Following a 5 March 2020 decision by the International Criminal Court’s (ICC) Appeals Chamber, which authorised a probe of alleged war crimes in Afghanistan committed by all sides in the conflict, including American forces, the US administration announced it was launching an economic and legal offensive against the court.
On 11 June 2020, in response to the Appeals Chamber’s decision, the US President issued Executive Order 13928 on Blocking Property of Certain Persons Associated with the ICC. The US Government declared it would revoke or deny visas to members of the ICC involved in investigations against US troops in Afghanistan or elsewhere and sanction any person “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States”. US Attorney-General William Barr said the moves were aimed at “holding the ICC accountable for exceeding its mandate and violating the sovereignty of the United States”.
The unprecedented decision by the United States Government to target and sanction individual staff of the ICC is a direct attack to the institution’s judicial independence and could undermine victims’ access to justice.
Diego García-Sayán, the UN Special Rapporteur on the independence of judges and lawyers said, “The implementation of such policies by the US has the sole aim of exerting pressure on an institution whose role is to seek justice against crimes of genocide, war crimes, crimes against humanity, and the crime of aggression.
“It’s a further step in pressuring the ICC and coercing its officials in the context of independent and objective investigations and impartial judicial proceedings.”
UN experts said, “The use of unilateral sanctions against international judges and international civil servants constitutes a clear violation not only of their privileges and immunities, but also of a broad spectrum of rights of the targeted individuals.
“The enforcement of E.O. 13928 would result in the violation of the prohibition of punishment for acts that did not constitute criminal offences at the moment of their commission, the right to a fair trial, the right to freedom of movement and the right to privacy and family life.
“These threats constitute improper interference with the independence of the ICC and could also have potential adverse impacts on human rights defenders, civil society organisations and victims’ representatives who might be discouraged from cooperating with the ICC and, consequently, hinder the possibility of victims of atrocity crimes to access justice.”
The IAJ statement issued on 29 September can be found here.