Committee Reports

Statement in Opposition to Retaliatory Measures Against the ICC or its Personnel

REPORT

OPPOSITION TO RETALIATORY MEASURES AGAINST THE ICC OR ITS PERSONNEL

The New York City Bar Association (“City Bar”) opposes any efforts by the United States government to impose sanctions and other retaliatory measures on the International Criminal Court (“ICC” or “Court”) or any of its staff and personnel in the aftermath of Prosecutor Karim A.A. Khan’s request that arrest warrants be issued for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant.[1] The City Bar is also greatly concerned that the House of Representatives has passed legislation (H.R. 8282) that would impose such sanctions and visa restrictions on Court staff, judges, witnesses and others who provide support to the ICC.[2]  While we acknowledge the Biden administration’s recently stated position in opposition to the bill, and the administration’s stated commitment not to impose sanctions on the ICC,[3] we urge all members of the United States government to reject the bill and any other efforts to pursue sanctions or other retaliatory measures against the Court.[4]

The ICC and the individuals and professionals who support its work should not be penalized for undertaking their responsibilities in accordance with the Rome Statute, the Court’s founding treaty. The Court should be allowed to proceed as it has over the past 22 years, as an independent judicial institution committed to applying established international law.[5]

The City Bar has long supported and monitored the work of the ICC, including issuing a report in 2002 urging that the Court be established.[6]  We also have spoken out against imposition of sanctions against the ICC in other contexts.[7]  We note that the ICC began its investigation into the situation in Israel and Gaza pursuant to and in accordance with the Rome Statute.[8]  It is now up to the pre-trial chamber of the ICC to determine whether the standards for the issuance of arrest warrants have been met. The City Bar takes no position on the merits of any of the cases being investigated.

We believe any measures aimed at retaliating or punishing the Court and its personnel for doing their work in accordance with international law would undermine the framework of international justice and judicial independence that the United States has for decades worked to create.  Indeed, the United States has acknowledged the value of the ICC as an important part of international law and the international rules-based legal order as recently as last year, when Congress passed, and the President signed into law, amendments to the American Service Members Protection Act, enabling cooperation with the Court and the ICC Prosecutor in the investigation and prosecution of Russian war crimes in Ukraine.[9]  That cooperation is a clear acknowledgement by the United States of the usefulness of the ICC.[10]

Any effort to punish the ICC or its personnel undermines the core value of judicial independence and doing so here would undermine United States support for institutions that promote and maintain the rule of law.  Rather than impose sanctions or other punitive measures on the ICC or its personnel, Congress and the Biden Administration should continue the United States policy to support the ICC by allowing its proceedings to go forward in accordance with established international law standards and the ICC’s own procedures.

Council on International Affairs
Mark A. Meyer, Chair

International Human Rights Committee
Lauren Melkus, Chair

International Law Committee
Viktorija Pochtar, Chair

Task Force on the Independence of Lawyers and Judges
Christopher Pioch, Chair

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

June 2024                                                                                                               

Footnotes

[1] The Prosecutor also sought arrest warrants for Hamas leaders Yahya Sinwar, Muhammed Diab Ibrahim Al-Masri and Ismail Haniyeh.  ICC, “Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine,” May 20, 2024, https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arrest-warrants-situation-state (All websites last accessed on June 6, 2024).

[2] 118th Congress, 2d Session, H.R. 8282, passed by the House of Representatives on June 4, 2024, available at https://www.congress.gov/118/bills/hr8282/BILLS-118hr8282ih.pdf.

[3] Executive Office of the President, “Statement of Administration Policy,” May 30, 2024, https://www.whitehouse.gov/wp-content/uploads/2024/06/SAP-HR8282.pdf.

[4] Rabert Jimison, “House Votes to Impose Sanctions on I.C.C. Officials Over Israeli Prosecution,” N.Y. Times, June 4, 2024, https://www.nytimes.com/2024/06/04/us/politics/house-vote-icc-israel.html; 118th Congress, 2d Session, H.R. 8282, passed by the House of Representatives on June 4, 2024, available at https://www.congress.gov/118/bills/hr8282/BILLS-118hr8282ih.pdf.

[5] We note that on May 24, 2024 the International Court of Justice ordered Israel to halt its military operation in Rafah.  This letter is not directed toward that decision and focuses solely on the ICC.

[6] See. e.g., New York City Bar Association, “United States Support for the International Criminal Court,” April 5, 2023, https://www.nycbar.org/reports/united-states-support-for-the-international-criminal-court/?back=1; New York City Bar Association, “Statement Against U.S. Sanctions on Persons Working with or for the International Criminal Court, July, 2020, https://www.nycbar.org/reports/statement-opposing-u-s-sanctions-on-persons-working-with-or-for-the-international-criminal-court/?back=1 (hereinafter, New York City Bar 2020 Statement); New York City Bar Association, “Report on the Proposed International Criminal Court,” July 1, 2002, https://www.nycbar.org/reports/report-on-the-proposed-international-criminal-court/?back=1.  We also wrote on many occasions calling on the ICC Prosecutor to open investigations.  See, e.g., New York City Bar Association, “Letter to ICC Prosecutor Regarding Investigating Crimes Against Humanity in Nigeria, April 30, 2015, https://www.nycbar.org/reports/letter-to-icc-prosecutor-regaring-investigating-crimes-against-humanity-in-nigeria/?back=1.

[7] New York City Bar Association, “Letter Reaffirming Support for the International Criminal Court in Light of Recent Criticism of Current Investigations,” June 10, 2020, https://www.nycbar.org/wp-content/uploads/2023/05/2020723-ICCCongressCriticism.pdf.

[8] ICC, “State of Palestine: Situation in the State of Palestine,” https://www.icc-cpi.int/palestine.

[9] Consolidated Appropriations Act of 2023, sec. 7073.

[10] ICC, “Situation in Ukraine: ICC Issues Arrest Warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova,” March 17, 2023, https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-andSee New York City Bar Association, “United States Support for the International Criminal Court,” April 5, 2023, https://www.nycbar.org/reports/united-states-support-for-the-international-criminal-court/?back=1; New York City Bar Association, “Letter re: United States Assistance to the International Criminal Court for Russian War Crimes,” May 3, 2022, https://www.nycbar.org/reports/united-states-assistance-to-the-international-criminal-court-for-russian-war-crimes/?back=1.