Statement by the ABILA ICC Committee

On the Application for ICC Arrest Warrants in the “Situation in the State of Palestine”:

The United States must uphold international justice and respect the independence of the International Criminal Court

Ever since the October 7, 2023, attacks by Hamas and the Israeli response thereto, the conflict in Gaza has roiled the international community and deeply traumatized the people of Israel and Palestine. On May 20, 2024, ICC Prosecutor Karim A.A. Khan, K.C. announced that he was applying for arrest warrants against three Hamas leaders and two Israeli officials relating to the October 7, 2023, attacks and Israel’s response. While most States have welcomed the application, U.S. President Joe Biden has stated that it is “outrageous” to apply for arrest warrants and U.S. Secretary of State Anthony Blinken has suggested he will work with lawmakers on potential sanctions against the ICC’s “profoundly wrong-headed decision.” This response misses the mark and squanders an opportunity to bring about some accountability for victims of the atrocities committed during the conflict.

Palestine acceded to the Rome Statute on January 2, 2015, and on May 22, 2018, referred possible crimes within the ICC’s jurisdiction in Gaza, the West Bank, and East Jerusalem to the ICC Prosecutor. On February 5, 2021, Pre-Trial Chamber I found that the ICC had jurisdiction over “Gaza and the West Bank, including East Jerusalem.” This means that the ICC currently has jurisdiction over anyone who commits genocide, war crimes, or crimes against humanity in those areas and any crimes committed by Palestinian nationals outside those areas.

This Committee, which was founded in 1994, has not only been active in the creation and establishment of the International Criminal Court, but has not hesitated to speak out when the situation has warranted it, to support the Court’s independence.

In recent years the ICC has confronted opposition to the pursuit of justice, by States whose nationals are on the receiving end of ICC arrest warrants or investigations, and particularly from the United States. In response to the ICC’s investigation into alleged war crimes and crimes against humanity by U.S. forces in Afghanistan, members of Congress levied threats against the ICC and its personnel. In 2020, former President Donald Trump actually imposed sanctions against the ICC Prosecutor and a senior member of her staff. A public outcry ensued both in the United States (including by the ABILA ICC Committee, here and here) and abroad. Eventually, the sanctions were the subject of two lawsuits in the United States, one of which granted a temporary restraining order on the grounds that the sanction order was so sweeping in its provisions that its application was in likely violation of the First Amendment.

The sanctions were dropped during the Biden Administration and ultimately backfired; while they undeniably inconvenienced the ICC Prosecutor and interfered with the Court’s activity, the ICC’s staff were undaunted in their work and their reputation was strengthened, not diminished, as they continued to do their jobs despite U.S. pressure.

In 2021, both this Committee and ABILA’s former President spoke out against the sanctions imposed by President Trump and welcomed their rescission by President Joe Biden. When President Biden lifted the sanctions, he noted that “the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing” U.S. concerns with the Court.

Since that time, the United States has supported the Court, most fervently with respect to the Ukraine investigation and the warrants against Russian President Vladimir Putin and Ms. Maria Lvova-Bulova, as well as Sergei Ivanovich Kobylash, a Lieutenant General in the Russian Armed Forces, and Viktor Nikolayevich Sokolov, an Admiral in the Russian Navy. In the situation of Ukraine, the United States sees the work of the Court as supporting its national self-interest and has therefore constructively engaged with the Court. Congress made it easier for the United States to provide information to the ICC, and the President ordered those in the national security apparatus to fully cooperate with the Prosecutor. These measures recognized Prosecutor Khan’s independence and competence and acknowledged that the United States has the ability to play a positive role in international criminal justice even if it is not a State Party to the Rome Statute.

With respect to the Palestine situation, the threat of sanctions clearly has not daunted Prosecutor Khan, who has demonstrated both courage and independence. Prosecutor Khan and his team knew the risk of U.S. opposition and acted anyway, because the job that they accepted was to be independent and impartial in the pursuit of their mandate. As the Independent Panel of Experts that reviewed the evidence underlying the Prosecutor’s application recently wrote, there are reasonable grounds to support the allegations of war crimes and crimes against humanity in the proposed arrest warrants. Moreover, as they note, the law being applied is “humanity’s law, not the law of any given side,” which protects all the victims of this conflict and “all civilians in conflicts to come.”

Although the United States now objects to the possibility of ICC investigations in the situation relating to the State of Palestine, international justice is not a “pick and choose” system. The law must be applied impartially to all. The United States should not stand behind the Court when it issues warrants against Russian nationals, and then seek to retaliate against it for pursuing warrants in a situation where a U.S. ally is concerned. Nor is there any “moral equivalence” implied by the Prosecutor’s application to the Pre-Trial Chamber to issue warrants for individuals reasonably believed to have committed atrocity crimes. The Prosecutor’s decisions are guided solely by the evidence and the law and were themselves unanimously approved by outside experts.

The ABILA ICC Committee strongly urges U.S. President Joe Biden and the U.S. Congress to refrain from attempting to interfere with the ICC’s ongoing investigation in the Palestine situation and elsewhere. As General Wesley Clark (Ret.) wrote in his critique of the Trump-era sanctions, “The United States benefits from its leading role in developing and complying with international law and from the institutions that help enforce that law.”

The United States must not be seen to be attempting to manipulate the rule of law to benefit itself or its allies. Experience has shown that this is not only wrong-headed, but unproductive. The ICC—an independent, permanent judicial institution with the mandate to pursue only the worst crimes of concern to the international community—must be able to do its work free from interference or political threats.

–ABILA ICC COMMITTEE[1]

Professor Patrick Keenan, co-chair

Professor Leila N. Sadat, past committee chair & past President of ABILA

Rebecca Shoot, advocacy director

Professor Jennifer Trahan, co-chair & a Vice President of ABILA

[1] This media statement reflects the views of the Committee on the International Criminal Court of the American Branch of the International Law Association but does not represent the official position of the American Branch as a whole. The committee consists of approximately one hundred and twenty-eight members. One member was unable to join this statement due to professional obligations.

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By ABILA 2023 Student Ambassador Valerie Sigamani, J.D. Candidate at California Western School of Law.

This blog is part of a series of reflections on ILW 2023 by our Student Ambassadors. Each Student Ambassador engaged with a variety of panels and will be sharing their experiences over the spring and in the lead up to ILW 2024.

The prosecution of gender-based crimes in international courts has always been focused on sexual violence, but what happens when gender-based crimes are much more systemic and insidious? Does the definition of gender persecution reach beyond sexual violence? In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on the Crime of Gender Persecution, which enhanced the ability of international accountability bodies to prosecute gender-based violations expanding beyond sexual violence by clarifying the international criminal law. Gender persecution crimes are crimes that target groups based on gender, including expression of gender roles, and policies that regulate aspects of life based on gender. The policy clarifies that “[u]nderlying acts or crimes of gender persecution may include, but are not always manifested as, …psychological abuse…[and] cultural destruction or confiscation or attacks on schools or hospitals.” 

Milena Sterio

On October 21, 2023, Milena Sterio, Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Managing Director at the Public International Law & Policy Group moderated a conversation between distinguished guests, Yvonne Dutton, Professor of Law at the Indiana University Robert H. McKinney School of Law and a former federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York; Lisa Davis, Professor of Law at CUNY and Special Advisor on Gender Persecution to the International Criminal Court; Valerie Oosterveld, Professor at Western Law, Ontario with research and writing focus on gender issues within international criminal justice; and Priya Pillai, lawyer and international law specialist, with two decades of expertise in the areas of international justice. The panel discussion was The ICC’s Gender Persecution Policy: definition, implementation, and way forward. 

Lisa Davis

Davis noted the importance of creating a policy around gender persecution because gender-based violence is not a crime, but rather a term of art. Gender persecution is the only way that people can be held accountable for gender-based violence. The ICC OTP’s Policy Paper called for submission from people living with the effects of gender persecution. This Policy is reflective of the comments received from the submissions and sought to address the concerns of those who are seeing the effects of gender persecution on their communities, their government, and their health. The definition of gender persecution goes beyond the identity of the victim and targets the reason for the crime, which is motivated by the perpetrators view of gender. 

Yvonne Dutton

Dutton and Oosterveld discussed a recent case that could change the landscape of gender persecution charges at international courts. Since the release of the Policy, a precedent-setting gender persecution case, Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud has been brought to the ICC. It is the first case to be litigated at the Court on the crime against humanity of persecution on gender grounds. The case addresses gender persecution through both sexual violence as well as through the systemic control of women and disproportionate punishment for women for violating gender ideals reflected in the law imposed by Al Hassan. The results of this case will have a large impact on the future of gender persecution cases at international courts. 

Valerie Oosterveld

Pillai discussed how gender persecution is enabled by systemic practice found at the local level. Complementarity is the principle by which the ICC gains jurisdiction only when the domestic courts are unwilling or unable to prosecute the crime. The aim is to end impunity for serious crimes, and complementarity drives international bodies to emphasize local capacity building. If there is an emphasis on capacity building at domestic courts in the application of the Policy on the Crime of Gender Persecution, then there will be greater movement towards the eradication of gender persecution. The policy offers inspiration for domestic courts to make gender-based crimes a priority. The Policy contemplates the support of domestic prosecutions of gender-based crimes, thus integrating complementarity into the Policy. 

Priya Pillai

The Policy on Crimes of Gender Persecution clarifies and enhances the ability for documentation of gender persecution at a national and international level. These data points will serve for a greater ability to prosecute and capacity build to address the issues States face. Although the Policy is only a year old, it is encouraging to see the impact that it has made in the prosecution of gender-based crimes.  

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July 17, 2023, marked the 25th anniversary of the Rome Statute, the foundational treaty of the International Criminal Court (ICC), a Court of last resort for the gravest crimes. The situation in Ukraine has underscored the need for cooperation to bring perpetrators of atrocity crimes to justice and the recent announcement of U.S. cooperation in the ICC investigation in Ukraine is a welcome development. However, more can be done to support the ICC’s vitally important work and combat impunity worldwide. This milestone provides an opportunity to reset the U.S. relationship with the ICC and reaffirm the United States’ commitment to the rule of law and accountability.

Read the full report here: https://www.ila-americanbranch.org/wp-content/uploads/2023/08/ICC-Committee-Statement-Aug.2023.pdf

Learn more about the ICC Committee here: https://www.ila-americanbranch.org/committees/international-criminal-court/

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The International scholarly community lost a shining star with the recent, untimely passing of Professor Megan Fairlie, who, among many other accomplishments, served as co-chair of the International Criminal Court Committee of the American Branch of the International Law Association.

Megan was a Professor of Law at Florida International University College of Law where she specialized in Criminal Law, Criminal Procedure & Litigation, International Human Rights, International Law, and Professional Responsibility.

She was a prolific scholar, having authored scores of law review articles and book chapters. Her main research was in the area of international criminal procedure, particularly questions arising in proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court (“ICC”). See her full CV here.

Megan received her PhD in International Human Rights Law from the National University of Ireland (Galway), where she studied with Professor William A. Schabas, who later became a treasured friend. In recent years, Megan returned to teach at the Irish Center for Human Rights in their renowned summer program. Megan’s LL.M. was from the same University, with her J.D. from Washington and Lee University. She received her B.A. (summa cum laude) from the State University of New York at Albany where she was inducted into Phi Beta Kappa.

Having commenced her law career as an Assistant District Attorney in North Carolina, she later served as Counsel in both houses of the New York State Legislature in Albany, New York. She also served as a Visiting Professor at Albany Law School, and a Lecturer in Law at the University of Ulster, Belfast, where she was part of the Transitional Justice Institute.

Megan cared deeply about the ICC and the US relationship with the Court. She authored or co-authored numerous posts on the ICC, including on Opinio Juris. For another post, see also here. Megan wrote with precision and eloquence and a deep-seated commitment to the rule of law and accountability, as well as a steadfast opposition to exceptionalism.

Beyond her scholarship and technical expertise, Megan will be remembered for her zest for life, her dry and clever wit, and being a devoted mother to her two young daughters. She was extraordinarily principled in her views, and a joyful person who enriched the lives of those who were fortunate enough to spend time with her. Even in illness, she retained a remarkable sense of humor and optimism.

Megan succumbed, after a long battle with cancer, on December 27, 2022.

This post is written to celebrate the accomplishments of a remarkable person and trusted colleague who will be dearly missed.

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