Debriefing: Our 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. What has happened in that case, I was there through our European Centre for Law and Justice. Our ECLJ has standing with all of these international tribunals.

We’ve actually been involved with ICC litigation for a decade. This particular one is really a big one because in this case 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. That was one thing I will say that 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 twenty-three, maybe twenty-five 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 to 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. We immediately went to work on refining the arguments. You’re refining the arguments literally until the arguments are finished until the night before. You do that because every word makes a difference.

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: We had one of our former law clerks who is now practicing law in Europe. We had 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. 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 the work we did at the ICC by listening to the entire episode here.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), one of the most prestigious law firms in the country. He is an accomplished Supreme Court advocate, renowned expert on religious liberty, a number 1 New York Times-bestselling author, and a respected broadcaster. Jay Sekulow is an attorney with a passion for protecting religious liberty – freedom – democracy. For nearly a quarter of a century, he’s been on the front lines – working to protect religious and constitutional freedoms in the courts, in Congress, and in the public arena. At the Supreme Court of the United States, Jay Sekulow has argued 12 cases – including several landmark cases which have become part of the legal landscape in the area of religious liberty litigation.

Used with the permission of the American Center for Law and Justice.