended in 2003 while it simultaneously deployed troops to Iraq as part of the Bush administration’s “Coalition of the Willing.”

When Bolton left the Bush administration in 2006, US policy toward the court became less adversarial, a modus-vivendi was reached. When Bolton rejoined government last year as National Security Advisor the Trump administration’s stance to the ICC went from indifference to outright hostility. Bolton’s his first major public speech as National Security Advisor was a long broadside against the ICC. It is fair to deduce that the decision to ban the ICC’s prosecutor from the United States is Bolton’s doing.

This move against the ICC should be a warning to the UN

The ICC is not part of the United Nations. But the decision by the US government to issue visa restrictions on the head of a multi-lateral organization should be deeply concerning to many around the United Nations. Specifically, it may foreshadow how the Trump administration could approach relations with the UN High Commissioner for Human Rights, Michelle Bachelet.

In general, the Office of the High Commissioner for Human Rights is ecumenical in criticizing human rights violations around the world. This sometimes includes chiding the United States. Most administrations have been able to balance the occasional criticisms aimed at the United States with the value of having an office at the UN that supports human rights and rule of law more broadly. The Trump administration, on the other hand, has been unwilling to accept any criticism.

Behind the scenes, it is seeking to de-legitimize key functions of the Office of the High Commissioner for Human Rights by refusing to even communicate with officials from the Office of the High Commissioner for Human Rights. More publicly, Bolton is seeking to de-fund the entire human rights office.

Michel Bachelet and her office are clearly being targeted by the Trump administration in a way that is not dissimilar to the International Criminal Court. It is not outside the realm of possibility that the Trump administration may seek to do to Bachelet what they have just done to Bensouda. Should that happen, a key element of the world’s human rights architecture would be severely weakened.