16

US threatens to arrest ICC judges over war crimes probe (Deutsche Welle)

Is there any such law that would allow the U.S. impinge on another nation's sovereignty in order to prevent ICC judges from carrying their duties? Is there any international law that would permit the U.S. to do so, how would the U.S. justify such actions?

The issue I see is that U.S. laws cannot dictate what's done outside its jurisdiction and the ICC judges being outside of the U.S. should be safe from U.S. authorities.

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    Doesn't your question contradict itself? If US laws can't dictate what is done outside its jurisdiction (they sometimes do, or try to, but that's a different issue), then how can the ICC dictate what's done outside its jurisdiction? – jamesqf May 26 at 17:12
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    @jamesqf I don't see any contradiction. The question doesn't involve the ICC dictating what's done outside its jurisdiction. The US doesn't recognize the ICC so the ICC can decide whatever it wants and the US will just shrug. – David Richerby May 26 at 18:27
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    Although you've accurately reproduced the headline from that page, that actual content says nothing about arrest. There was a direct quote "We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans," which seems short enough to ask about in your question. – Ben Voigt May 27 at 2:05
  • @DavidRicherby the ICC however claims AFAIK that its jurisdiction includes the USA. – jwenting May 27 at 9:35
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    Keep in mind that it is John Bolton saying this, so figure it's about 99.9% bluster. – PoloHoleSet May 28 at 20:30
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The ICC has approximately no legal status under the US Constitution. In particular:

  • It is not an Article III (federal) court because it was not established by Congress.
  • It is not treated as a foreign court under principles of comity, because it is not part of the legal apparatus of any sovereign state recognized by the United States.
  • The United States has not ratified the ICC treaties, so the ICC has no sui generis legal status arising from such treaties.

As a result, its judges do not benefit from any sort of judicial immunity. Under American law, the ICC judges are "just" private citizens holding, for all intents and purposes, a "fake trial" with no legal validity. So, to determine whether the Americans can prosecute the ICC, we need only determine whether they could prosecute private citizens engaged in the same acts.

If the ICC merely claims that a war crime has been committed, then that is almost certainly protected speech under the First Amendment. Under very specific fact patterns, it might be defamation, but this would require the ICC judges to lie about the facts of the case, or for them to intentionally disregard evidence. I assume they have no intention of doing that. The United States might also try to raise various statutes relating to national defense and so forth, but it's hard to see how the speech of private citizens of non-US countries could plausibly be reached by such a law.

If the ICC attempts to arrest or extradite American citizens, however, then we're getting into more dangerous territory. The US could consider that an act of false arrest, and has a wide array of legal options, up to and including the Global Magnitsky Act. This law allows the US to freeze the assets of foreigners who commit human rights violations outside the United States, and the US could plausibly determine that false arrest and imprisonment falls under that category.

Finally, for visas, the American immigration system is notoriously opaque and unfair. It is very easy for the American government to deny visas or prevent the entry of anyone it likes, regardless of the surrounding circumstances. Since entering the US is a privilege, not a right, it is difficult to raise Constitutional arguments in this context.

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    Why do you assume that ICC would never intentionally disregard evidence? ICC may view some evidence as not credible and disregard it for that reason. – grovkin May 26 at 6:28
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    @grovkin: The actual malice standard is more stringent than that. They would have to deliberately ignore evidence despite its probative value, as opposed to considering it but finding it unconvincing (i.e. "You're allowed to make mistakes, but you have to try to get it right"). That might happen if the evidence were strong but inadmissible, but now we're deep in the "what if" realm and it's dangerous to speculate too far out. – Kevin May 26 at 7:06
  • Could you explain the 'false arrest' thing? If an american is cought driving on the right side of the road in the UK, surely they can be fined despite being from the USA, and despite driving on the right side of the road being correct in the USA. I can understand a country not extraditing its citizens for actions it does not consider a crime, but once a citizen is actually arrested in another country for something that is a crime there, surely only diplomacy is left? – Ivana May 28 at 9:01
  • Do you have any evidence that this is the administration's actual position? I've downvoted, but will remove that if you do. The US has lots of problems with the ICC, but as far as I can see it does not deny its existence or its authority over others. It has welcomed some of its prosecutions against others. @Ivana the US does not deny that UK courts have jurisdiction over US citizens present in the UK. But it does deny the ICC's jurisdiction over US citizens. That's the difference. – phoog May 28 at 14:29
  • @phoog: Please write your own answer if you think I've gotten it wrong. – Kevin May 28 at 15:42
11

Impersonation of a foreign official.

Because ICC is not recognized as a court, if any officer of ICC claims to be be an officer of a court, they may be guilty of 18 U.S.C. § 915 impersonating an official of a foreign government.

Whoever, with intent to defraud within the United States, (likely made meaningless by guidance to 912) falsely assumes or pretends to be an ... official of a foreign government duly accredited as such to the United States and acts as such, ..., shall be fined under this title or imprisoned not more than ten years, or both.

In the DOJ guidance on what constitutes "18 U.S.C. § 912 personation of officer or employee of the United States", it states that "Government officials are impersonated by any persons who assume to act in the pretended character. Thus action alone may amount to a false pretense of federal authority. (by inquiring about passports, defendants pretended to be federal immigration officers)."

It is true that this is the standard for what constitutes "personation of a federal employee". However, "personation of an official of a foreign government" and "personation of a federal employee" are both parts of 18 USC part I chapter 43. In the absence of a more specific guidance for 915 (changing the guidance for 912), it is plausible to assume that the same standard, for what constitutes personation, applies for the purposes of 915 as does for the purposes of 912.

The reason for removing "intent to defraud" from 912 is that US v. Lepowitch "renders them meaningless".

Lepowitch, ... held that "intent to defraud" did "not require more than the defendant had, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct."

Again, since the language in the 1st part of 915 is the same as it is in 912, it is highly likely that Lepowitch would apply in the same way to "intent to defraud" clause of 915 as it does to the "intent to defraud" clause of 912. Which is to say, Lepowitch would "render it meaningless."

The above-quoted part of Lepowitch actually addresses some of the objections which have been voiced in the comments to this answer and to some of the other answers to this question. It clearly states that the intent of the code is to make it illegal for people to use a ruse to make themselves appear to have more authority than they actually have. Such a ruse is illegal even if the ruse attempts simply imply (but do not directly assert) a position of authority.

American Service-Members' Protection Act

American Service-Members' Protection Act treats, and specifically targets, ICC as something slightly short of a terrorist group. It makes the precise legal standing of ICC akin to that of a vigilante group which has gained support of some foreign governments. The US tolerates ICC's seeming vigilantism as long as ICC does not attempt to impose its will on the US or US allies.

ASPA authorizes the U.S. President to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court."

"All means necessary" here is not limited to just political or legal means. This is how declarations of war are worded. "All means" includes all military means. Should ICC attempt to arrest any US military personal, it would be treated as an entity at war with The United States. At that point, rules of war rather than rules of law would apply.

The act prohibits federal, state and local governments and agencies (including courts and law enforcement agencies) from assisting the court. For example, it prohibits the extradition of any person from the U.S. to the Court; it prohibits the transfer of classified national security information and law enforcement information to the court.

This last part puts ICC on a lesser footing than a bouncer at a bar.

Subversive Activities

TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES. 18 USC 2387

(a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States:

(1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; ...

Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If a foreign official attempts to contact any service member with intent to investigate that service member's or another service member's conduct, while that official is on the territory of the US, the foreign official may be seen to be attempting to cause disloyalty or refusal of future duty. This would fall under 18 USC 2387. This is a criminal offense.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Philipp May 28 at 14:50
  • @Philipp these comments did, in fact, discuss how the answer could be improved. And I mage changes as a result of the comments. This wasn't an idle discussion. – grovkin May 28 at 17:29
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    ...which is why I moved it to chat instead of deleting it. – Philipp May 28 at 18:01
  • +1 for citing the bar bouncer, noble paragon of orderly nocturnal revelry. – wberry May 28 at 23:40
4

The US recently issued a US visa ban on ICC judges. So yeah, they could detain them upon arrival if they come and send them back from where they came from.

And even if they don't come, it has plenty of tools at its disposal to cause them trouble.

For instance it could issue individual sanctions on them and put them on the Specially Designated Nationals And Blocked Persons List, which more or less is the individual person's version of being Iran as a country. You can find relevant legalese here, and it relates to Presidential emergency powers as explained on the OFAC wikipedia page.

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    Attempting to enter the US (at a port of entry) without a visa is not a crime as far as I'm aware, so it would not be possible to arrest them for coming to the US. Instead, they would be refused entry and possibly detained and removed to another country. – phoog May 26 at 7:48
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    Do you happen to know if they received a visa ban or were designated persona non grata? I believe the distinction is that persona non grata cannot enter even if some country extends them a diplomatic immunity. – grovkin May 26 at 20:16
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    @grovkin: I've honestly no idea -- I haven't been following the nitty-gritty. – Denis de Bernardy May 26 at 20:33
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    @grovkin: This news article indicates PNG status (not sure whether it encompasses the full group receiving a visa ban): diplomatictimes.net/2019/04/06/… – Ben Voigt May 27 at 2:19
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    @phoog according to the article linked by Ben Voigt above, they are not simply denied a visa. They are, in fact, designated persona non grata. This makes it illegal for them to be in the US even if they are given a diplomatic status by some country. – grovkin May 27 at 9:03
0

Under what law can the U.S. arrest International Criminal Court (ICC) judges over war crimes probe?

There is none. Other answers have mentioned the following laws:

  • The Global Magnitsky Act. This act authorizes civil sanctions. It does not define a criminal offense, and it does not authorize anyone's arrest.

  • 18 USC 915, impersonating an official of a foreign government. This might apply only if an ICC officer comes to the US without proper diplomatic credentials and then claims to have diplomatic credentials, an unlikely scenario indeed. Even then, the statute does not purport to apply to officials of international organizations, so it probably doesn't apply in any case.

  • The American Servicemembers' Protection Act. This act prohibits US governments and their officers and employees from cooperating with the ICC. It does not define any criminal offense, much less one that could be committed by an officer or employee of the ICC.

The US has many options to frustrate the work of the ICC, but arrests and prosecutions are not among them.

  • Downvoter, please comment. What have I gotten wrong about the laws cited here, or what laws have I overlooked? – phoog May 28 at 22:02
  • This answer is dangerously misleading. It completely ignores the reasons clearly outlined and explained to the answer's author in numerous comments. The answer's author may wish that what he/she says were so. But it isn't. If any ICC officers actually used this answer as a guidance for their actions, they would almost certainly find themselves arrested and expose ICC and ICC vendors to penalties triggered by law. This answer should be removed. – grovkin May 28 at 22:03
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    @grovkin I am not ignoring those reasons. I simply find them unconvincing at best, and speculative if not ungrounded in reality. If you have a particular reason in mind, please mention it and I will edit the answer to analyze it in greater detail. As to this answer being dangerous, ICC officers are trained legal professionals, and they would never be so foolish as to use a stack exchange answer as a substitute for legal advice. They surely have a legal staff on the payroll for that purpose. – phoog May 29 at 3:24

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