Revealed: Trump administration issued US visa for sanctioned ICC deputy prosecutor

The Trump administration issued a visa last month to the US-sanctioned deputy prosecutor of the International Criminal Court to allow her to deliver a briefing on Libya to the UN Security Council in New York, Middle East Eye can reveal.

Nazhat Shameem Khan, who is from Fiji, and her fellow deputy prosecutor Mame Mandiaye Niang, who is from Senegal, were hit with US sanctions in August.

This came after they took on the prosecutorial responsibilities of Karim Khan - the chief prosecutor who has been on leave since May pending the result of a UN investigation into sexual misconduct allegations against him, which he strenuously denies.

But although she remains sanctioned, Shameem Khan was given a visa specifically for the purpose of briefing the Security Council meeting on 25 November at the UN’s headquarters on “the situation in Libya”, the Office of the Prosecutor confirmed to MEE on Tuesday.

The previous ICC chief prosecutor, Fatouh Bensouda, was also permitted to enter the US in 2019 to address the Security Council on Libya - despite being sanctioned for investigating alleged war crimes by US forces in Afghanistan.

At the time, Bensouda explained she was permitted to "stay in New York - nowhere else", as required under the "host country agreement" between the UN and the US.

'This pressure, personal or institutional, has strengthened instead of weakened our conviction in the noble mission of this court'

- Mame Mandiaye Nian, ICC deputy prosecutor

The new revelation that the US gave Shameem Khan a visa comes as the court faces unprecedented pressure from the US.

There is widespread speculation that the Trump administration could follow through on a threat to sanction the ICC itself, a move which would risk threatening its ability to function.

The Trump administration has imposed sanctions on a number of ICC officials and accuses the court of “illegitimate actions” targeting the US and Israel.

In February the US announced financial and visa sanctions on Karim Khan over his pursuit of arrest warrants for Israeli leaders over war crimes charges. 

Then on 20 August the US imposed sanctions on the two deputy prosecutors and two ICC judges, accusing them of being instrumental in efforts to "investigate, arrest, detain or prosecute" American or Israeli officials.

This came shortly after MEE had reported that new arrest warrant applications against Israel's National Security Minister Itamar Ben Gvir and Finance Minister Bezalel Smotrich on charges of apartheid had been prepared by the chief prosecutor before he went on leave.

ICC sources told MEE that the two deputy prosecutors, Shameem Khan and Niang, had not filed the applications due to the threat of US sanctions.

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The US sanctions have frozen the assets of the ICC officials, blocked their access to much of the global financial system, including within Europe, and restricted their ability to travel to the US.

According to President Donald Trump’s original executive order in February, sanctions entail a ban on the officials entering the US “except where the Secretary of State determines that the entry of the person into the United States would not be contrary to the interests of the United States”.

This includes “when the Secretary of State so determines, based on a recommendation of the Attorney General, that the person’s entry would further important United States law enforcement objectives”.

MEE has asked the State Department for comment.

On 25 November Shameem Khan told UNSC members in New York that there “is a new momentum towards justice in Libya, and we now look towards the first trial to be held at the Court in this situation,” citing among other developments the arrest of Khaled Mohamed Ali El Hishri - accused of committing war crimes and crimes against humanity as an official in Libya’s Mitiga prison - in Germany in July.

El Hishri was “surrendered to the custody” of the ICC in The Hague on Monday.

Sanctions a 'personal challenge'

Shameem Khan told the UNSC meeting that “based on our common work, based on the mandate and support of this Council, there is now a brighter future for justice in Libya.”

On Monday, at a side event during the Assembly of State Parties (ASP) annual meeting in The Hague, Shameem Khan said the US sanctions were “regrettable. They have a small impact on our families and so on, but our work has gone on”.

She said that “the work has continued” on the office’s Palestine investigation, and that sanctions have “of course been a personal challenge”.

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“We do have measures to try and protect ourselves from sanctions. They wouldn't be effective if we shared them, but we will make a statement in due course,” she added.

Shameem Khan further said the court is seeking alternatives to its main cloud services provider, the US tech giant Microsoft.

“We are working very hard towards technological sovereignty,” she said.

“We will survive, and we will survive in a way that doesn’t let our stakeholders down.”

The crisis has overshadowed the plenary sessions and side events during the meeting of the ASP, which is made up of representatives from 125 countries that have ratified the ICC's founding Rome Statute.

“Nine elected officials, including six judges, have been designated for sanctions by the US alongside terrorists and drug traffickers,” ICC president Tomoko Akane told member states in the first plenary session.

“Their family lives have been unsettled, and their ability to conduct financial transactions disrupted, also in the territories of state parties, including in Europe.”

Niang, the other deputy prosecutor, said the sanctions are detrimental not only to the court’s ability to carry out its work but also to victims.

“If those who are pursuing justice are targets, victims themselves become under threat,” he said.

“This pressure, personal or institutional, has strengthened instead of weakened our conviction in the noble mission of this court.”