5/28/24

Statement by the ABILA ICC Committee

On the Application for ICC Arrest Warrants in the “Situation in the State of Palestine”:

The United States must uphold international justice and respect the independence of the International Criminal Court

Ever since the October 7, 2023, attacks by Hamas and the Israeli response thereto, the conflict in Gaza has roiled the international community and deeply traumatized the people of Israel and Palestine. On May 20, 2024, ICC Prosecutor Karim A.A. Khan, K.C. announced that he was applying for arrest warrants against three Hamas leaders and two Israeli officials relating to the October 7, 2023, attacks and Israel’s response. While most States have welcomed the application, U.S. President Joe Biden has stated that it is “outrageous” to apply for arrest warrants and U.S. Secretary of State Anthony Blinken has suggested he will work with lawmakers on potential sanctions against the ICC’s “profoundly wrong-headed decision.” This response misses the mark and squanders an opportunity to bring about some accountability for victims of the atrocities committed during the conflict.

Palestine acceded to the Rome Statute on January 2, 2015, and on May 22, 2018, referred possible crimes within the ICC’s jurisdiction in Gaza, the West Bank, and East Jerusalem to the ICC Prosecutor. On February 5, 2021, Pre-Trial Chamber I found that the ICC had jurisdiction over “Gaza and the West Bank, including East Jerusalem.” This means that the ICC currently has jurisdiction over anyone who commits genocide, war crimes, or crimes against humanity in those areas and any crimes committed by Palestinian nationals outside those areas.

This Committee, which was founded in 1994, has not only been active in the creation and establishment of the International Criminal Court, but has not hesitated to speak out when the situation has warranted it, to support the Court’s independence.

In recent years the ICC has confronted opposition to the pursuit of justice, by States whose nationals are on the receiving end of ICC arrest warrants or investigations, and particularly from the United States. In response to the ICC’s investigation into alleged war crimes and crimes against humanity by U.S. forces in Afghanistan, members of Congress levied threats against the ICC and its personnel. In 2020, former President Donald Trump actually imposed sanctions against the ICC Prosecutor and a senior member of her staff. A public outcry ensued both in the United States (including by the ABILA ICC Committee, here and here) and abroad. Eventually, the sanctions were the subject of two lawsuits in the United States, one of which granted a temporary restraining order on the grounds that the sanction order was so sweeping in its provisions that its application was in likely violation of the First Amendment.

The sanctions were dropped during the Biden Administration and ultimately backfired; while they undeniably inconvenienced the ICC Prosecutor and interfered with the Court’s activity, the ICC’s staff were undaunted in their work and their reputation was strengthened, not diminished, as they continued to do their jobs despite U.S. pressure.

In 2021, both this Committee and ABILA’s former President spoke out against the sanctions imposed by President Trump and welcomed their rescission by President Joe Biden. When President Biden lifted the sanctions, he noted that “the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing” U.S. concerns with the Court.

Since that time, the United States has supported the Court, most fervently with respect to the Ukraine investigation and the warrants against Russian President Vladimir Putin and Ms. Maria Lvova-Bulova, as well as Sergei Ivanovich Kobylash, a Lieutenant General in the Russian Armed Forces, and Viktor Nikolayevich Sokolov, an Admiral in the Russian Navy. In the situation of Ukraine, the United States sees the work of the Court as supporting its national self-interest and has therefore constructively engaged with the Court. Congress made it easier for the United States to provide information to the ICC, and the President ordered those in the national security apparatus to fully cooperate with the Prosecutor. These measures recognized Prosecutor Khan’s independence and competence and acknowledged that the United States has the ability to play a positive role in international criminal justice even if it is not a State Party to the Rome Statute.

With respect to the Palestine situation, the threat of sanctions clearly has not daunted Prosecutor Khan, who has demonstrated both courage and independence. Prosecutor Khan and his team knew the risk of U.S. opposition and acted anyway, because the job that they accepted was to be independent and impartial in the pursuit of their mandate. As the Independent Panel of Experts that reviewed the evidence underlying the Prosecutor’s application recently wrote, there are reasonable grounds to support the allegations of war crimes and crimes against humanity in the proposed arrest warrants. Moreover, as they note, the law being applied is “humanity’s law, not the law of any given side,” which protects all the victims of this conflict and “all civilians in conflicts to come.”

Although the United States now objects to the possibility of ICC investigations in the situation relating to the State of Palestine, international justice is not a “pick and choose” system. The law must be applied impartially to all. The United States should not stand behind the Court when it issues warrants against Russian nationals, and then seek to retaliate against it for pursuing warrants in a situation where a U.S. ally is concerned. Nor is there any “moral equivalence” implied by the Prosecutor’s application to the Pre-Trial Chamber to issue warrants for individuals reasonably believed to have committed atrocity crimes. The Prosecutor’s decisions are guided solely by the evidence and the law and were themselves unanimously approved by outside experts.

The ABILA ICC Committee strongly urges U.S. President Joe Biden and the U.S. Congress to refrain from attempting to interfere with the ICC’s ongoing investigation in the Palestine situation and elsewhere. As General Wesley Clark (Ret.) wrote in his critique of the Trump-era sanctions, “The United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law.”

The United States must not be seen to be attempting to manipulate the rule of law to benefit itself or its allies. Experience has shown that this is not only wrong-headed, but unproductive. The ICC—an independent, permanent judicial institution with the mandate to pursue only the worst crimes of concern to the international community—must be able to do its work free from interference or political threats.

–ABILA ICC COMMITTEE[1]

Professor Patrick Keenan, co-chair

Professor Leila N. Sadat, past committee chair & past President of ABILA

Rebecca Shoot, advocacy director

Professor Jennifer Trahan, co-chair & a Vice President of ABILA

[1] This media statement reflects the views of the Committee on the International Criminal Court of the American Branch of the International Law Association but does not represent the official position of the American Branch as a whole. The committee consists of approximately one hundred and twenty-eight members. One member was unable to join this statement due to professional obligations.