IBA condemns US President’s Executive Order authorising sanctions against International Criminal Court personnel

The International Bar Association (IBA) unequivocally condemns United States President Donald Trump’s issuance of an Executive Order authorising the US Secretary of State, Michael Pompeo, to block financial assets within the US jurisdiction of International Criminal Court’s (ICC) personnel, and suspend ICC staff, or any persons found to be cooperating with the institution, entry into the country. Visa sanctions have also been extended to the officials’ immediate family members. The order was announced on 11 June 2020 by US Press Secretary Kayleigh McEnany, who referred to the ICC’s work as ‘politically motivated’ and accused the Office of the Prosecutor (OTP) at the ICC of high-level corruption and misconduct.

IBA President, Horacio Bernardes Neto, stated: ‘The IBA is appalled by the United States Government’s continued campaign to intimidate ICC staff. These allegations of lack of judicial and prosecutorial independence are intended to distract from and undermine the ICC’s work to bring justice to victims. The unprecedented punitive application of sanctions on a legitimate judicial institution is a shameful move to undermine the Court’s authority and to obstruct its investigations. Instead of harassing ICC staff, the US should get its own house in order, by providing and demanding genuine accountability.’

The Executive Order declares a national emergency with respect to ICC investigations that could potentially implicate the US and its allies, such as Israel. On 5 March 2020, an Appeals Chamber authorised the ICC Prosecutor, Fatou Bensouda, to investigate the situation in Afghanistan, which would potentially lead to the prosecution of American armed forces and CIA personnel for war crimes committed in connection to the Afghan war. In addition, a Pre-Trial Chamber is currently considering whether the ICC has jurisdiction over crimes committed in the State of Palestine, with the Prosecutor finding in her preliminary examinations that crimes under the jurisdiction of the court were committed in Gaza, the West Bank and East Jerusalem by Israeli nationals.

Dr Mark Ellis, IBA Executive Director, stated: ‘The aggressive US campaign to obstruct the ICC’s work weakens the rule of law globally. It is extremely disheartening to see the US both abdicating its leadership on the rule of law, and seeking to undermine a legitimate judicial institution. States are already pushing back against this dangerous threat to international justice; they must continue to publicly reaffirm their support of the Court’s work and their commitment to cooperating with its investigations and cases.’

Ms McEnany’s press statement was followed by a joint briefing from the US Secretary of State, Michael Pompeo; Defense Secretary, Mark Esper; National Security Advisor, Robert O’Brien; and Attorney General, William Barr. Secretary Pompeo alleged that the ICC follows an ‘ideological crusade’ and ‘botched prosecutions’, and that the institution is a ‘kangaroo court’, a ‘mockery of due process’, ‘grossly ineffective and corrupt’, and arguably unable ‘to function at the most basic level’. Secretary Esper forcefully declared that no American personnel would ever appear before the ICC.

Kate Orlovsky, Director of the IBA International Criminal Court and International Criminal Law Programme stated: ‘The US statements wilfully misconstrue the jurisdiction and legitimacy of the ICC. The broad application of economic sanctions against any person deemed as a friend of the Court seeks to bully and harass ICC staff and other states. Now is the time for voices inside and outside of the US to speak up on behalf of the ICC and show their support.’

ENDS

Notes to the Editor

1. The International Bar Association’s International Criminal Court & International Criminal Law Programme (IBA’s ICC ICL Programme) monitors issues related to fairness and equality of arms at the ICC and other Hague-based war crimes tribunals and encourages the legal community to engage with the work of these Courts. The IBA's work includes thematic legal analysis of proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice.
2. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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