United States Support for the International Criminal Court

Re: United States Support for the International Criminal Court

Dear Mr. President:

We write on behalf of the New York City Bar Association to urge you to give full effect to the 2023 amendments to the American Service Members Protection Act (ASMPA) by extending the fullest United States assistance to the International Criminal Court (ICC) in connection with its investigation and prosecution of war crimes in Ukraine, including support for victims and witnesses. We believe that section 7073 of the 2023 Consolidated Appropriations Act effectively amended the ASMPA to authorize that cooperation. We also believe it is important for the United States to demonstrate its full commitment to the rule of law among nations and to the need for accountability under law of those responsible for war crimes and crimes against humanity on the scale now evident in Ukraine.

The 2023 amendments to the ASMPA remove any doubts as to the applicability of the so-called “Dodd Amendment” to the investigation of war crimes in Ukraine by the ICC prosecutor. Indeed, the recent issuance of arrest warrants for Russian President Vladimir Putin and children’s rights commissioner Maria Lvova-Belova makes clear the breadth of the ICC investigation into war crimes and crimes against humanity committed by Russia in Ukraine and demonstrates the Court’s need for the fullest possible assistance in connection with its investigation of those crimes. As noted below, such U.S. assistance does not imply any effect on the ICC’s own prosecutorial decisions.

Recent press reports indicate the broad recognition within your Administration of the need for, and benefits of, strong support for the ICC in its investigation and prosecution of war crimes and crimes against humanity in Ukraine. Nevertheless, reports indicate that the Department of Defense (DOD) continues, as it has previously, to express concerns that enhanced support for the ICC may in the future jeopardize U.S. service members serving abroad by exposing them to unjust or frivolous charges of war crimes by ICC prosecutors. While we recognize that the DOD’s concern is deeply held, we nevertheless believe that increased U.S. support for the ICC will not jeopardize U.S. service members.

There are multiple reasons why the DOD’s concern should not overcome the broader national interest in supporting the rule of law. The ICC is itself carefully structured to avoid frivolous or politically-motivated investigations or prosecutions, with multiple levels of internal review and authorizations required by the Court itself before an investigation can even begin or advance to prosecution. Moreover, because the ICC is designed to be complementary to, rather than supersede, national criminal justice systems, it has no jurisdiction over alleged crimes that are investigated or prosecuted domestically, as U.S. military and civil courts do under the Uniform Code of Military Justice and other applicable laws when U.S. service personnel are accused of the types of crimes addressed by the ICC. Beyond both of these jurisdictional limitations on ICC prosecutions, U.S. military doctrine, education and leadership have long emphasized the central importance of respect for the laws of war, including the Geneva Conventions, and has in practice required service members to abide by those obligations and sanctioned them when they failed to do so.

Supporting and assisting a Court that attempts to enforce these very standards against other nations’ leaders and military commanders should not, therefore, compromise any U.S. service members, who are prohibited by our own laws from committing war crimes and are subject to our own judicial sanctions if they violate those laws. Indeed, by making clear that we support the universal application of the laws of war and international humanitarian law through the ICC, the United States can begin to overcome the view, widespread within the international community, that we insist on different levels of accountability for U.S. and foreign nationals. While U.S. assistance to the ICC should not, and will not, affect that Court’s prosecutorial decisions, our ability to work effectively with other nations in seeking accountability for war crimes can only be enhanced when we honor that commitment.

Unfortunately, our nation has not always lived up to its own standards in this area. In particular, the failure to pursue domestic prosecution of those who authorized or directed torture and similar illegal activities during and after the 9/11 attacks on the World Trade Center or in connection with U.S. intelligence and military activities in Iraq or Afghanistan is a blot on our international reputation and has made it more difficult, even today, to avoid the charge of selective prosecution against foreign war criminals. Enhanced support for the ICC in accordance with the amended SMPA would help, in part, to advance our nation’s role in rebuilding the rule of law.  We urge you to act promptly to do so.

Respectfully submitted,

Susan J. Kohlmann
President, New York City Bar Association

Marcy L. Kahn
Chair, Task Force on the Rule of Law

Christopher Amore
Chair, Military and Veterans Affairs Committee

Mark A. Meyer
Chair, Council on International Affairs

Catherine E. Van Kampen
Co-Chair, United Nations Committee

Dr. Sophia Murashkovsky
Co-Chair, United Nations Committee

Ervin Nina
Co-Chair, United Nations Committee

CC:     

Hon. Lloyd J. Austin III, Secretary of Defense, U.S. Department of Defense

Albert T. Gombis, Director, Office of Global Criminal Justice

Members of the House Committee on Armed Services

Members of the Senate Committee on Armed Services

Members of the House Committee on Foreign Affairs

Members of the Senate Committee on Foreign Relations