Legal advisers sue over court ban
Legal advisers to the International Criminal Court, including two Bay Area law professors, have sued to challenge the Trump administration’s sanctions on the court’s prosecutors for investigating Israel and U.S. actions in Afghanistan — sanctions that the Biden administration has left intact so far.
The penalties include potential criminal charges against anyone, including the law professors, who provides information to the international court’s prosecutors or assists them in any way, the advisers said in their lawsuit, filed Friday in federal court in San Francisco. They said the government’s orders violated freedom of speech and federal law.
The 123nation court, based in the Netherlands, announced an investigation in March 2020 into possible war crimes by combatants in Afghanistan, including the government, Taliban militias, U.S. military forces and CIA personnel, but has put the investigation on hold to consider the Afghan government’s own examination of the events.
The court proposed a separate review in December 2019 of possible war crimes by all sides in Israel, the West Bank and Gaza. It began its investigation two weeks ago after a branch of the court concluded that Palestine was a proper participant.
Declaring the court’s actions an “extraordinary threat to the national security and foreign policy of the United States,” President Donald Trump issued an executive order in June imposing sanctions on the court’s chief prosecutor, Fatou Bensouda, and a chief aide, Phakiso Mochochoko.
The order froze their property or possessions
in U.S. territory and banned U.S. travel by either prosecutor or their families. It also said any Americans who provided services or support to either prosecutor could face civil penalties or criminal prosecution.
The lawsuit noted that although the United States is not a member of the court, it “has been a driving force behind the creation and use of international justice tribunals,” including the Nuremberg Tribunal that tried Nazi leaders after World War II. Israel also does not belong to the court, but Afghanistan and the Palestinian Authority are members, and the court can investigate events on their territory.
“No compelling interest justifies the imposition of sanctions on senior ICC leaders pursuing justice and accountability for atrocity crimes at the very court that the United States helped create for that purpose, or for prohibiting law professors and attorneys from supporting those efforts,” the suit said.
The plaintiffs are Leila Sadat, a law professor at Washington University in St. Louis appointed as a special aide to the chief prosecutor in the case; K. Alexa Koenig, director of the Human Rights Clinic at UC Berkeley law school and an adviser to the prosecutors; Naomi RohtArriaza, a law professor at UC Hastings in San Francisco who researches human rights crimes; and Steven Watt, an American Civil Liberties Union attorney who represents victims of rights abuses in Afghanistan. All have halted their work for the court because of the sanctions, the suit said.
In a separate suit, a federal judge in New York ruled Jan. 15 that the penalties were likely to violate freedom of speech and barred their imposition on a human rights group and four law professors. The Biden administration has said it is reviewing the issue, but it has not lifted the sanctions.
Scarlet Kim, an ACLU attorney in the San Francisco suit, said Monday the sanctions are “another terrible legacy of the Trump administration” that President Biden should rescind. In the meantime, she said, judicial action would allow the plaintiffs to “return to their critical work supporting the ICC’s mandate to pursue justice for human rights atrocities.”