Did ACLJ/ECLJ Lie to the Appeals Chamber?

Opinio Juris

On October 15, Jay Sekulow — best know as one of Trump’s lawyers — filed a request to submit observations concerning the Afghanistan appeal on behalf of the European Centre for Law & Justice (ECLJ), the European branch of the American Center for Law & Justice (ACLJ), an ultra-right NGO. The Appeals Chamber granted the request on October 24, and Sekulow is scheduled to appear at the hearing.

In his request, Sekulow identified two issues ECLJ wanted to comment on:

Issue 1: Whether Pre-Trial Chamber II’s decision is one that may be considered a decision with respect to jurisdiction or admissibility under Article 82(l)(a).

Issue 3: The merits of the appeals filed by the Prosecutor and the victims.

The first issue is a technical one about the appealability of the PTC’s decision. The second issue is more substantive, focusing on what factors the PTC should able to take into account when deciding to asses the interests of justice:

10. The ECLJ, like some other amici curiae, disagrees with the Prosecutor’s claim that “for the purpose of this appeal, it is not necessary to resolve the broader debate about the full range of factors which might or might not become pertinent in assessing the interests of justice in any given situation.” The ECLJ would submit observations that Article 53(l)(c) is a substantive legal principle affecting, inter alia, the ICC and its relationship with domestic legal systems. Further, one must take into account other principles of international law, like comity and legal immunities, which are critical in safeguarding international peace and security.

A new press release from ACLJ seems to indicate that Sekulow lied to the Appeals Chamber about what he intends to discuss at the appeals hearing. Here are the relevant paragraphs:

This case is all about the ICC Office of the Prosecutor seeking to open up jurisdiction for potential international criminal investigations against U.S. soldiers and members of the intelligence committee. It is important to note that, the United States is not even a member of nor does it recognize the jurisdiction of the ICC.

[snip]

However, even though the United States is not a member of the ICC. The ACLJ will be there defending American soldiers from attack. Next month my dad and I will be presenting an oral argument before the ICC Appeals chamber at the Hague.

[snip]

The ACLJ, as best we can tell, is the only organization before the ICC that is representing and advocating for the U.S. military and intelligence position that the ICC does not have jurisdiction on this matter.

It is clear from the press release that Sekulow intends to argue that the ICC does not have jurisdiction over crimes committed by the US military and CIA on the territory of a state party, Afghanistan. That is not what Sekulow asked to be heard on — and it is an utterly frivolous issue, one that will not in any way assist the Appeals Chamber in deciding the appeal.

Sekulow’s appearance is nothing more than a publicity stunt designed to undermine the ICC and raise money for his ultra-right causes. The Appeals Chamber should immediately disinvite Sekulow from the hearing — or at least ask him to explain why he seems to have lied to the Court.

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