Update: on April 2, 2021, the Biden administration revoked the Executive Order. Advocates welcomed the decision, but urged that the investigations into war crimes and crimes against humanity in Palestine and Afghanistan, including of U.S. torture, must now proceed, and the United States must reset its relationship with the ICC and justice issues more broadly. See the Center for Constitutional Rights press statement.
President Donald Trump issued Executive Order 13928 on June 11, 2020, declaring a national emergency and authorizing asset freezes and family entry bans against International Criminal Court (ICC) officials. The Executive Order specifically states that a declaration of an "unusual and extraordinary threat to the national security and foreign policy of the United States" exists because of the ICC's "assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor's investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States government and allied officials to harassment, abuse, and possible arrest."
On September 2, 2020, the United States imposed sanctions on the ICC prosecutor, Fatou Bensouda, and another senior ICC official, Phakiso Mochochoko. Both Bensouda, a national of the Gambia, and Mochochoko, a national of Lesotho, were added to the Specially Designated Nationals and Blocked Persons List (the SDN List) through authority created by the Executive Order. This list is maintained by the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC). Any person making a contribution of "services" to persons designated for sanctions – the Prosecutor or her senior aide – could be subject to civil and criminal penalties.
Why are the Sanctions Against the ICC Harmful?
The sanctions are one example of the U.S.'s efforts to avoid accountability through threats
The Trump administration has repeatedly threatened to block ICC investigations in Afghanistan and Palestine that could uncover conduct by U.S. and Israeli nationals. The U.S. revoked the ICC prosecutor's visa in 2019 in retaliation for what was then a potential investigation in Afghanistan. On May 15, 2020, U.S. Secretary of State Mike Pompeo vowed to "exact consequences" if the ICC "continues down its current course" – that is, if the court moves forward with Palestine investigation and U.S. torture investigations. The sanctions can be applied on a "case-by-case basis" in relation to ICC investigations of U.S. personnel or personnel of U.S. allies.
The sanctions give wide discretion to the U.S. government to add anyone to the SDN list
The executive order does not name "persons"—that is individuals or entities—but the U.S. government has discretion to list additional persons pursuant to the order. The threshold needed to sanction additional individuals or organizations is fairly low. Therefore, anyone who has "directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel without the consent of the U.S." could be implicated. The executive order specifies that only "foreign persons" can be added to the SDN List. However, the impact of the sanctions program on dual-U.S. citizens—whether they would qualify as "foreign persons"—is unclear.
Human rights defenders, including U.S. citizens, could face civil and criminal penalties under the sanctions
U.S. persons or entities located anywhere in the world would not be able to transact with or provide services to either Bensouda or Mochochoko without facing "significant civil or criminal penalties," essentially curtailing efforts to move investigations forward at the ICC and thwarting justice for victims of serious crimes. U.S. "persons" are defined under the executive order as "any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States." Prohibited interactions with a designated person also subject an individual or entity to a criminal fine of up to $1,000,000, and for individuals, up to 20 years in prison. While U.S. persons cannot be designated under the executive order, they can be subject to these penalties for violating the order, becoming potential targets for enforcement.
U.S. sanctions have delayed critical investigations at the ICC
The sanctioning of the Prosecutor and her senior aide has directly and indirectly negatively impacted the work of the ICC, although not as drastically as the U.S. might have hoped, as the ICC affirmed jurisdiction over the Palestine Situation in February 2021 and the Prosecutor proceeded to announce the opening of that investigation in March 2021. However, civil society organizations, investigators, lawyers and victims have all had to weigh their interactions with the ICC and the Prosecutor's office against the threat of inclusion on the sanctions list or being subject to civil and criminal penalties. Two lawsuits have been filed seeking to declare the Executive Order unconstitutional because it has caused the organizations and individuals to cease cooperation and engagement with the Prosecutor and therefore violates their freedom of speech and advocacy. In January 2021, a federal judge agreed, declaring that "the proffered national security justification for seeking to prevent and potentially punish Plaintiffs' speech is inadequate to overcome Plaintiffs' and the public's interest in the protection of First Amendment rights." Notably, the protection against enforcement of civil and criminal penalties only extended to the named plaintiffs, leaving intact the chilling effect for many impacted groups and organizations operating in support of the Afghanistan and Palestine situations.
Select Statements in Support of Rescinding ICC Sanctions
- June 11, 2020 - Oppose Trump Administration Measures against the International Criminal Court
- June 2020 - Statement of Lawyers & Legal Scholars Against US Sanctions on ICC Investigators of Atrocities
- July 17, 2020 - In Face of Attacks, Support the ICC’s Independence, Integrity and Mandate, Open letter to President Kwon
- January 27, 2021 - NGOs to Biden: support access to justice for all by rescinding Trump-era executive order impeding ICC’s work
- February 17, 2021 - More than 70 Non-Governmental Organizations, Faith-Based Groups, and Academic Institutions Call for the Biden Administration to Repeal ICC Sanctions
- September 17, 2020 - Statement of ABA President Patricia Lee Refo Re: U.S. Sanctions on International Criminal Court Staff
- November 30, 2020 - New York City Bar Association Statement Condemning the Implementation of Sanctions against Senior Staff of the International Criminal Court
- June 10, 2020 - Joint Statement by UN Security Council Members that are States Parties to the Rome Statute of the International Criminal Court
- November 2, 2020 - Statement by Ambassador Christoph Heusgen on behalf of 74 States Parties to the Rome Statute in support of the International Criminal Court on the occasion of the ICC Report to the General Assembly
- September 2, 2020 - International Criminal Court condemns U.S. economic sanctions
- September 9, 2020 - The Trust Fund for Victims: U.S. Sanctions Could Deprive Victims of Reparative Justice