ICC Prosecutor should indict Secretary Pompeo for obstruction of justice, under Article 70 of the Rome Statute

"Today, in a press briefing, United States Secretary of State, Mike Pompeo, said that a November 2017 request from the ICC Prosecutor to open an investigation into the situation in Afghanistan could illegitimately target American personnel for prosecutions and sentencing. He went on to say that in September 2018, in light of the Prosecutor's request, the Trump Administration had "warned" the ICC that if it tried to pursue an investigation of Americans, "there would be consequences". 
 
Secretary Pompeo noted his understanding that the request to open an investigation into the situation in Afghanistan remains pending before the Judges: "thus, today," he announced a policy of visa restrictions on persons responsible for any ICC investigation of US personnel, including persons who take or have taken action to request or further such an investigation. Noting that implementation of the new visa policy has already begun, he also stressed that this did not rule out additional steps, including economic sanctions, "if the ICC does not change its course".
 
Article 70 of the Rome Statute of the International Criminal Court provides that the Court has jurisdiction over various offences against the administration of justice when committed intentionally. These include "impeding, intimidating or corruptly influencing an official of the Court for the purposes of forcing or persuading the official not to perform, or to perform improperly, his or her duties" and "retaliating against an official of the Court on account of duties performed by that or another official".
 
Secretary Pompeo's statement today manifestly appears to violate article 70 of the Rome Statute. By threatening ICC officials with visa sanctions, or with some future unspecified "additional steps", he appears both to be seeking to intimidate ICC officials and to retaliate against them. 
 
These officials include the judges: Secretary Pompeo knows full well, as he said in his statement, that the request to open an investigation into the situation in Afghanistan is currently before an ICC Chamber. His statement manifestly appears designed to intimidate those judges into issuing a particular decision, i.e. that Americans may not be the target of an ICC investigation, by threatening all-out retaliation against the ICC. Given the tenor and clarity of his words, Secretary Pompeo appears to have been acting intentionally - indeed determinedly - in making this statement.
 
Pursuant to rule 165 of the Rules of Procedure and Evidence, the ICC Prosecutor should immediately initiate an investigation in relation to these offences against the administration of justice. Secretary Pompeo's official position does not shield him from investigation or prosecution:  the International Court of Justice said, in the Belgium Arrest Warrant judgement of 2002, that "an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction", expressly citing the International Criminal Court. 
 
The ICC has jurisdiction because Secretary Pompeo's words were designed to intimidate the judges into taking a particular course of action on a decision pending before them, and because of the retaliatory actions already taken in implementation of the policy announced today. The fact that the press conference took place in the territory of a non-State Party is irrelevant to the Court’s jurisdiction over these crimes, as the intimidation and retaliation are intended to have effect in The Netherlands.
 
Secretary Pompeo should be held to account for today's blatant attempt to pervert the course of justice by threatening, intimidating and retaliating against those who are simply carrying out their duties to ensure justice for the crimes committed in Afghanistan, irrespective of who the perpetrators may be."
 
 
For more information, please contact: Alison Smith (Director of International Criminal Justice Program) on asmith@npwj.org or Nicola Giovannini (Press & Public Affairs Coordinator) on ngiovannini@npwj.org