Chief Counsel’s Debriefing: Our Important Work at the International Criminal Court
Working through our affiliate, the European Centre for Law and Justice (ECLJ), last week I led a team of attorneys before the International Criminal Court (ICC).
On today’s Jay Sekulow Live, we discussed my team’s work before the ICC defending the rights of U.S. soldiers.
I was dealing with an international matter at the ICC in The Hague, for an appeals chamber hearing for a situation with the Islamic Republican of Afghanistan. Again, we were there through our European Centre for Law and Justice, which has standing with all of these international tribunals.
We’ve actually been involved with ICC litigation for a decade. This particular case is really a big one because the Prosecutor has sought to get jurisdiction over U.S. military and intelligence agencies, including the CIA, for alleged war crimes in Afghanistan or at Guantanamo Bay.
They actually had the victims’ lawyers and there was one group of victims’ lawyers that talked about what the Taliban had been doing to the civilian populace of Afghanistan which was quite moving testimony. But then you had the terrorists' lawyers—that’s what they are—complaining about process. One of those terrorists had significant involvement in the death of dozens and dozens of American soldiers. I kept saying to myself, "What about their due process?"
So the arguments were, I think, well received. The court was very professional, the staff was excellent, and we were received fairly. We got questions, which was normal in these kinds of processes.
At one time I counted 23, maybe 25, lawyers in the hearing room. The hearing room is huge. You’ll notice if you watch our videos that we’re wearing headsets. The courtroom is so large that even with their sound system, you have to have the headsets working in order to proceed and understand the proceedings. Sometimes it’s also translated into different languages—particularly English for some is a second language, French for others.
The hearing involved the issue of jurisdictional reach over U.S. citizens. It was a three-day hearing—Wednesday, Thursday, and Friday. We arrived on Monday morning and immediately went to work on refining the arguments. You’re refining the arguments literally until the night before you go to court because every word makes a difference. I had the opportunity to appeal twice, both on Wednesday and Thursday. Wednesday, there were no questions because it was a very technical issue on jurisdiction; but Thursday was the merits and I got four questions from two judges.
It was interesting that we got responses. On Friday, we did not speak, but you have to attend because they can ask you questions. There were these sections where each of the victims’ groups went ten minutes; and I think in each of those, we were referenced multiple times. The prosecutor referenced us multiple times.
So here is the team we had with us in country: A former law clerks who is now practicing law in Europe, ACLJ Special Counsel for International Affairs Mark Goldfeder, ACLJ Senior Counsel Andy Ekonomou, myself, ACLJ Senior Counsel Stuart Roth, ACLJ Chief of Staff Miles Terry, David Benjamin who is Of Counsel in our ACLJ Jerusalem office, ACLJ Senior Litigation Counsel Shaheryar Gill, and ACLJ Senior Counsel Skip Ash. That’s how many lawyers we had working on this.
It was a moving experience in the sense that we were representing the interests of our country. We were not there representing the United States, although the legal position we advocated for was the position that the United States advocates. However, the U.S. does not recognize the jurisdiction of the ICC and neither is it a party to it. That’s why we were there, through our European Centre for Law and Justice, advocating for the rights of U.S. soldiers.
You can find out more about our work at the ICC by listening to the entire episode here.