City Bar Voices Opposition to Executive Order Authorizing Sanctions on Persons Working with or for the International Criminal Court

The New York City Bar Association has issued a statement denouncing a June 11 Executive Order from the Trump Administration that authorizes sanctions (including asset freezes and visa denials) against certain ICC staff and more broadly, and visa denials against the families of ICC staff. Calling the Executive Order an “attempt to use executive power to infringe upon the independence of a judicial institution [that] contravenes established principles of judicial independence both in the U.S. and around the world,” the statement urges “representatives of the U.S. Government to decline to designate anyone under it. The City Bar additionally urges the U.S. Congress to invoke legal means to block enforcement of the Executive Order.”

The Executive Order particularly targets ICC lawyers and officials involved in investigations of alleged war crimes by U.S. military and CIA personnel in Afghanistan and related CIA “black sites,” and ICC staff investigating acts by personnel of any country that is an ally of the United States without the consent of that country’s government. According to the statement, the Executive Order is an “unwarranted effort to undermine the work of the ICC by imposing sanctions of the type often used by the United States against terrorist organizations, drug traffickers, and certain state entities such as Cuba and Iran in an effort to affirmatively punish the ICC and its staff for performing their judicial functions.”

The Executive Order bases its provisions on a perceived national security threat from the activities of the Court, a foundation that the statement unequivocally dismisses: “The ICC has no independent enforcement power and relies upon state support and cooperation.” 

The statement details manifold flaws in the Executive Order, which “ignores the alignment of much of the ICC’s work with U.S.-avowed interests” and is “likely to have a chilling effect on those who would otherwise have a legitimate interest in ensuring that genocide, crimes against humanity, and war crimes are properly investigated and prosecuted.” It goes on to point to overly broad language in the Order, which threatens to sweep up even low-level staff such as translators and field staff, as well as others more broadly, and could even potentially “cover nationals of the ICC’s 123 States Parties who help to decide or play a role in securing the ICC’s budget.” The breadth of the language in the Order could even encompass U.S. nationals such as amicus curiae, Special Advisers to the ICC Prosecutor, and staff of U.S.-based NGOs. “The potential ramifications to counsel representing individuals before the ICC or participating in the ICC investigatory process undermine the independence of the legal profession,” the statement says.

In the eyes of the City Bar, as expressed in the statement, “the United States government is sending a clear message to those involved in any investigation of U.S. conduct that any attempt at uncovering the truth will be met with resistance, economic punishment, and being made a pariah in the U.S.…[This] is squarely at odds with our history as a nation that adheres to, and champions, the rule of law.“

The statement can be read online here: https://bit.ly/3feDpKC