Statement on Proposed Sanctions by the United States Government Against the ICC

Rule of Law Facts & Resources

REPORT

STATEMENT ON PROPOSED SANCTIONS BY THE UNITED STATES GOVERNMENT AGAINST THE INTERNATIONAL CRIMINAL COURT

The New York City Bar Association (“City Bar”) reiterates our opposition to 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. The ICC is a vital component of the system of international justice, one which the United States has supported and relied upon. Sanctions would gravely undermine the ability of the Court to deter, investigate, prosecute and achieve accountability for the most serious international crimes – war crimes, crimes against humanity and genocide. While the United States has not joined the 125 other countries that ratified the Rome Statute,[1] it actively participated in its drafting, signed the treaty, and has facilitated and sometimes actively supported the Court’s prosecution of mass atrocities, including those in Darfur, Libya, Democratic Republic of the Congo and Ukraine. The United States’ support for the ICC is consistent with our country’s longstanding commitment to upholding the rule of law, including through playing a pivotal role at the Nuremberg Tribunal and in advancing international justice mechanisms.

We last addressed this matter in June 2024 after ICC Prosecutor Karim A.A. Khan requested that arrest warrants be issued for two Israeli leaders and three Hamas leaders.[2] At that time, the 118th Congress was considering similar sanction legislation to that now before the 119^th Congress.[3] These warrants have now been issued. We noted in our previous report that 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.[4] We further noted we had previously spoken out against imposition of sanctions against the ICC in other contexts.[5]

The City Bar takes no position on the merits of any of the arrest warrants. Rather, we write because of the importance of this Court, and of the need to respect its independence and processes. The ICC is carefully structured with a rigorous process. Investigations can only be triggered under certain specified circumstances, with multiple levels of internal review and authorizations required.[6] The processes of the ICC afford those indicted ample opportunity to contest the charges. Any nation whose leaders are facing ICC prosecution may conduct its own domestic criminal investigation and avoid ICC prosecution under the principle of complementarity contained in the Rome Statute.

The recent Senate resolution supporting ICC investigation of war crimes and crimes against humanity committed by the Russian forces at President Putin’s direction noted the ICC:

[Is] an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists, by investigating and trying individuals charged “with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.” ^[7]

The ICC’s scope of work extends far beyond any single situation. It currently investigates and prosecutes crimes in numerous regions, including Ukraine, Sudan, and Venezuela. These efforts highlight its global commitment to justice for victims of crimes within its jurisdiction. The United States has supported ICC investigations in some instances, such as those concerning Russian war crimes in Ukraine, and has historically played a pivotal role in advancing international justice mechanisms. Consistency in supporting the ICC across all investigations, including the Middle East, is essential to reinforcing the credibility of international justice and the rule of law, and ensuring the effectiveness of a rules-based order.

The legislation passed by the House of Representatives and being considered by the Senate[8] would impose sanctions and visa restrictions on Court staff, judges, witnesses and others who provide support to the ICC, which effectively undermines the Court’s ability to function. Further legislation that might be introduced in the new Congress may impose even more draconian sanctions, and President-elect Trump, upon taking office, may seek to impose sanctions against the ICC by executive order as he did in his first term.

While there are appropriate opportunities for legitimate discussion of changes designed to make the ICC’s processes more efficient in administering international justice, we strongly adhere to settled international principles that 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.

We believe that any measures designed to retaliate against or punish the Court and its personnel for performing their duties in accordance with international law would undermine judicial independence and the integrity of the international justice system. Rather than impose sanctions or other punitive measures on the ICC or its personnel, Congress and the Executive should continue the United States policy of supporting the Court by allowing its proceedings to go forward in accordance with established international law standards and the ICC’s statutory procedures.

New York City Bar Association
Muhammad U. Faridi, President

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

Council on International Affairs                   
Margaret E. McGuinness, Chair

International Law Committee
Victoria Pochtar, Chair

International Human Rights Committee
Suchitra Vijayan, Chair

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

January 2025