By: Sam Rouse, JD ’22
The American Bar Association hosted a live webinar on Sanctions against the ICC: Product of Isolationism or Defense of Sovereignty on August 7, 2020. The webinar was moderated by Agnieszka Gaertner and featured three experts in international law: Honorable Linda Strite Murnane, former Chief of the Court Management Services for the Special Tribunal For Lebanon and for the International Criminal Tribunal for the Former Yugoslavia; Professor Leila Nadya Sadat, Director of the Whitney R. Harris World Law Institute; Professor Douglass Cassel, Emeritus Professor of Law and Presidential Fellow Emeritus at Notre Dame Law School; and Kristin Smith, Director of the ABA’s Atrocity Crimes Initiative.
Kristin Smith opened the webinar by discussing the ABA’s work on the International Criminal Court (ICC). The ABA has long supported the ICC, having a leading role in establishing the court. After President Trump issued Executive Order 13928 on June 11, 2020, establishing sanctions against the ICC and its employees, in retaliation for the ICC’s Afghanistan investigation, the ABA released a statement noting that the United States is able to conduct its own investigation and preempt jurisdiction and renewed a call of the United States to do just that. On August 3, the delegates of the ABA adopted Resolution 114, urging all national governments to observe, respect, and protect the independence of the court, and condemning threats against the ICC.
The participants discussed the reasons behind the recent shift in the U.S. policy towards withdrawal from its international obligations. The Honorable Linda Strite Murnane argued that U.S. policy towards the ICC is a result of isolationism and defending sovereignty. Judge Murnane stated that the current administrations actions are a result of the United States being in a “defensive crouch,” due to its failure to adequately investigate its own citizens. Professor Leila Sadat referred to an essay by Tom Wright, who explained President Trump’s foreign policy had three core notions: (1) an opposition to traditional U.S. alliances; (2) a distrust of free trade; and (3) support for authoritarianism. These notions create a sharp and distinct break from previous administrations, favoring “bringing down the whole house” rather than merely changing it. Professor Douglass Cassel built on Professor Sadat’s point, emphasizing that although the United States has had a conflicted relationship with internationalism before, the U.S. has always acted in their own interests. The current policy is a distinct break, as it is no longer characterized by acting in their own interests.
Next, participants addressed the U.S. opposition to the ICC’s jurisdiction and whether or not this position is justified. Professor Sadat opened the discussion, noting that the U.S. objections to the ICC were not based in the law itself. Instead, their concerns were based in the possibility of politically motivated prosecutions of U.S. citizens. Other countries, such as Germany, Italy, and Thailand, insisted on avoiding the necessity of Security Council referrals and on mandatory jurisdiction, and it was this combination of elements that particularly motivated the United States. Judge Murnane contrasted the robustness of the U.S. judicial system against that of the ICC. The United States has the world’s largest, best-funded military with a viable judicial system. In contrast, the ICC system is weaker, as can be seen by the fact that while the ICC indicted al-Bashir and issued an arrest warrant, al-Bashir took over 170 international trips without being arrested. Instead of relying on the ICC, the United States should complete their preexisting international obligations to investigate and prosecute crimes. Professor Cassel elaborated on Judge Murnane’s point. The principle of complementarity means that the United States can avoid any ICC prosecution so long as they do their own investigations. Professor Cassel noted that in an ideal world and everything running successfully, the ICC would never have a case and, instead, investigations and prosecutions would be handled at the national level.
Finally, participants discussed Executive Order 13928 and asked whether it is lawful, justified, and has any precedent. Judge Murnane emphasized that the question of lawfulness is different than the question of justifiability. She argued that while the Executive Order is certainly outrageous and unjustified, the question of legality is more nuanced. Furthermore, this particular form of action is unprecedented, as no one has imposed sanctions before, but other states have thwarted investigations. For example, the Kenyatta investigation was marked by witness intimidation, which culminated in charges against the Kenyan president being dropped. Professor Cassel, drawing on his own experiences in the Kenyatta investigation, noted that many witnesses were not only intimidated, but were murdered. He argued that the U.S. sanctions are wrong in principle and are contrary to U.S. values and U.S. interests. Sanctions have historically been used against terrorists, international drug traffickers, and those who commit atrocities. Applying them to those who investigate atrocities is “perverse.” Professor Sadat focused her attention on the issue of legality. She argued that the sanctions are unlawful, as the previous precedents of sanctions use have never been applied to a situation like this. Although there is broad language in previous case law which is concerning, Professor Sadat believes that they are distinguishable and is more than happy to go to court to decide the issue.
Before ending the webinar, participants answered audience questions, including whether the United States continues its policy of conditioning U.S. military support on countries signing an agreement not to arrest or detain any U.S. individuals at the request of the ICC. Professor Sadat, Judge Murnane and Professor Cassel stated that as far as they were aware the policy had ended. They further noted the irony of conditioning human rights and rule of law training on signing an agreement exempted the United States from the human rights regime. The second question asked what actions the ABA had taken to try and address the American Serviceman Protection Act. Judge Murnane explained that the ABA issued Revised Policy 10b in response on August 9, 2004. To close a lively webinar which often focused on the concerns of political prosecutions, Professor Sadat noted that it is always difficult for judges and prosecutors to deal with controversial cases. e.
The webinar can be watched online.