National security lawyers and law professors have sent a letter to the White House asking the president to rescind sanctions targeting International Criminal Court investigators. The president’s executive order was issued after the ICC authorized its chief prosecutor to investigate whether the U.S. committed war crimes in Afghanistan. The coalition of 174 legal experts say that the Trump administration’s response is “wrong in principle, contrary to American values, and prejudicial to U.S. national security.”
On June 11, President Donald Trump issued an executive order “on Blocking Property Of Certain Persons Associated With The International Criminal Court.” The order said, in relevant part:
I, DONALD J. TRUMP, President of the United States of America, find that the situation with respect to the International Criminal Court (ICC) and its illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest. These actions on the part of the ICC, in turn, threaten to infringe upon the sovereignty of the United States and impede the critical national security and foreign policy work of United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States. The United States is not a party to the Rome Statute, has never accepted ICC jurisdiction over its personnel, and has consistently rejected ICC assertions of jurisdiction over United States personnel. Furthermore, in 2002, the United States Congress enacted the American Service-Members’ Protection Act (22 U.S.C. 7421 et seq.) which rejected the ICC’s overbroad, non-consensual assertions of jurisdiction. The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives. The United States seeks to impose tangible and significant consequences on those responsible for the ICC’s transgressions, which may include the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members. The entry of such aliens into the United States would be detrimental to the interests of the United States and denying them entry will further demonstrate the resolve of the United States in opposing the ICC’s overreach by seeking to exercise jurisdiction over personnel of the United States and our allies, as well as personnel of countries that are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction.
I therefore determine that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.
Lawyers and law professors specializing in international law and national security have sent a letter to the White House, asking the president to rescind the executive order which “authorizes asset freezes and visa denials against ICC lawyers and officials who investigate U.S. personnel, including military and CIA personnel for alleged torture, rape, and other war crimes in Afghanistan, and relatedly at CIA “black sites” in Lithuania, Poland and Romania.”
“The undersigned have a diversity of views on the ICC and its Afghanistan investigation. However, we share the conviction that sanctioning ICC lawyers for carrying out their responsibilities to investigate atrocities is wrong in principle, contrary to American values, and prejudicial to U.S. national security,” the letter said. “U.S. sanctions have long been legitimately imposed on terrorists, international criminals, and gross violators of human rights. But targeting ICC lawyers – and in some cases their families – punishes the very people who investigate atrocities.”
“Seeking to intimidate investigators and punish prosecutors perverts the purpose and undermines the legitimacy of sanctions,” the undersigned continued.
Among the 174 signers was 100-year-old Ben Ferencz, the last living U.S. prosecutor of Nazis in Nuremberg. The list of names also included former U.S. war crimes Ambassadors and U.S. lawyers at international war crimes tribunals.
The letter said that sanctioning ICC lawyers for opening an investigation into alleged U.S. war crimes undermines American credibility on the world stage.
“The Afghanistan investigation is not a case of runaway prosecutors. Before opening a full investigation, the prosecutors sought and received authorization to proceed from a unanimous, five-judge appeals chamber of the ICC. Their investigation also addresses alleged war crimes and crimes against humanity by Taliban forces,” the signers said. “Sanctioning ICC lawyers is also contrary to our longstanding national commitment to human rights, the rule of law, and accountability for those who commit atrocities. To stand against atrocities, while simultaneously opposing investigations of those who allegedly commit them, strains credibility.”
The lawyers further proposed that the Trump administration, if truly concerned about an ICC jurisdictional incursion, could “invoke its right to investigate alleged war crimes itself.”
“Under the ICC Statute, that would bar ICC jurisdiction. This option remains open to the U.S. But rather than assert this unquestioned right, the President has chosen the alternative route of authorizing asset and visa sanctions on ICC lawyers,” the letter said.
In closing, the national security and international law experts said that the sanctions were both “ineffectual” and a dark example for “bloody” and “lawless” regimes around the world to follow.
“Finally, the sanctions are contrary to U.S. national interests. They will not succeed in blocking ICC investigations, which are undertaken by lawyers duty bound to carry out their responsibilities as prosecutors. Worse, the ineffectual sanctions mock our bipartisan commitment to human rights and the rule of law, alienate our allies, and encourage repressive regimes,” the letter concluded. “Bloody and lawless rulers can now be expected, not only to resist, but also to follow Washington’s example of threatening and punishing ICC lawyers simply for doing what most countries and nearly all democracies of the world ask of them – to pursue justice for genocide, war crimes and crimes against humanity.”
National security lawyer Mark Zaid, who in recent months represented the Ukraine whistleblower, was one of the signatories of the letter.
He told Law&Crime that he is “already representing two Americans who provide free legal assistance to the ICC” and “will be filing a lawsuit against the Trump Administration if it moves to enforce sanctions.”
Read the letter below:
[Image via Drew Angerer/Getty Images]
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