Despite Trump sanctions, ICC staff and advocates vow to fight on

THE HAGUE – As U.S. President Donald Trump ratchets up pressure on the International Criminal Court, staff responsible for investigating the world’s worst crimes are finding ways to work around U.S. sanctions of the kind more usually imposed on officials from autocratic regimes and members of extremist organizations.

Trump sanctioned staff at the court after a panel of ICC judges in November issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant.

Judges issued the warrants after finding that there were “reasonable grounds to believe” that the pair may have committed war crimes by restricting humanitarian aid and intentionally targeting civilians in Israel’s offensive against Hamas in Gaza — charges Israeli officials deny.

Although prosecutors and judges involved in the investigation into Israel’s leaders have been singled out, the sanctions are hampering work on a broad array of investigations and threaten to undermine the entire institution.

Companies and individuals risk substantial fines and prison time if they provide a sanctioned person with “financial, material, or technological support.”

The devastating impact of sanctions

For Americans, the risks are especially great. They are more likely to have assets in the United States and to return to home to see family, putting them within the reach of the U.S. government. Without a special license from the U.S. Treasury Department, they would be unable to pursue their work and could even face prosecution.

The U.S.-based Association of International Criminal Law Prosecutors successfully negotiated with the Treasury for its members to be covered by an Office of Foreign Assets Control license, or OFAC, which allows individuals of any nationality to engage with sanctioned people or groups.

“The license is narrow and specific, but we were pleased Treasury agreed there was space for this kind of professional activity, even in a difficult climate,” the group’s president, Brenda Hollis, told The Associated Press.

Hollis, a former U.S. Air Force colonel, was a prosecutor at the ICC until earlier this year, overseeing its investigation into Ukraine.

Getting hit with sanctions can be devastating. The institution’s top prosecutor, Karim Khan, a British national, had his bank accounts closed, his visa for the United States revoked, and Microsoft even cancelled his ICC email address.

Getting the OFAC license was “a huge relief” for ICC prosecutor Eric Iverson, according to his lawyer Allison Miller. Earlier this year, before the association was set up, Iverson successfully sued the Trump administration so that he could continue his work investigating atrocities in Sudan.

Before getting the license, Iverson couldn't provide legal or investigation advice to his boss, Khan. According to Miller, Iverson could not carry out “basic lawyer functions.”

Iverson's lawsuit, and several others like it, “have only secured protection for those plaintiffs,” Hollis says. To get the same protections, every staff member would have had to launch their own individual lawsuit against the Trump administration.

ICC staff felt vulnerable

Hollis saw the need for a group to represent international prosecutors and set up the association in April. Her decision stemmed partially from her frustration with how the International Criminal Court handled the threat of sanctions under Khan, her former boss.

Neither Khan nor the court took “steps to insulate the prosecutor and other sanctioned persons from the rest of the staff,” Hollis said, pointing that the ICC did take such measures when Khan’s predecessor, Fatou Bensouda, was sanctioned by Trump during his first term.

When Bensouda was sanctioned, she shifted personnel management to other staff members to protect her subordinates and created barriers around American staff, who are more vulnerable to sanctions. After Khan was sanctioned, many but especially American staff felt as though their boss wasn't doing enough to shield them.

The institution has put in “a lot of effort” to “ensure the continuity” of investigations, according to spokesperson Fadi El Abdallah but he would not comment more specifically on the sanctions.

During a town hall meeting earlier this year, a staff member in the prosecutor's office asked the court would do anything to help American staff if they were arrested while traveling home. “No,” was the answer, according to multiple sources present, all of whom spoke on the condition of anonymity out of fear of retaliation.

Khan stepped down temporarily in May pending the outcome of an investigation into allegations of sexual misconduct.

Defiance in the face of pressure

A Treasury spokesperson who spoke on the condition of anonymity told AP that the Trump administration was committed to holding the ICC accountable for pursuing Israeli citizens. The spokesperson did not answer a question about why the department granted the OFAC license.

Yet after “back-and-forth” with Treasury, Hollis says, the organization was able to secure the needed license.

ICC staff members who work on the two investigations targeted by the Trump administration — Afghanistan and the Israel-Palestinian conflict — are not eligible for a license. Otherwise, membership is open to prosecutors and other prosecution staff at any international court, not just the ICC.

The group says it now has around 100 members and the majority are from the prosecutor's office at the ICC.

Others targeted by the Trump administration also remain defiant. “We will keep the fight till the last breath,” Raji Sourani, the director of the Palestinian Centre for Human Rights, told AP after emerging from a meeting with the ICC last week.

His organization, along with two other Palestinian organizations, Al Haq and the Al Mezan Center for Human Rights, was also subjected to sanctions for having “directly engaged in efforts by the International Criminal Court (ICC) to investigate, arrest, detain, or prosecute Israeli nationals,” Secretary of State Marco Rubio said.

Without accountability, Sourani says Gaza will become “the graveyard of international law.”