‘Wait a Minute, Mr. Postman’: Legal Implications of Threats Issued by U.S. Republican Senators

[Javier Eskauriatza is an Assistant Professor in criminal law at the University of Nottingham School of Law. He is also the Co-Director of the Criminal Justice Research Centre, and the Convener of the Criminal Law and Criminal Justice stream for the Society of Legal Scholars.]

On 24 April 2024, twelve U.S. Senators (Republican Party) sent a letter to Karim Khan, the Prosecutor of the International Criminal Court (‘ICC’), threatening him, other Court officials, and their families, with ‘sanctions’ and other less specific consequences if arrest warrants were to be issued against the Israeli leadership. Application for arrest warrants against Benjamin Netanyahu and Yoav Gallant have now been made. 

Here is a list of the signatories: Senate Minority Leader Mitch McConnell of Kentucky and Senators Tom Cotton of Arkansas, Marsha Blackburn of Tennessee, Katie Boyd Britt of Alabama, Ted Budd of North California, Kevin Cramer of North Dakota, Ted Cruz of Texas, Bill Hagerty of Tennessee, Pete Ricketts of Nebraska, Marco Rubio and Rick Scott of Florida, and Tim Scott of South Carolina. 

The letter says: 

[…] If you issue a warrant for the arrest of the Israeli leadership, we will interpret this not only as a threat to Israel’s sovereignty but to the sovereignty of the United States. Our country demonstrated in the American Service-Members’ Protection Act the lengths to which we will go to protect that sovereignty.

The United States will not tolerate politicized attacks by the ICC on our allies. Target Israel and we will target you. If you move forward […] we will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United States. You have been warned.

On 1 May 2024 (before the Senators’ letter had become public), Benjamin Netanyahu released a video where he appeared to encourage interference with the ICC and its ongoing investigation into Art. 5 crimes committed on Palestinian territory or by Palestinian nationals: 

Israel expects the leaders of the Free World to stand firmly against the ICC’s outrageous assault on Israel’s inherent right of self-defence. We expect them to use all their means at their disposal to stop this dangerous move […] the Jewish state calls on decent people everywhere to reject this outrage by the ICC, to stand with Israel as we fight the barbarians of Hamas and Iran and as we work to secure a more peaceful world.

On 3 May 2024 (the Senators’ letter had still not become public), the ICC Prosecutor issued the following statement on the X social media platform:

The Office seeks to engage constructively with all stakeholders whenever such dialogue is consistent with its mandate under the Rome Statute to act independently and impartially. 

That independence and impartiality are undermined, however, when individuals threaten to retaliate against the Court or against Court personnel should the Office, in fulfilment of its mandate, make decisions about investigations or cases falling within its jurisdiction. Such threats, even when not acted upon, may also constitute an offence against the administration of justice under Art. 70 Rome Statute.

Finally, on 6 May, the letter became public and it provided some much-needed context for the events. It seems clear that the Prosecutor’s statement was issued in response to the threats his Office had received from, inter alia, the U.S. Senators. It also seems clear that the U.S. Senators intended to threaten the Prosecutor and other Court officials. Indeed, according to Senator Katie Britt of Alabama, one of the letter’s signatories, the letter was “not a threat – a promise.” Finally, it also seems clear that Benjamin Netanyahu has encouraged Israel’s allies to interfere with the ICC investigation. 

At first there was not an overwhelming response from state parties condemning the threats issued by the U.S. Senators. This was disappointing. Ultimately, the states are the guardians of the organization and an attack on the integrity and impartiality of the Court and its officials is an attack on all members of the Rome Statute system. Also, as Thomas Franck said: ‘…it is the perception that law has lost its purchase, not the unlawful behaviour itself, that propels the descent into social chaos.’

Thankfully, in time, support for the Court has emerged. For example, Josep Borrell (High Representative of the European Union for Foreign Affairs and Security Policy) said:

Enough is enough […] When the International Criminal Court indicted President Putin, we applauded. So, either we respect the International Criminal Court or not. And [if] we respect the ICC, it has to be in any case, on any occasion, with respect to anyone. So, stop trying to intimidate the judges of the ICC. 

Now that the ICC Prosecutor has announced that an application for arrest warrants against the Israeli leadership has been made, it is not unreasonable to expect further attacks and threats to be issued against the Court and its officials.  It is to be hoped that ICC state parties will be ready to respond appropriately by issuing statements that defend the independence and impartiality of the Court. The ICC may be appraised critically, it may be criticized, or it may be ignored; but its officials, and their families, should never be threatened for doing their jobs. It is also about the rule of law. The letter from the U.S. Senators to the ICC Prosecutor  is nothing short of scandalous. It recalls the modus operandi of organized crime gangs.

The ICC and Offences Committed by Non-Party Nationals

According to the Prosecutor, however, the threatening letter is not just a scandal, or damaging to the rule of law, it may also be criminal. His statement affirms that the threats, ‘may also constitute an offence against the administration of justice under Art. 70 Rome Statute’. 

Setting aside the realpolitik for a moment, this post provides an exploration of what would be involved legally in an attempt to indict these individuals, or any other individuals from non-party states, that issue threats against officials of the Court.

Firstly, it is worth clarifying doubts about ICC jurisdiction over the conduct of nationals of non-party states. This, somehow, remains very poorly understood. It is a fact that the ICC can investigate and prosecute crimes committed by nationals of non-party states under certain circumstances, including when they carry out crimes on the territory of state parties. The ICC may do this by virtue of the fact that its criminal jurisdiction (when acting proprio motu) derives from the delegated authority of the state parties. It is a general principle of international law that states need not seek permission from other states before prosecuting foreign nationals for crimes committed on their territory. Exclusive adjudicative jurisdiction over territory inheres in sovereignty. Furthermore, states may transfer these inherent sovereign powers to each other, or to supranational organisations, such as, the ICC. Thus, for example, if non-party nationals from China, Iran or Syria are alleged to have committed crimes on the territory of state parties (and these allegations have been made, see here and here), the ICC has jurisdiction. 

Even the US has wavered on its commitment to a non-negotiable and long-standing objection to the ICC prosecution of non-party nationals (see here for a chronology of the US position). At the end of 2022, US Congress passed legislation, on a bipartisan basis, that allowed ‘tailored information-sharing’ with the ICC in respect of the prosecution of foreign nationals. As the Ambassador-at-Large for Global Criminal Justice, Beth Van Shaack remarked, the U.S. is ‘not prohibited from assisting with ICC investigations and prosecutions of foreign nationals related to the situation in Ukraine, including support to victims and witnesses.’ In 2023, President Biden declared that the ICC arrest warrant issued against Vladimir Putting was justified.  That does not mean all US opposition has evaporated, however, especially as the Department of Defence which remains concerned about the prosecution of US armed forces personnel. Further in response to the recent announcement by the ICC Prosecutor that his office was seeking arrest warrants, another bipartisan move by the US Congress seeks to penalize the ICC. Thus, as Anthony Carty has explained, sometimes it is very difficult to identify exactly what it is that states “believe” in relation to any particular legal rule. 

Nevertheless, as a matter of general principle, the issue is not controversial. The prosecution of non-party nationals by the ICC represents the application of basic principles of criminal jurisdiction to extreme situations of political violence. In this case, however, we are talking about a situation where 12 individuals have sent a threatening letter. 

Objective Territoriality 

What does it mean for a crime to take place on the territory of a state party? 

The most basic scenario is when non-party nationals (i.e., Russians, Israelis) are physically present on the territory of a state party (i.e., Ukraine, Palestine) and then they commit offences over which the ICC has jurisdiction. This is known as the principle of subjective territoriality. But this approach to territoriality does not support the assertion of jurisdiction when the non-party nationals remain physically outside a state party. Instead, ICC jurisdiction would depend on the application of the principle of objective territoriality. 

Consider that the letter was sent from the U.S., a non-party state but the consequences remained inchoate until the letter was received in the Netherlands, a state party. These facts resemble the classic example used to explain the principle of objective territoriality: a man standing in state A fires a shot that kills his victim who is standing in state B. As Kenneth Gallant has explained,

The principle of objective territoriality provides that the state in which a criminal result occurs has jurisdiction both to prescribe and to adjudicate concerning the event. It does not matter whether the actor was in the state where the result occurred when performing any criminal act. Most states today apply this theory in their law of criminal jurisdiction, to one extent or another. It appears broadly in civil law, common law, Islamic law, and other Asian law states. In its original and still dominant version, objective territoriality applies only to crimes for which some result is an element of the offense—i.e., a fact necessary to prove the crime.

The ICC has already applied this rule of jurisdiction in Myanmar/Bangladesh in relation to the deportation of members of the Rohingya across the border from a non-party state into a state party (Bangladesh). It said: 

An element of the crime of deportation is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States.

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It continued that: 

the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction.

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Thus, the principle of objective territoriality is accepted by criminal jurisdictions throughout the world, including, by the ICC.

In relation to the matter at hand, there is no question that the U.S. Senators sent a threatening letter into a state party. Furthermore, the Senators were aware that they were sending a threatening letter into a state party because they wrote the address at the top of the letter: International Criminal Court, Oude Waalsdorperweg 10, The Hague, The Netherlands.

What remains to be discussed relates to the precise elements of the crime involved. This requires a look at the Art. 70 offences themselves.

Art. 70 Offences:  A Different Legal Framework

All criminal jurisdictions, domestic or international, prohibit conduct that is likely to undermine the reliability of evidence adduced at trial and the impartiality of the decision-making processes. For example, in England and Wales, s. 51 Criminal Justice and Public Order Act 1984 criminalises the intimidation of ‘witnesses, jurors, and others’. The Rome Statute contains several offences of this kind under Arts. 70 and 71. 

But pursuant to Art. 70(2) these offences are subject to a different regulatory framework to that which applies to the Art 5 offences (i.e., the core crimes over which the ICC has jurisdiction: war crimes, crimes against humanity, genocide, and the crime of aggression). The reason for this is that at the Rome negotiations, several delegations felt that these offences were qualitatively different to the Art. 5 crimes and that therefore a separate, more permissive, and more flexible regime ought to be established. Further, as mentioned, all states had a traditional legal framework that dealt with these kinds of offences. Thus, Art. 70 postponed the working out of the relevant legal framework and this is now to be found elsewhere, namely, in the Rules of Procedure and Evidence (RPE). 

Rules 162-172 RPE set out the regime that is applicable to the s. 70 offences. A key starting point is to be found in Rule 163 ( ‘Application of the Statute and the Rules’): 

Rule 163 

1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in Art. 70. 

2. The provisions of Part 2, and any rules thereunder, shall not apply, with the exception of Art. 21. 

3. The provisions of Part 10, and any rules thereunder, shall not apply, with the exception of Arts. 103, 107, 109 and 111

Rule 163(2) has the effect of overriding almost the entirety of Part 2 of the Statute (Jurisdiction, Admissibility and Applicable Law). The only provision that is saved is Article 21 (Applicable Law). What this means is that there is a great deal more flexibility in the enforcement of these offences when it comes to cooperation between the Court and the state parties. Thus, pursuant to Rule 162 (Exercise of Jurisdiction) the ICC could ‘consult’ the Netherlands with a view to ‘requesting’ (Article 70(4)(b) and Rule 162(4)) that state to exercise its jurisdiction over the relevant offence (which may be the relevant domestic version of the ICC offence). 

But whether it was the Netherlands or the ICC prosecuting, there still needs to be an element of the crime that occurs on the territory of a state party. Thus, the offences under Art. 70 need to be examined. So far, at the ICC, the most relevant offences have been related to ‘witness tampering’. This conduct is prohibited by subsections (1)(a) -(c) of Art. 70:

a) Giving false testimony when under an obligation […] to tell the truth; 

b) Presenting evidence that the party knows to be false or forged; 

c) Corruptly influencing a witness; obstructing or interfering with the attendance or testimony of a witness; retaliating against a witness for giving testimony; or destroying, tampering with, or interfering with the collection of evidence […]

It must be said that this kind of conduct has been a huge problem for the Court. The 2016 Open Justice Initiative Briefing Paper affirmed that witness interference had impacted ‘nearly every case’ before the Court. In Bemba II, for example, five men (Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, Narcisse Arido) were convicted of offences under Art. 70(1)(a)-(c). There are also outstanding cases in relation to Barasa and Bett (the Gicheru case was terminated following confirmation of his passing).

Nevertheless, the offences under subsections (a)-(c) do not capture the wrong under discussion here (sending a threatening letter) because they are designed to protect the evidence at trial. Instead, we need to consider subsections (d) and (e) of Art. 70 which are drafted in a way that brings a broader range of conduct into play.

(d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;

(e) Retaliating against an official of the Court on account of duties performed by that or another official.

For jurisdictional purposes, then, what is the element most likely to take place on the territory of a state party (i.e., the Netherlands)? The theory of objective territoriality requires us to identify a result element. There is no jurisprudence on this, and the Elements of the Crimes have nothing to say about these Art. 70 offences.

It could be that ‘intimidating’ or ‘impeding’ an ‘official of the Court’ is considered as the result element of the actus reus of Art. 70(1)(d). It is not clear whether any official of the Court was ‘impeded’ by the letter, which suggests a physical obstruction, so that seems less apt for present purposes. Thus, evidence that an official of the Court was ‘intimidated’ is the most likely candidate. It may be countered that the offences under subsection (d) are conduct offences and that there are no result elements attached (i.e., actual ‘intimidation’ need not be shown). Even so, it is still conduct which crosses the border in the sense that it must be communicated in fact in the Netherlands. In respect of the target of the intimidation, there can be no doubt that an ‘official of the Court’ means a representative of any of the organs of the ICC (Art. 34). It would make no sense to protect the judiciary from intimidation but not officials working in the Office of the Prosecutor or the Registry.

Note that aside from the fact that this needs to be done intentionally (Art. 30, Rule 163(1)) there is an ulterior mens rea element to the offence: ‘for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties’. However, in the case of the letter from the U.S. Senators, this does not seem problematic.

In relation to (e), the concept of ‘retaliation’ against a Court official may be taken to parallel the prohibition in paragraph Art.70(1)(c) which relates to retaliation against witnesses. The concept of retaliation suggests the application of physical force, but it may also comprise threats and other forms of intimidation. Again, the conduct must be intentional (Art. 30, Rule 163(1)). Retaliation might also be described as occurring in the Netherlands depending on the facts. Consider the following hypothetical scenario: arrest warrants are issued, the Prosecutor receives another letter that threatens sanctions or other consequences in retaliation for what he has done (i.e., issue warrants). The ‘warning’ letter from the Senators is probably not yet ‘retaliation’. It is, as Senator Katie Britt of Alabama explained, ‘a promise’ (in the form of a threat) and that is conduct that looks to change the future, not conduct that is revenge for something done in the past. Nevertheless, the offence under (e) may become more relevant depending on the course of events. 

Finally, there is another requirement in (e) which is that the retaliation must be ‘on account of duties performed’ by an official of the Court. As such, this suggests that there must be evidence of causal link between the retaliation (whatever form that takes) and the prior duties performed. If the hypothetical retaliation scenario above were to come to pass, that also would not be very problematic. 

Conclusion

This short post was designed to demonstrate that an application of basic principles of criminal jurisdiction operate to establish jurisdiction in the case of the U.S. Senators sending threatening letters to ICC officials. The ICC and the Netherlands have jurisdiction over conduct which qualifies as one of the Art. 70 offences so long as they may be interpreted as resulting on the territory of a state party. In this case, the intimidation was communicated in the Netherlands, a state party, and that would suffice to establish territorial jurisdiction either because someone was intimidated as a result of receiving the letter or because the conduct of ‘intimidation’ is complete in the Netherlands. It may also be the case that the U.S. has jurisdiction and in principle the Senators could be indicted before their national courts. 

Finally, it is very unlikely that the Senators would ever be indicted but the point in this post was to help dispel the idea that nationals of non-party states are completely beyond the jurisdictional reach of the ICC, and to explain how this might be relevant in relation to the current situation where US Senators are sending threatening letters to the Court. It bears repeating that it is a good thing that there are legal consequences for non-party nationals intent on intimidating or impeding ICC officials with the purpose of influencing the Court’s decision-making process. It is to be hoped that state parties understand this and that they will provide the Court with moral and political support in respect of any threats its officials may receive in the future.