Argument Continued

The Obama Administration continued and increased the cooperation between the United States and the Court begun during the Bush Administration. Although President Obama did not seek Senate approval to ratify the Rome Statute, his Administration participated in the Assembly of State Parties and sought to support certain of the Court’s investigations, consistent with restrictions in ASPA.

Somewhat surprisingly, given its anti-international bent, the Trump Administration ignored the Court for its first year in office until the Prosecutor applied to open her investigation of the United States in November 2017. Bensouda was under significant pressure from African countries to show that the Court was not simply an “African Criminal Court” and was willing to investigate powerful countries like the United States.

It’s unfortunate for the Court that the Prosecutor chose to pick a fight with the United States, and her timing could not have been worse. The threat by an international court to investigate the U.S. military and the CIA was too much political red meat for the Trump Administration to resist in a U.S. election year. Trump’s appointment of John Bolton as National Security Advisor in March 2018 guaranteed a nasty confrontation between the United States and the Court. Although Bolton could easily have focused on Iran, North Korea, China, Russia, or other international adversaries, he chose the ICC as the sole focus of his first major public address. In his speech to the Federalist Society in September 2018,8 he blasted the Court as “ineffective,” “unaccountable,” “deeply flawed” and “outright dangerous.” He said the ICC unacceptably threatens American sovereignty and U.S. national security interests. He criticized the ICC prosecutor’s request as “utterly unfounded” and “unjustifiable.” He said that the United States will “use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.” Breaking with the previous thirteen years, he insisted that the United States would not cooperate with the ICC and would provide no assistance to the Court. And if the ICC “comes after the United States,” he said, the United States would “fight back” by banning its judges and prosecutors from entering the United States, freezing their assets, and prosecuting them in the U.S. criminal justice system. The United States would do the same for “any company or state that assists an ICC investigation of Americans.”9

I should note here that, while I think the Trump Administration’s rhetorical and legal assault on the Court and the Prosecutor were unbalanced and likely counterproductive, any U.S. Administration, Republican or Democratic, would have responded forcefully to an ICC request to open an investigation of the United States. Biden Administration officials can be expected to reject the Afghanistan investigation as outside the scope of the Rome Statute.

Seven months after John Bolton’s speech, in April 2019, the Court’s Pre-Trial Chamber (PTC) rejected Bensouda’s request after concluding that an investigation “would not serve the interests of justice.”10 The PTC noted that the prospects for a successful investigation and prosecution were extremely limited and that the Court should prioritize activities that would have better chances to succeed.11 Although the PTC’s decision was a reasonable interpretation of the Rome Statute, the decision was criticized by many as a cowardly capitulation to the Trump Administration’s threats. Undaunted, the Prosecutor appealed to the Court’s Appeals Chamber, which in March 2020 reversed the PTC and authorized Bensouda to proceed.12 Trump promptly retaliated in June with Executive Order 1392813 and the Treasury Department subsequently designated Bensouda and another ICC official for sanctions.14

Although I argued at the time that the Court and the Prosecutor should avoid a fight with the Trump Administration,15 it is understandable that neither was willing to back down in the face of Trump’s threats. But having now made the ideological point that the Court will not be cowed, and with the inauguration of a new President who undoubtedly would prefer to support the Court for the next four years than fight with it, now would be a very good time for the Prosecutor to act more pragmatically.

Bensouda surely recognizes that an investigation of the United States for actions nearly twenty years ago is unlikely to succeed and will waste the Court’s limited resources, already stretched far too thin. Indeed, if the Prosecutor were to go forward, whom should she investigate? Her application lists dozens of offenses allegedly committed by U.S. armed forces and CIA personnel. Should she focus on the military commanders and civilian Defense Department officials responsible for the abuse of detainees in Afghanistan? Should she pursue the Director of Central Intelligence (a Democrat who had been appointed to his position by President Clinton) and numerous CIA officials who proposed and implemented the controversial CIA interrogation program? Should she indict the Attorney General and Department of Justice lawyers who wrote or endorsed the disputed legal opinions upon which executive branch officials relied? (For the record, when I was Legal Adviser, I disagreed in writing with the Department of Justice analysis, arguing that the CIA program was not consistent with Common Article 3 of the Geneva Conventions.)16 How about the President and Vice President, who accepted the recommendation of the CIA Director and the legal advice of the Attorney General? Or, perhaps, she could go after the dozens of members of Congress from both parties who oversaw and appropriated money for the program? The Prosecutor surely knows there is no possibility that any U.S. official will ever be arrested and prosecuted in the Hague. And if the likelihood of prosecutions is zero, is conducting a multi-year investigation of twenty-year-old offenses worthwhile to prove a point?

Some supporters of the Court will argue an investigation of the United States is necessary to demonstrate that there is no impunity even for powerful countries. This is an understandable argument, but it is not pragmatic. Conducting an investigation of hundreds of senior U.S. officials would be an enormous distraction for the Prosecutor and the Court, both of which are already struggling with many other problems, and would prevent them from concentrating on other more serious cases with higher likelihoods of success. It would prevent a U.S. Administration predisposed to support the Court from helping the Court with other investigations. And it would force countries that are friends of the Court and the United States to choose between the Court or good relations with the United States.

Although Bensouda has received approval from the Appeals Chamber to open an investigation of the United States,17 she (or her successor) has legitimate reasons under the Rome Statute not to pursue it. First, although the Prosecutor concluded that the allegations of detainee abuse against the United States satisfied the Rome Statute ’s gravity requirement, she could also conclude that they are not as serious in number or gravity as the numerous acts of murder and rape committed in other countries that are subjects of ICC investigations. The Court was created to investigate and prosecute the “most serious crimes” of concern to the international community. It simply does not have the capacity to investigate every offense within the scope of the Rome Statute. Second, the Prosecutor could have concluded (and could still conclude) that, under Article 17 of the Rome Statute,18 the ICC does not have jurisdiction because the United States has conducted investigations of the allegations of detainee abuse by U.S. military personnel and the CIA. Indeed, Bensouda’s conclusions with respect to the United States rely primarily on thousands of pages of public findings and conclusions from investigations already conducted by the United States, including the Senate Intelligence Committee, the Senate Armed Services Committee, the Church Report, the Fay Report, the Jacoby Report, the Schlesinger Report, and the Department of Justice’s OPR Report. (The United States conducted other non-public investigations as well, including by Department of Justice Special Counsel John Durham and the CIA inspector general.) The Prosecutor concluded, however, that these numerous U.S. investigations were not sufficiently comprehensive, in part because President Obama chose not to investigate Executive branch officials who had relied on legal advice from the Department of Justice. Bensouda did state that she would:

[C]ontinue to assess the existence of national proceedings for as long as the situation remains under investigation, including in relation to any additional information that may be provided by relevant States.19

This leaves the door open for her to conclude that the United States has conducted sufficient investigations, even if not every U.S. official has been investigated. Finally, the Prosecutor would also be justified in concluding, under Article 53(1)(c) of the Rome Statute, that in light of the unlikelihood of a successful prosecution by the Court and the need to prioritize the Court’s resources, it would not “serve the interests of justice” to proceed with an investigation. The PTC reached this conclusion, and the Prosecutor could make this same determination, especially after factoring in additional information provided by the Biden Administration.

The recommendations of the recent September 2020 report of Independent Experts on the Court support suspending the investigation of the United States.20 The report states that:

[The Experts] repeatedly heard concerns that the Court should focus on a narrower range of situations, and limit its interventions to the extent possible, focusing on situations of the highest gravity and on those most responsible for the crimes. While it is a prospect that would be disappointing for many, and further restrict the already limited jurisdiction of the Court, the current situation is unsustainable having regard to the limited resources available.21

The Experts go on to recommend that:

The Prosecutor should adopt a higher threshold for the gravity of the crimes alleged to have been perpetrated.22

They also argue:

Feasibility-related factors should be seriously considered after the opening of an investigation. Should more situations reach the investigation stage without sufficient resources available to conduct serious investigations, the OTP should hibernate deprioritised investigations.23

Bensouda may be reluctant to change course and announce that she has decided not to pursue her investigation of the United States after all, but it would make sense for her at minimum to hit the “pause” button by announcing that she is suspending her investigation until she receives more information from the United States about the investigations it has already conducted. The Prosecutor apparently held some discussions with Obama Administration officials, and she should allow Biden officials to describe the actions the United States has taken in greater detail.

Bensouda may be tempted to push Biden officials to open new investigations in order to satisfy her desire for perfect complementarity. But the Biden Administration will already have its hands full with investigations of unlawful actions by President Trump and Trump Administration officials. The Prosecutor must recognize that it would not be politically sustainable for a Biden Justice Department to conduct far-reaching and controversial investigations of senior officials (including the Presidents) in both the Bush and Trump Administrations. Although she concluded in 2017 that the numerous investigations undertaken by the United States were insufficient,24 in light of the Court’s increasingly stretched resources and the recommendations of the Independent Experts, she would now be justified in reaching a different conclusion.

For his part, President Biden should take the first step towards a rapprochement by rescinding President Trump’s misguided Executive Order 13928 authorizing the imposition of sanctions on the ICC and by lifting the sanctions on Bensouda. At the same time, Biden Administration officials should communicate directly to the Prosecutor and through intermediaries that the United States is prepared to resume support for the Court, but only if the Court ceases its unnecessary investigation of the United States.

The Prosecutor will then have a choice: She could continue an ideological crusade by conducting an investigation of the United States that is likely to go on for years, strain the Court’s resources, and ultimately prove unsuccessful, all while antagonizing a U.S. Administration that is prepared to support the Court during a period in which the Court is urgently in need of help and reform. Or she could take a more pragmatic approach by focusing on investigations of greater gravity that are more likely to succeed and resuming the constructive working relationship between the Court and the United States that existed from 2005–2017.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020) [hereinafter EO 13928], available online. ↩

2. 2.

   Press Release, U.S. Dept. of State, Letter from John Bolton, Under Secretary of State, to Kofi Annan, U.N. Secretary General (May 6, 2002), available online. ↩

3. 3.

   2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107–206, §§ 2001–2015, 116 Stat. 820, 899–909 (Aug. 2, 2002), available online.

   (The American Service-Members’ Protection Act (ASPA) was passed as Title II of this legislation and codified at 22 U.S.C. §§ 7421–7432). ↩

4. 4.

   Steven R. Weisman, U.S. Rethinks Its Cutoff of Military Aid to Latin American Nations, N.Y. Times, Mar. 12, 2006, available online. ↩

5. 5.

   John B. Bellinger, III, Legal Advisor, Remarks at George Washington Law School, International Courts and Tribunals and the Rule of Law (May 11, 2006), available online; John B. Bellinger, III, Legal Advisor, Remarks at the DePaul University College of Law, The United States and the International Criminal Court: Where We’ve Been and Where We’re Going (Apr. 25, 2008) [hereinafter Bellinger’s DePaul Remarks], available online; John B. Bellinger, III, Legal Advisor, Remarks at the Fletcher School of Law and Diplomacy, U.S. Perspectives on International Criminal Justice (Nov. 14, 2008), available online. ↩

6. 6.

   Jess Bravin, U.S. Accepts International Criminal Court, Wall St. J., Apr. 26, 2008, paywall. ↩

7. 7.

   Bellinger’s DePaul Remarks, supra note 5. ↩

8. 8.

   John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), transcript available online, video available online (begins at 1:24:07). ↩

9. 9.

   Id. ↩

10. 10.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩

11. 11.

    Id. ↩

12. 12.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020) [hereinafter ICC Authorization of Afghanistan Investigation], available online. ↩

13. 13.

    EO 13928, supra note 1. ↩

14. 14.

    Michael R. Pompeo, Secretary of State, Actions to Protect U.S. Personnel from Illegitimate Investigation by the International Criminal Court, U.S. Dept. of State (Sep. 2, 2020), available online. ↩

15. 15.

    John B. Bellinger, III, The Trump Administration Throws Down the Gauntlet to the ICC. The Court Should Decline The Challenge., Lawfare (Sep. 10, 2018), available online. ↩

16. 16.

    Letter from John B. Bellinger, III, Legal Advisor, U.S. Dept. of State, to Steven G. Bradbury, Actg. Asst. Atty. Gen., Dept. of Justice, Response to OLC Draft Opinion on Enhanced Interrogation Techniques (Feb. 9, 2007), available online. ↩

17. 17.

    ICC Authorization of Afghanistan Investigation, supra note 12. ↩

18. 18.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online. ↩

19. 19.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorisation of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017) [hereinafter OTP Request for Authorization], available online. ↩

20. 20.

    Independent Expert Review, ASP, International Criminal Court and the Rome Statute System (Sep. 30, 2020), available online. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    OTP Request for Authorization, supra note 19. ↩

25. Suggested Citation for this Comment:

    John B. Bellinger, III, What President Biden and the ICC Prosecutor Should Do to End the United States–ICC Conflict, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions#Bellinger.

    Suggested Citation for this Issue Generally:

    Is It Appropriate or Effective for the United States to Attempt to Influence the Actions of the International Criminal Court by Means of the Sanctions Set Forth in President Trump’s June 2020 Executive Order?, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions.

Argument Continued

The Prosecutor’s request to open an investigation then began to wind its way through the Court’s review process before one of the Pre-Trial Chambers. In April 2019, a Pre-Trial Chamber determined that it would not be in the interest of justice to proceed with the case in Afghanistan, observing that due to limited cooperation from governments including the United States:

[I]t is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation or otherwise positively contributing to it.7

While the questionable legal reasoning behind this decision is beyond the scope of this comment, the result was to freeze the Prosecutor’s attempt to investigate the situation in Afghanistan pending appeal.8

In March 2020, the Appeal’s Chamber reversed the decision of the Pre-Trial Chamber, finding that the Pre-Trial Chamber should not have based its review on a determination of the “interests of justice” and that there was a reasonable basis to believe that crimes within the Court’s jurisdiction had been committed in Afghanistan.9 By authorizing an investigation, the Appeals Chamber opened the door for the Prosecutor to investigate potential U.S. war crimes in Afghanistan.10

The Trump Administration, not surprisingly, has taken a harsh and escalating line against potential investigation of U.S. conduct. In 2017, when the Prosecutor first sought approval of a potential investigation, a U.S. State Department Official noted:

Our view is clear: an I.C.C. investigation with respect to US personnel would be wholly unwarranted and unjustified.11

In September 2018, then National Security Advisor John Bolton issued a scathing critique of the Court in a speech to the Federalist Society. With specific reference to the Afghan investigation, Bolton noted:

The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.12

When the Prosecutor sought to appeal the Pre-Trial Chamber’s rejection of her investigation, the United States revoked her visa, preventing her from traveling to or through the United States. In the words of Secretary Pompeo:

These visa restrictions will not be the end of our efforts. We are prepared to take additional steps, including economic sanctions if the I.C.C. does not change its course.13

In March 2020, Pompeo described the Appeal’s Chamber decision allowing the investigation to proceed, as a “truly breathtaking action by an unaccountable, political institution masquerading as a legal body” and pledged that the United States “will take all necessary measures to protect our citizens from this renegade, unlawful, so-called court.”14

Sanctions Strike at the Court and the Rule of Law

The U.S. sanctions imposed on the ICC and its leadership in spring 2020 were intended to fulfill Pompeo’s promise and, perhaps, to more actively speed Bolton’s prediction of the ICC’s death. Given that the Trump Administration’s disengagement from the Court significantly decreased United States’ ability to shape ICC policy through diplomacy or within the Assembly of State’s Parties, Trump had few levers of influence remaining. Hence, the Administration turned to the tool kit of sanctions. Through Executive Order 13928 of June 11, 2020 the Trump Administration sought “to impose tangible and significant consequences on those responsible for” alleged “ICC transgressions.” The President’s Executive Order determined that:

[The ICC’s] illegitimate 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 the United States military, intelligence and other personnel in or relating to Afghanistan […] threaten to infringe upon the sovereignty of the United States and impede the critical national security and foreign policy of the United States.15

While the United States has had a complicated history with the ICC—from President Bill Clinton’s signing of the Rome Statute to President George Bush’s early efforts to undermine the Court—the new sanctions go further than any past U.S. actions in their direct attack on the ICC and its staff. Bush’s “unsigning” of the Rome Statute was largely symbolic.16 So, too, was the American Servicemembers’ Protection Act that threatened an invasion of the Netherlands to rescue any U.S. citizens that might be prosecuted in The Hague.17 President Trump’s June 2020 sanctions are, however, a much more tangible and direct attack on the ICC and the rule of law more generally. This new sanctions regime draws strong parallels to those imposed by the United States in the past against terrorist groups, dictators, and human rights abusers.18 In fact, the Executive Order on ICC sanctions parrots text directly from an Executive Order addressing the Maduro regime in Venezuela and a similar sanctions regime against North Korea.19 Those same sanctions are now being used not to protect U.S. national security, but to undermine legal institutions, international lawyers, and human rights defenders.

President Trump’s sanctions directly target individual lawyers and investigators working for a legitimate international organization undertaking lawful actions under its statute. More specifically, the sanctions authorize the seizure of property of to-be-designated ICC officials who undertake investigation or prosecution of U.S. personnel and any other foreign nationals who are deemed to have assisted such efforts. The Executive Order authorizes the Secretary of State to designate any foreign persons who have “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States” as subject to property seizure.20 The order also allows for the designation of any individual who materially assisted such prosecutions. So too, the new sanctions prohibit the entry into the United States of such individuals and their immediate family members.21

While the Executive Order only established the legal basis for the imposition of sanctions, nearly three months after its issuance Secretary Pompeo made the first sanctions designations. He designated ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, Head of the Office of the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division (JCCD) of the Office of the Prosecutor. These targets are not surprising given that the Prosecutor has been the driving force behind the Afghanistan investigation and that the JCCD unit within the Office of the Prosecutor is responsible for managing relations between the Prosecutor’s office and national governments. These designations represent a direct attack on both the Office of the Prosecutor itself and the individuals who lead that office. Through the serious threat of asset freezing, they seek to influence, interfere with, and undermine the independence of one of the most important branches of a legitimate, treaty-based international institution. It is exactly such interference that the Rome Statute sought to protect against in structuring an Office of the Prosecutor that “shall act independently as a separate organ of the Court.”22

A National Emergency …. Really?

As a matter of U.S. law, the Executive Order presents at least two significant problems: the lack of the prerequisite underlying national emergency and an overbroad reach. Trump’s sanctions order invoked emergency powers pursuant to the International Emergency Economic Powers Act, the National Emergencies Act, the Immigration and Nationality Act of 1952, and section 301 of Title 3 of the United States Code. Each of these authorities requires a preliminary determination of a national emergency and/or an extraordinary threat to U.S. national security. Trump’s determination that a potential ICC investigation in Afghanistan constitutes a national emergency that poses an “unusual and extraordinary threat to the national security and foreign policy of the United States” is downright pharisaical.23 After all, the Administration had already determined, in John Bolton’s words, that “the ICC is already dead to us.”24

In a moment of real national and global crises—ranging from the COVID-19 pandemic, to police misconduct, to the highest unemployment rate in a generation—the fact that President Trump “declare[d] a national emergency to deal with” the threat posed by the ICC investigation in Afghanistan is simply not supported by fact. An underfunded Court with relatively little to show for two decades of work trying to end impunity would likely be surprised to learn that, in Trump’s view, it has the power to:

[I]mpede the critical national security and foreign policy work of United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.25

Admitting that a duly authorized investigation of U.S. conduct in Afghanistan by the ICC constitutes such a threat is both a recognition of the power of international law and a suggestion that the United States has something to hide. While the President does have wide ranging national security authorities, his power to impose sanctions is not unlimited.26 The lack of any factual predicate whatsoever for the determination that the ICC’s investigation constitutes a threat to U.S. national security calls into question the validity of the sanctions regime under the heads of authority invoked in the President’s Executive Order.

Beyond the questionable invocation of a national security emergency, Trump’s Executive Order presents a second constitutional concern: overbreadth. Pursuant to the Executive Order, sanctions can be placed on any person who has “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of” the ICC’s investigation of U.S. personnel.27 The sanctions language is sufficiently broad that it could, in theory, apply to a victim or witness who provided information incidental to the Court’s investigation, or an academic whose scholarship the Court relied upon in framing a legal argument. It would certainly seem to apply to a lawyer, fulfilling her duty to represent a client by filing a brief with or making an appearance before the ICC.28 In so doing, the sanctions regime poses the real risk of chilling the freedom of speech, limiting representation, and undermining, rather than advancing, human rights.

Moreover, even if one could somehow make the case that an ICC investigation of U.S. conduct in Afghanistan was a threat to national security, there is no conceivable way that the kinds of material support for such an investigation, covered by the President’s Executive Order, themselves constitute such a threat, or that the Executive Order is a legitimate response thereto. To deem a victim’s truthful testimony a threat to national security is simply inaccurate, no matter how broad the President’s authorities. Should further designations be made under the order based on material assistance, there is the very real prospect of a constitutional challenge to the Executive Order itself.

Empty Threats, Bad Strategy

While the sanctions imposed on ICC officials certainly upped the U.S. rhetorical attack on the ICC, they are unlikely to achieve Trump’s objective of blocking the investigation of U.S. conduct in Afghanistan or Bolton’s goal of “letting the ICC die on its own.” As noted above, the design of Trump’s sanctions regime is based almost verbatim on past sanctions targeting terrorists and corrupt dictators. Yet, unlike most corrupt dictators or terrorist organizations, individuals who choose to work for the ICC, or in international human rights more generally, are motivated by conscience, not wealth.29 They rarely have significant assets in U.S. bank accounts or meaningful real property for the United States to seize. More than three months after the designation of Bensouda and Mochochoko, there is no indication that the Treasury has found any such assets subject to U.S. jurisdiction. And if the goal of the sanctions is to chill victims or witnesses of crimes in Afghanistan from ultimately testifying before the ICC, that too is unlikely to be successful. How many potential victims or witnesses are likely to have assets subject to seizure?

Ultimately, the threat of asset seizure under this sanctions regime will do little to deter the Court’s investigation or individuals’ cooperation with the Court. Even blocking ICC employees from entering the United States will have minimal impact. The new sanctions themselves were not responsible for preventing Bensouda from traveling to the United States given that her U.S. visa had already been revoked more than a year earlier. Effective investigation of crimes in Afghanistan more than a decade ago does not require on-the-ground presence of ICC officials in the United States today.

Not only are Trump’s sanctions a bad strategy for advancing U.S. interests, they are likely to backfire. Given the moral compass of most human rights advocates and international criminal prosecutors, treating them like terrorists under this sanctions regime will more likely be a call to action under the law than an effective deterrent of legal investigation. The spine of individuals who have chosen careers in international criminal justice—whether at the most junior levels or as ICC judges or prosecutors—essentially immunizes them from the kinds of threats inherent in Trump’s sanctions.30 So too, those called to a career in international criminal justice are likely to channel their frustration with U.S. threats into ever more diligent, methodical investigation, rather than cause them to walk away from a prosecution.

Not only are individuals subject to sanctions likely to redouble their efforts, the Court as an institution is likely to respond to sanctions by asserting its independence from American influence. The decision of the Pre-Trial Chamber to block an Afghanistan investigation was widely criticized in the human rights community, with many suggesting that the Court was buckling to U.S. pressure not to proceed.31 As Amnesty International observed after the April 2019 decision of the Pre-Trial Chamber:

[T]he OTP must resist any temptation to view this decision as a convenient and largely guilt free way out of conducting a daunting and politically fraught investigation or an opportune basis to close other preliminary examinations that are perceived as too politically sensitive or costly non-priorities.32

The subsequent Appeals Chamber’s reversal of that decision in March 2020 can be viewed as an effort to assert the Court’s independence and willingness to resist U.S. pressure. In the wake of U.S. sanctions, the Court has even less room to drop the Afghanistan case, limit the scope of investigation, or decide not to indict U.S. defendants. If it does so, it will again be seen as succumbing to U.S. pressure, sacrificing both credibility and legitimacy. Hence, if the sanctions have any impact at all, they are likely to lead the Prosecutor and the Court itself to double down on Afghanistan.

Sanctioning the ICC is not just silly, it is also dangerous. In a world in which the use of force is difficult and often ineffective, carefully crafted and strategically applied sanctions are a key tool of U.S. power.33 For sanctions to work, however, they must be used judicially and viewed as broadly legitimate.34 The overuse of sanctions and, particularly, the application of sanctions without broad international support runs the risk of undermining their effectiveness. Overuse of sanctions creates incentives for actors to find workarounds to avoid the economic pain. Sanctions that are seen as illegitimate fail to garner international cooperation for enforcement and compliance. Applying tough sanctions against the personnel of a legitimate and broadly supported international organization undermines the broader efficacy and legitimacy of the tool for times when sanctions could actually advance U.S. national security.

Other, Better Tools

So, what should Trump have done instead of authorizing sanctions against the ICC if he wanted to prevent the Court from investigating actions by U.S. personnel in Afghanistan? He could have taken two meaningful steps: a real investigation of potential crimes in Afghanistan and effective diplomacy with the ICC.

First, the Trump Administration (as well as its predecessors) should have investigated and prosecuted any crimes that U.S. personnel may or may not have committed in Afghanistan years ago. The Rome Statute makes clear that the Court is a backstop to national jurisdictions and that it will not investigate or prosecute when national governments have held themselves and their soldiers accountable. Pursuant to Article 17 of the Rome Statute, a case becomes inadmissible if it is or has been “investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”35 In fact, the ICC investigation of U.S. conduct in Afghanistan is only possible because, in the words of the Pre-Trial Chamber:

As regards […] investigation efforts at the domestic level in the U.S., […] the Chamber notes that the information does not show that criminal investigations or prosecutions have been conducted on the incidents referred to and relied upon by the Prosecution.36

Had the United States—under Presidents Bush, Obama, or Trump—made justice for past mistakes in Afghanistan a priority, including by investigating and prosecuting senior officials who may have ordered the crimes that occurred in Afghanistan, the ICC would have been stopped in its tracks. Instead, the U.S. military justice system only prosecuted a handful of lower-level soldiers.

If U.S. forces did not commit crimes in Afghanistan within the jurisdiction of the Court, the United States simply must submit to the ICC evidence of a genuine investigation with respect to both military and intelligence agency activities. Under the Rome Statute, states—even those not party to the Statute —have ample opportunity to challenge admissibility by showing a genuine investigation and/or prosecution has occurred.37 If, on the other hand, there are violations of the laws of war in Afghanistan by U.S. forces that have yet to be adequately investigated and prosecuted, it is not too late for the United States to reverse course. Throughout the course of an investigation, the Court must satisfy itself that national investigations have not been undertaken. In the words of the Pre-Trial Chamber, “it is […] one of the most compelling duties of the Prosecution to continue verifying the progress of national proceedings during the course of investigations.” Should evidence of U.S. investigations and prosecutions that cover “the same individuals and substantially the same conducts as alleged in the proceedings before the Court” begin, the Court will have to declare the case inadmissible and defer to national prosecutions.38

A second element of a far more effective strategy involves astute diplomacy and engagement with the ICC. At least until the Trump Administration, there was still room both in Washington and The Hague for productive diplomacy and even cooperation. After all, the United States and the ICC share deep common interests, including a commitment to the rule of law, atrocity prevention, and human rights promotion. Diplomatic engagement around these shared goals, even if circumscribed, creates incentives for the Court to cooperate with the United States, to hear and perhaps even respect U.S. views and interests. Yet, when diplomacy and engagement break down, as they have over the past four years, neither side has any reason to listen to the other, much less accord some deference in choices involving prosecutorial discretion or treaty interpretation.

While the United States and the ICC have long had a troubled past, the Court has sought to retain as productive a working relationship with the United States as possible. That goal was understandable, given the see-saw nature of U.S. engagement with the ICC. Back in 2000, President Clinton signed the Rome Statute establishing the Court.39 During President Bush’s first term, the United States made clear that it would not formally join the Court and actively sought to undermine its work by pressuring other countries to sign agreements barring them from sending Americans to be prosecuted or face aid cutoffs.40

But, during President Bush’s second term, the United States and the ICC saw a rapprochement when the United States allowed the U.N. Security Council to give the Court authority to prosecute the perpetrators of the genocide in Darfur, Sudan.41 Under President Obama, relations warmed still further as the United States engaged more closely with the Court and even offered assistance with evidence collection.42 In 2010, State Department Legal Advisor Harold Koh announced his intention to meet:

[With the] prosecutor at the ICC to examine whether there are specific ways that the United States might be able to support the particular prosecutions that already underway in the Democratic Republic of Congo [and] Sudan.43

Some such evidence became part of the prosecutor’s investigatory files.44 While the United States never ratified the Rome Statute, the ICC knew it was better off with tacit support from and a good working relationship with the United States

The ICC’s hopes for a productive working relationship with the United States quickly dimmed under the Trump administration. Speaking at the U.N. General Assembly in 2018, President Trump proclaimed:

As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.45

Not surprisingly after such statements, the Court saw little reason to remain deferential to the United States or to seek its support.

It is often better to have a court on your side than against you. For decades, the institutions of international justice have sought to preserve their relationship with the United States and made prosecutorial and legal choices to avoid direct conflict whenever possible.46 The Pre-Trial Chamber’s decision in April 2019, however legally questionable, may have been a last-ditch effort to do just that. The Appeals Chamber decision makes clear that the Trump administration has now fully squandered whatever good will remained between the United States and the ICC. Instead of seeking U.S. support through diplomacy and shared mutual interest, the ICC has set its sights more actively on the United States

A New Administration, a New Approach?

With the election of Joe Biden, there is a real opportunity for a rapprochement between the United States and the ICC. President-Elect Biden has committed to restoring values to American foreign policy, notably through a commitment to human rights and democratic values at home and abroad.47 The Afghanistan case aside, the ICC fits well with Biden’s rights and values agenda. As Presidents Clinton, Bush, and Obama saw, or came to see, the United States and the ICC share many common interests around advancing human rights, preventing atrocities, ending impunity, and ensuring the rule of law. The ICC can be useful to the United States and the United States can be useful to the ICC. It would be naive to suggest that the Biden Administration could—or even should—seek ratification of the Rome Statute. But, reestablishing a productive, diplomatic relationship with the ICC where interests align is possible and should be a priority.

After the damage done by President Trump, repairing the relationship between The Hague and Washington will not be easy, particularly in light of domestic political divides in the United States and the potential for indictments of U.S. personnel in the Afghanistan case. A first key step in rebuilding that relationship must be the revocation of Trump’s counterproductive Executive Order and the removal of ICC officials from the designated sanctions list. Even without a full embrace of the ICC, the Biden Administration should view these sanctions as a direct affront to international human rights and detrimental to U.S. national interests. They fly in the face of every U.S. and international effort to protect human rights defenders and they offer a powerful example for despots around the world to follow suit.48

That said, the Biden Administration will inherit the thorny challenge of dysfunctional relationship with the ICC and a now authorized Afghanistan investigation. The best approach the Biden Administration can take is not to continue Trump’s belligerent statements and ineffective sanctions, but to begin a new era of careful diplomacy and to exercise legal defenses available within the Rome Statute. Through such diplomacy, the new Administration can signal both a willingness to work with the Court and the imperative that the Court avoid indictments of U.S. nationals. At the appropriate time, the new Administration can challenge the admissibility of the case by documenting to the Court investigations and prosecutions that the United States has already undertaken. Hopefully that evidence will suffice to render the case inadmissible. If it turns out, however, that the United States has not undertaken a full investigation of crimes potentially committed by U.S. forces in Afghanistan and subject to ICC scrutiny, we will have to look hard at our own commitment to human rights and accountability. It may, in fact, be time to undertake here at home a more thorough and comprehensive review of our own conduct in Afghanistan. Such a reckoning is, in fact, the ultimate purpose of the ICC and deeply consistent with President Elect Biden’s commitment to “repair and reinvigorate our own democracy, even as we strengthen the coalition of democracies that stand with us around the world.”49

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rick Gladstone & Marlise Simons, Prosecutor’s Move in Afghan War Inquiry May Mean Clash with the U.S., N.Y. Times, Nov. 20, 2017, available online. ↩

2. 2.

   Islamic Republic of Afghanistan: Campaign for the Rome Statute of the International Criminal Court, PGA, available online (last visited Dec. 25, 2020). ↩

3. 3.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17, Request for authorization of an investigation pursuant to article 15 (PTC III, Nov. 20, 2017), available online. ↩

4. 4.

   Eliza Grizwold, Black Hole; The Other Guantanamo., New Republic (May 6, 2007), available online. ↩

5. 5.

   Presidential Executive Order 13491: Ensuring Lawful Interrogations, 74 FR 4893 (Jan. 22, 2010), available online. ↩

6. 6.

   Tim Golden, Army Faltered in Investigating Detainee Abuse, N.Y. Times, May 22, 2005, available online. ↩

7. 7.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶ 96 (PTC II, Apr. 12, 2019), available online. ↩

8. 8.

   Dapo Akande & Talita de Souza Dias, The ICC Pre-Trial Chamber Decision on the Situation in Afghanistan: A Few Thoughts on the Interests of Justice, EJIL Talk (Apr. 18, 2019), available online. ↩

9. 9.

   Press Release, ICC, Afghanistan: ICC Appeals Chamber Authorizes the Opening of an Investigation (Mar. 5, 2020), available online. ↩

10. 10.

    Id. ↩

11. 11.

    Gladstone & Simmons, supra note 1. ↩

12. 12.

    John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), transcript available online, video available online (begins at 1:24:07). ↩

13. 13.

    Marlise Simons & Megan Specia, U.S. Revokes Visa of I.C.C. Prosecutor Pursuing Afghan War Crimes, N.Y. Times, Apr. 5, 2019, available online. ↩

14. 14.

    Elian Peltier & Fatima Faizi, I.C.C. Allows Afghan War Crimes Inquiry to Proceed, Angering U.S., N.Y. Times, Mar. 5, 2020, available online. ↩

15. 15.

    Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), [hereinafter EO 13928], available online. ↩

16. 16.

    Curtis A. Bradley, U.S. Announces Intent Not to Ratify International Criminal Court Treaty, ASIL Insights (May 11, 2002), available online. ↩

17. 17.

    2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107–206, §§ 2001–2015, 116 Stat. 820, 899–909 (Aug. 2, 2002), available online.

    (The American Service-Members’ Protection Act was passed as Title II of this legislation and codified at 22 U.S.C. §§ 7421–7432). ↩

18. 18.

    Presidential Executive Order 13884: Blocking Property of the Government of Venezuela, 84 FR 152 (Aug. 5, 2019), available online. ↩

19. 19.

    Id.; Presidential Executive Order 13810: Imposing Additional Sanctions with Respect to North Korea, 82 FR 184 (Sep. 20, 2017), available online. ↩

20. 20.

    EO 13928, supra note 15. ↩

21. 21.

    Id. ↩

22. 22.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 42(1) available online. ↩

23. 23.

    EO 13928, supra note 15. ↩

24. 24.

    Bolton, supra note 12. ↩

25. 25.

    EO 13928, supra note 15. ↩

26. 26.

    Jordan Tama, Forcing the President’s Hand: How the US Congress Shapes Foreign Policy through Sanctions Legislation, 16 FPA 397 (Jul. 27, 2019), paywall, doi. ↩

27. 27.

    EO 13928, supra note 15. ↩

28. 28.

    Susan Akram & Gabor Rona, Why the Executive Order on the ICC is Unconstitutional and Self-Defeating, Opinio Juris (Aug. 13, 2020), available online. ↩

29. 29.

    Elena Baylis, Tribunal-Hopping with the Post-Conflict Justice Junkies, 10 Or. Rev. Int’l L. 361 (2008), available online. ↩

30. 30.

    Id. ↩

31. 31.

    Jonathan O’Donohue, The Prosecutor’s Next Steps on Afghanistan Will Determine the Future of the International Criminal Court, Amnesty Int’l (Apr. 17, 2019), available online. ↩

32. 32.

    Id. ↩

33. 33.

    Jacob J. Lew & Richard Nephew, The Use and Misuse of Economic Statecraft: How Washington is Abusing its Financial Might, Foreign Aff. (Oct. 15, 2018), paywall. ↩

34. 34.

    Howard Berman et al., Maintaining America’s Coercive Economic Strength: Five Trends to Watch in U.S. Sanctions, CNAS (Mar. 27, 2019), available online. ↩

35. 35.

    Rome Statute, supra note 22, Art. 17. ↩

36. 36.

    Decision Pursuant to Article 15, supra note 7. ↩

37. 37.

    Rome Statute, supra note 22, Art. 19. ↩

38. 38.

    Id. ↩

39. 39.

    Eric P. Schwartz, The United States and the International Criminal Court: The Case for “Dexterous Multilateralism”, 4 Chi. J. Int’l L. 223 (Apr. 1, 2003), available online. ↩

40. 40.

    Bush Administration, AMICC, available online (last visited Dec. 26, 2020). ↩

41. 41.

    John Bellinger & Robert McMahon, Interview: Bellinger Says International Court Flawed but Deserving of Help in Some Cases, N.Y. Times, Jul. 10, 2007, available online. ↩

42. 42.

    Harold Hongju Koh, Legal Adviser U.S. Dept. of State, Speech to ASIL, The Obama Administration and International Law (Mar. 25, 2010), available online. ↩

43. 43.

    Harold Hongju Koh, International Criminal Justice 5.0, 38 Yale J. Int’l L. 525 (2013), available online. ↩

44. 44.

    Id. ↩

45. 45.

    Donald J. Trump, President of the United States, Remarks to the 73rd Session of the United Nations General Assembly (Sep. 25, 2018), available online. ↩

46. 46.

    See, e.g., International Criminal Tribunal for the former Yugoslavia, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 39 ILM 1257 (Jun. 13, 2000), available online, doi. ↩

47. 47.

    The Power of America’s Example: The Biden Plan for Leading the Democratic World to Meet the Challenges of the 21st Century, JoeBiden, [hereinafter The Power of America’s Example], available online (last visited Dec. 26, 2020); Joseph R. Biden, Jr., Why America Must Lead Again: Rescuing U.S. Foreign Policy After Trump, Foreign Aff. (Jan. 23, 2020), available online. ↩

48. 48.

    US Support for Human Rights Defenders, Fact Sheet, US Dept. of State (Jan. 20, 2017), available online; Organization for Security and Co-operation in Europe, ODIHR, Guidelines on the Protection of Human Rights Defenders (May 28, 2014), available online. ↩

49. 49.

    The Power of America’s Example, supra note 47. ↩

50. Suggested Citation for this Comment:

    William W. Burke-White, Trump’s Sanctions on the International Criminal Court: Inappropriate, Ineffective, and Dangerous, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions#Burke-White.

    Suggested Citation for this Issue Generally:

    Is It Appropriate or Effective for the United States to Attempt to Influence the Actions of the International Criminal Court by Means of the Sanctions Set Forth in President Trump’s June 2020 Executive Order??, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions.

Argument Continued

Background: Executive Orders Under the International Emergency Economic Powers Act

The Trump administration has adopted many policies and engaged in many actions that violate human and civil rights and flout international laws and norms. From unleashing federal law enforcement on peaceful protesters to separating children from their families at the U.S. border and essentially imprisoning them, there is no shortage of examples of horrifying policy decisions from the past four years. Even in this climate, however, Executive Order 13928 stands out as particularly concerning. The Executive Order perverts a tool intended to protect people and deter human rights abuses, using it instead to attack people who have dedicated their lives to the pursuit of justice for egregious human rights violations, including crimes against humanity and genocide.

The Executive Order was issued pursuant to the International Emergency Economic Powers Act (IEEPA), which Congress enacted to enable the president to take extraordinary action in the face of serious threats to U.S. national security constituting national emergencies. Since it was enacted in 1977, IEEPA has most often been used to address national emergencies stemming from the policies of foreign governments. For instance, the first such emergency was declared after the hostage taking at the U.S. embassy in Iran in 1979, and remains in effect today. Over the years, IEEPA emergencies have been declared in several dozen countries, including Afghanistan, Iraq, Libya, and Syria. More recently, IEEPA emergencies have been declared with regard to threats that are not linked to particular territories. These address such threats to U.S. security as the proliferation of chemical and biological weapons, terrorism, transnational crime, and malicious cyber-enabled activities.2 Additionally, IEEPA has sometimes been invoked in response to serious human rights violations in countries such as Sudan and Venezuela.

Executive Order 13928 “Blocking Property of Certain Persons Associated with the International Criminal Court” is the first time the IEEPA has been used to target an international organization, let alone an organization devoted to preventing serious human rights abuses such as genocide, crimes against humanity, and war crimes. In the Executive Order, President Trump asserted that ICC efforts to investigate or prosecute U.S. personnel are “an unusual or extraordinary threat to the national security and foreign policy of the United States,” and “declare[d] a national emergency to deal with that threat.”3 To address this asserted threat, the Executive Order authorizes the Secretary of State, in consultation with the Secretary of the Treasury and Attorney General, to designate for sanctions any foreign person who has engaged in any effort by the ICC to investigate or prosecute personnel of the United States or its allies that are not ICC parties, or who has “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,” such activities.4 The kinds of assistance prohibited under the Order are very broad, including, among other things, contributing funds, goods, or services for the benefit of a designated person. The consequence of designation under the Executive Order is that all property and property interests of the designated person in the United States are blocked.

Given the serious consequences of engaging with a designated person, designation leads to what has been described as “civil death.”5 Since the majority of international transactions are conducted in U.S. dollars, they involve a bank in the United States Any such transactions by, or on behalf of, designated persons are blocked. Many financial institutions, even outside the United States, refuse to deal with designated persons. As Human Rights Watch has noted, the fear of losing access to U.S. banks causes financial institutions around the world to refuse to engage in transactions involving designated persons.6

In addition to consequences for designated persons, the Executive Order can be enforced against anyone who interacts with such a person in one of the prohibited ways. Unlike designation, which requires foreign citizenship, any person can be penalized for illegal interactions with a designated person. The consequences of such interactions include civil penalties of the greater of up to $307,922, or twice the value of the transaction that violated the order, and criminal fines of up to $1,000,000 and twenty years in prison.7

Since the Trump Administration, in September 2020, designated ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, head of her office’s Jurisdiction, Complementarity and Cooperation Division, they have experienced serious consequences, as has the ICC itself. Bensouda and Mochochoko’s travel is severely curtailed and they are unable to access many financial institutions. Additionally, the sanctions have affected the ICC’s ability to secure financial resources and services to support its work. Moreover, personnel within the ICC who could be subject to enforcement action for assisting Bensouda and Mochochoko have had to be walled off from working with them. All of these limitations undermine the ICC’s ability to fight for justice for international crimes.

The Executive Order is Illegal

On October 1, 2020, I joined the Open Society Justice Initiative and three other law professors in filing a lawsuit challenging the legality of the Executive Order and its implementing Regulations.8 Each of the plaintiffs has reason to fear both designation under the Executive Order and enforcement of civil and criminal penalties for violating its provisions. First, we are all dual citizens, which may qualify us as “foreign persons” who can be designated for sanctions under the Executive Order. Although neither the Executive Order nor the Regulations define this term, it has been interpreted to include dual citizens in other regulations issued under IEEPA.9 Second, each of us provides various kinds of assistance to Prosecutor Bensouda and her office. These include, among other things, directly advising the prosecutor’s office, filing amicus briefs supportive of the prosecutor’s positions in cases, engaging in conferences and other exchanges of ideas and information with members of the prosecutor’s office, and publishing books, articles, and other material that provides advice to that office.

As we allege in the complaint, the Executive Order and Regulations are illegal for several reasons. First, they violate our First Amendment free speech rights by prohibiting us from providing speech-based assistance and services to the ICC Prosecutor and her office. As the law professor plaintiffs have explained in publications about our lawsuit, the Executive Order means that we cannot do our jobs effectively.10 Our professional work focuses on preventing serious crimes such as genocide, war crimes, and crimes against humanity, including by speaking and writing about the work of the ICC Prosecutor and her office. Additionally, one of the plaintiffs, Diane Amann, has had to stop her work as Special Advisor to the Prosecutor on Children in and affected by Armed Conflict,11 and the Open Society Justice Initiative has had to limit its engagement in important work to reform the ICC prosecutor’s office, among other initiatives.12 Other important activities that we have had to stop include contributing to amicus briefs and speaking publicly about the work of the Prosecutor. Such activities violate the Executive Order and could subject us to civil and criminal enforcement penalties, as well as to designation for providing the prosecutor’s office with “material assist[ance],” “support,” or “services.” Indeed, on January 4, 2021, the court issued an order enjoining the defendants from enforcing IEEPA’s civil or criminal penalty provisions against us based on our First Amendment claims.

A second reason the Executive Order and Regulations are illegal is that they lack the clarity required by the Fifth Amendment regarding what conduct is prohibited, thus permitting arbitrary enforcement. In particular, by failing to define “foreign persons” they lack clarity as to which persons are subject to designation; and by failing to define “materially assisted,” “material […] support,” and “services to or in support of”, they are ambiguous as to which acts subject a person to designation or enforcement. As a result, the plaintiffs have had to stop engaging in a wide range of activities that support the ICC’s global justice efforts for fear of arbitrary enforcement.

Finally, the Executive Order and Regulations are ultra vires under IEEPA because they seek to regulate activities that are protected by statute. Under 50 U.S.C. § 1702(b)(3), the president may not use IEEPA to “regulate or prohibit […] the importation from any country, or the exportation to any country, whether commercial or others, […] of any information or informational materials, including but not limited to, publications, films, posters [...]”. Many of the activities in which the plaintiffs have engaged in the past, which they are prohibited from engaging in under the Executive Order, constitute such importation and exportation of information and, as such, cannot be regulated under IEEPA.

The Executive Order Undermines U.S. Interests, Including the Rule of Law

In addition to being illegal, the Executive Order undermines U.S. interests. First, it is unlikely to accomplish its stated objective of deterring the ICC from investigating and prosecuting personnel from the United States and its non-party state allies. Indeed, the Executive Order may increase the ICC’s resolve to pursue the situation involving such personnel. For any court, it is important to demonstrate impartiality and independence from political influence. This is particularly true for a court like the ICC that is young and still seeking to establish its legitimacy. If ICC decision-making were influenced, or perceived to be influenced, by political pressure from a powerful state, its legitimacy would be negatively affected, and state support for the Court would likely suffer. The need to avoid a perception of outside influence may encourage the Court to proceed against U.S. personnel. Moreover, as William Burke-White has noted, unlike more typical targets of sanctions such as corrupt government leaders, persons who work for global justice are motivated by conscience rather than wealth.13 Instead of cowing to bully tactics like the threat of illegal sanctions, they tend to respond to such affronts with renewed determination. Finally, the ferocity of the U.S. attack on the Court may signal that U.S. personnel have “something to hide,” further spurring investigation.14

Nor has the Executive Order undermined support for the Court around the world. Indeed, it has had the oppositive effect. Despite the significant challenges the ICC has faced in recent years, many governments spoke out swiftly and strongly after the Executive Order was issued.15 Within days of the Order’s promulgation, sixty-seven ICC member countries, including important U.S. allies, issued a statement expressing their “unwavering support for the court as an independent and impartial judicial institution.”16 Ten members of the Security Council, including France and the United Kingdom, stated their “commitment to uphold the principles and values enshrined in the Rome Statute and to preserve its integrity, undeterred by any threats against the Court, its officials, and those cooperating with it.”17 Again in November 2020, seventy-one ICC member countries reaffirmed their support for the Court in a statement to the U.N. General Assembly, stating: “Any attempt to undermine the independence of the Court should not be tolerated.”18 Many other such statements have been made in support of the ICC since the Executive Order was issued and the designations were made.19

Additionally, as Beth Van Schaack has pointed out, the Executive Order undermines any legitimate efforts to preempt the ICC’s exercise of jurisdiction over U.S. personnel. Under the ICC’s complementarity regime, it may not exercise jurisdiction in cases where a state with jurisdiction is doing so genuinely.20 The best way to avoid ICC prosecution of U.S. personnel is therefore to conduct credible national investigations and prosecutions. The Trump administration’s attacks on the Court would make any such efforts appear disingenuous.

Even more important than the Executive Order’s negative impact on the objective of avoiding ICC investigation and prosecution of U.S. personnel is the Order’s detrimental effect on the rule of law. The United Nations has called the rule of law:

[A] principle of governance in which all persons, institutions and entities […] are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.21

The Executive Order expresses the Trump Administration contempt for the rule of law, both nationally and internationally.

At the national level, the Executive Order shows the president’s disregard for constraints on the exercise of executive power. In an effort to ensure presidents have the ability to address a broad range of threats to national security, courts have granted them significant discretion in determining what constitutes an emergency under IEEPA.22 However, to declare that the threat of ICC investigation rises to the level of a national emergency is so ludicrous that it signals the president considers himself above the law. Unlike typical IEEPA emergencies such as threats from ruthless dictatorships, terrorist organizations, and nuclear proliferation, ICC investigations and prosecutions seek to prevent human rights abuses by punishing those responsible for particularly egregious violations. Sanctioning ICC personnel is such a flagrant violation of discretion as to seek to position the president as outside the rule of law.

Likewise, the Executive Order signals that the United States considers itself above the rule of international law. To be sure, U.S. exceptionalism with respect to the ICC pre-dates the Trump administration. Even the Obama administration, which promoted many rule of law efforts around the world, including supporting ICC investigations, never sought to join the Court. It also declined to prosecute U.S. personnel responsible for torture, extraordinary rendition, and other serious human rights violations. However, in using sanctions to target persons who fight human rights violations rather than those who commit them, the Trump administration expressed a new level of contempt for the application of international law to the United States

Ironically, one of the few positive actions the Trump Administration has taken with respect to rule of law promotion overseas is the expansion and use of sanctions against foreign personnel suspected of serious human rights violations. The Administration has made active use of the Global Magnitsky Human Rights Accountability Act, designating numerous suspected human rights violators for sanctions, and has adopted an Executive Order that expands the scope of such sanctions.23 The juxtaposition of these actions with the Executive Order highlights the extent to which the Administration sees the United States as beyond the reach of international law. As Mark Kersten has written, the Administration’s view seems to be: “If you’re American, look like an American, or are a friend of America, international criminal justice must not apply to you.”24

This extreme exceptionalism both positions the United States and its allies outside the reach of justice efforts, and, relatedly, signals that they are free to commit human rights abuses. Dictators and others around the world who know that U.S. political or economic interests align with their own are likely emboldened by the Executive Order to engage in repressive actions that violate human rights. The Order gives them comfort that the world’s most powerful government may protect them from accountability efforts.

Finally, the Executive Order vitiates the rule of law by seeking to undermine the independence of a judicial institution. The clear intent of the Executive Order is to coerce the ICC to stop investigating persons from the United States and its allies. In an interview with the American Enterprise Institute, Ambassador-at-Large for Global Criminal Justice Morse Tan threatened that unless the ICC Statute is revised to preclude such investigations, the United States will seek to shutter the institution.25 Such bullying of a judicial institution is a tactic typically employed by dictators to undermine rule of law.

Many states and governmental and non-governmental organizations have reacted with outrage to U.S. efforts to undermine the ICC’s independence.26 The International Bar Association declared itself “appalled by the United States Government’s continued campaign to intimidate ICC staff;” and asserted that “[t]he unprecedented punitive application of sanctions on a legitimate judicial institution is a shameful move to undermine the Court’s authority [...]”27 The American Bar Association adopted a policy “urg[ing] all national governments to observe, respect, and protect the independence of the International Criminal Court,”28 and noted:

In a time when democracy is in retreat globally, such an attack against the ICC and its professional staff by the United States—historically the leading exemplar of democracy and a just rule of law, of which an independent judiciary is an indispensable part—gives fodder to those who cite such attacks as a legitimate basis to undermine judicial independence in their countries.29

In sum, the Executive Order undermines the rule of law both inside the United States and abroad by positioning the United States and its president above the law, and by attacking the independence of a judicial institution.

Conclusion

According to the United Nations, respect for rule of law requires:

[M]easures to ensure adherences to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participate in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.30

By rescinding the Executive Order on day one, the Biden Administration can signal a recommitment to these principles. This signal will be important to U.S. allies who have watched with dismay for four years as the United States pursued policies more in line with those of a corrupt dictatorship than a beacon of democracy and justice.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Patrick Leahy (@SenatorLeahy), Twitter (Sep. 2, 2020, 2:18 PM), available online. ↩

2. 2.

   Christopher A. Casey, Dianne E. Rennack, Ian F. Fergusson & Jennifer K. Elsea, Cong. Research Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 20 (Jul. 14, 2020), available online. ↩

3. 3.

   Executive Order No. 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online. ↩

4. 4.

   Id. § 1(a)(i)(C). ↩

5. 5.

   Adam M. Smith, Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs, Just Security (Jun. 15, 2020), available online. ↩

6. 6.

   Human Rights Watch, US Sanctions on the International Criminal Court (Dec. 14, 2020), [hereinafter HRW on U.S. Sanctions], available online (last visited Dec. 27, 2020). ↩

7. 7.

   International Emergency Economic Powers Act, P.L. 95-223, 91 Stat. 1626 (Oct. 28, 1977), codified as amended at 50 U.S.C. § 1701 et seq. (2018) [hereinafter IEEPA], available online. ↩

8. 8.

   Press Release, OSJI, Open Society Justice Initiative Sues Trump Administration over International Criminal Court Executive Order (Oct. 1, 2020), available online. ↩

9. 9.

   See e.g., Narcotics Trafficking Sanctions Regulations, 31 CFR § 536.304 (Jul. 1, 2004), available online

   (defining “foreign person” as “any citizen or national of a foreign state (including any such individual who is also a citizen or national of the United States), or any entity not organized solely under the laws of the United States or existing solely in the United States, but does not include a foreign state.”). ↩

10. 10.

    Diane Marie Amann, Margaret deGuzman, Gabor Rona & Milena Sterio, Why We Are Suing President Trump, Just Security (Oct. 8, 2020), available online; Margaret M. deGuzman, Editorial, For Working to Support Global Justice, I Could Face U.S. Sanctions, CBC, Oct. 31, 2020, available online. ↩

11. 11.

    Diane Marie Amann, I Help Children in Armed Conflict. The President Is Forcing Me to Stop., Just Security (Jun. 29, 2020), available online. ↩

12. 12.

    Complaint, Diane Marie Amann, Milena Sterio, Margaret deGuzman, Gabor Rona v. Donald J. Trump et al., 1:20-cv-08121, ¶ 90 (S.D.N.Y., Oct. 1, 2020), available online. ↩

13. 13.

    William Burke-White, The Danger of Trump’s New Sanctions on the International Criminal Court and Human Rights Defenders, Brookings Inst. (Jun. 11, 2020), available online. ↩

14. 14.

    Beth Van Schaack, The Int’l Criminal Court Executive Order: Global Reactions Compiled, Just Security (Sep. 1, 2020), available online. ↩

15. 15.

    See id. ↩

16. 16.

    Human Rights Watch, ICC: Member Countries Rally Around Court (Jun. 23, 2020), available online. ↩

17. 17.

    Permanent Mission of France to the U.N., Statement by States Parties to the Rome Statute in Support of the International Criminal Court on the Occasion of the ICC Report to the General Assembly (Nov. 2, 2020), available online. ↩

18. 18.

    HRW on U.S. Sanctions, supra note 6. ↩

19. 19.

    Kevin Jon Heller, Statement Against US Sanctions on ICC Investigations, Opinio Juris (Jun. 30, 2020), available online

    (statement against EO 13928 signed by 187 American lawyers). ↩

20. 20.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 17, available online. ↩

21. 21.

    What is the Rule of Law, UN, available online (last visited Dec. 27, 2020). ↩

22. 22.

    See, e.g. TikTok Inc. et al. v. Donald J. Trump et al., 1:20-cv-02658-CJN, 2020 Westlaw 5763634, at *4, Mem. Op. (D.D.C., Sep. 27, 2020), available online

    (“IEEPA contains a broad grant of authority to declare national emergencies”). ↩

23. 23.

    Presidential Executive Order No. 13818: Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption, 82 FR 60839 (Dec. 20, 2017), available online. ↩

24. 24.

    Mark Kersten, Trump’s Sanctions Against International Criminal Court Staff Aren’t Just ‘Bad’, They’re Racist, Just. in Conflict (Sep. 10, 2020), available online. ↩

25. 25.

    American Enterprise Institute, The International Criminal Court and Global Criminal Justice: A Conversation with Amb. Morse H. Tan (Oct. 26, 2020), available online. ↩

26. 26.

    Van Schaack, supra note 14. ↩

27. 27.

    International Bar Association, IBA Condemns US President’s Executive Order Authorising Sanctions Against International Criminal Court Personnel (Jun. 12, 2020), available online. ↩

28. 28.

    International Criminal Justice Today, ABA Adopts Policy Condemning Threats Against the ICC and Its Officers (Aug. 3, 2020), available online. ↩

29. 29.

    American Bar Association, CHR, Resolution (Aug. 3, 2020), available online. ↩

30. 30.

    What is the Rule of Law, supra note 21. ↩

31. Suggested Citation for this Comment:

    Margaret M. deGuzman, The Biden Administration Should Signal its Commitment to the Rule of Law by Rescinding the Anti-ICC Executive Order on Day One, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions#deGuzman.

    Suggested Citation for this Issue Generally:

    Is It Appropriate or Effective for the United States to Attempt to Influence the Actions of the International Criminal Court by Means of the Sanctions Set Forth in President Trump’s June 2020 Executive Order??, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions.

Argument Continued

The ICC judge Chile Eboe-Osuji claimed that American sanctions constituted coercion, which is illegal under international law as well as U.S. domestic law. In his words:

In any liberal democracy, or even not so liberal democracies, you pick up a statute book and it will tell you that it is against the law to coerce a court of law in order to have justice the way you want it.

This analysis is incorrect because the U.S. response was not coercion. Instead, American sanctions had a deterrent role (which is not contrary to international law) to protect its sovereignty, which is the main principle in international law.

Speaking at the U.N. General Assembly, President Trump stated: “As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority” and he is correct. The ICC has no jurisdiction to investigate the U.S. military for two main reasons. First, the United States is not a state party to the Rome Statute. The ICC lacks jurisdiction over crimes occurring before the Rome Statute entered into force on July 1, 2002 or over crimes occurring before ratification for those member states after that date. This rule prevents the Court from prosecuting individuals for new crimes. However, nationals of nonparties can be subject to prosecution no matter when new crimes are included or where they are situated, which is contrary to the main principle of sovereignty. Second, the ICC is based on “the principle of complementarity”7 and it is a court of last resort and can only step in where national legal systems fail to undertake prosecutions. Given that the U.S. government already investigated multiple alleged crimes in Afghanistan and prosecuted several individuals,8 the ICC should not be in charge of any further investigation. The United States is a democratic country and a supranational judicial court is only necessary in countries where a domestic judicial system fails.

The Prosecutor maintained that her Office’s sole objective was to investigate and prosecute alleged war crimes and crimes against humanity “independently, impartially and objectively.” The ICC claims to be an independent judicial institution not subject to political control.9 However, the politicization of the Afghanistan case, and the ICC’s history of targeting only African countries, demonstrate a markedly different picture. Although Israel has never joined the ICC, the Court found “a reasonable basis” to believe that “war crimes have been or are being committed in the West Bank, including East Jerusalem and the Gaza Strip.”

The ICC recently rejected a case charging the People’s Republic of China with genocide. Brought by two Uighur advocacy groups, the complaint was tossed by Chief Prosecutor Fatou Bensouda on the grounds that China is not an ICC member state. The abdication of the world’s nominal premier guardian of justice notwithstanding, the cases for both ICC jurisdiction and for the claim of genocide are clear. Numerous evidence shows that the existence of “re-education” camps, which detained more than a million Uighurs. There are credible allegations of torture, rape, and brainwashing.10 Outside of China, Uighurs are harassed, surveilled, and intimidated by the Chinese state. These grotesque violations of human rights fits the United Nations’ legal definition of genocide.11 Bensouda’s shyness towards China contradicts her zeal in going after the United States for war crimes. Indeed, the very logic used by the ICC to establish its jurisdiction to investigate crimes allegedly committed by U.S. forces in Afghanistan should theoretically apply equally when it comes to Chinese genocide. In this instance, an ICC mandate for Beijing exists (and is supported by precedents from 2018 and 2019)12 because of illegal mass deportations of Uighurs from ICC member states Tajikistan and Cambodia into Xinjiang.13 There, they were detained and subjected to further crimes. Although Bensouda found a way to establish the ICC jurisdiction for the Afghanistan case, she said that China is not an ICC member state and refused to scrutinize Beijing’s grotesque genocide. Though the U.S. government already investigated the situation in Afghanistan, Bensouda found these efforts inadequate—but seems to have nothing to declare of Chinese courts’ active collaboration in Uighur oppression. And while the U.S. case allegedly relates to about eighty victims for war crimes more than fifteen years ago, China stands accused of atrocities against hundreds of thousands of victims in an ongoing genocide.

The ICC has also been reluctant to bring justice to Venezuela.14 In September 2018, Argentina, Canada, Chile, Colombia, Paraguay, and Peru referred the human rights situation in Venezuela to the ICC for investigation over allegations of “crimes against humanity.” After the Organization of American States accused the Court of failing to investigate Maduro’s regime for committing torture, rape, politically motivated detentions, and extrajudicial executions, the ICC prosecutor announced that she believes there is “reasonable basis” to believe Venezuela committed crimes against humanity and will determine in 2021 whether to open a full investigation.15

The Chief Prosecutor also stated that she might complete a case between Russia and Georgia by the end of 2020, but this case still remains incomplete.16

The United States should continue to challenge the Court’s jurisdiction and protect the rights of nations that are bound only by rules to which they consent. Rumor has it that the Biden administration will lift Trump’s sanctions,17 but that would be a grave mistake. The Trump sanctions offer an opportunity to the Biden administration, and Biden should not lift the sanctions without first negotiating with the Court. He should be clear that unless the ICC opens an investigation against China for committing genocide, finishes the case between Russia and Georgia, and starts an investigation for Venezuela, lifting U.S. sanctions will not be an option.

The ICC is at a turning point as elections for the next Chief Prosecutor loom near and the winning candidate will direct the agenda of the Court for years to come. Given that the election of the Chief Prosecutor has been postponed several times, the United States should strike at the ICC through its supporters. Japan, the United Kingdom, France, Italy, Canada, Spain, Mexico, and Australia are all major Court funders. The United States should warn countries that contribute substantially to the ICC while simultaneously depending utterly on the United States for their defense (such as Japan) that they cannot expect American troops to protect any nation seeking to prosecute and imprison them. It should weaken defense ties with ICC member countries, and cut foreign aid to any nation that cooperates with the Court. The United States should continue to deny ICC officials and any government officials (such as any military or law enforcement officers) that assist them from entering the United States or using its financial system.

With these actions, the Biden administration will defend the rights, not just of the United States, but of all sovereign nations. America did not join the Rome Statute and thus it remains unfettered by its requirements. To protect international law, it should refuse to recognize any ICC probe. International rules should only bind nations that consent to them. Allowing the ICC to claim power over the United States, which does not consent to its jurisdiction, will erode any incentive to obey any international rules at all. The ICC’s actions threaten the only true mechanism for deterring human rights abuses.

Subjecting U.S. forces to an after-the-fact and idealistic human rights barometer will only discourage Washington from intervening to end massive human rights abuses in difficult world hotspots. If the global elite want the United States to lead efforts to end killings in places such as Syria, Yemen, or Sudan,18 the last thing it should do is prosecute American troops when they take on the difficult jobs that no other nation can or will do.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Afghanistan, ICC, available online (last visited Dec. 28, 2020). ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

3. 3.

   Kofi Annan, Advocating for an International Criminal Court, 21 Fordham Int’l L.J. 363 (1997), available online. ↩

4. 4.

   Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online. ↩

5. 5.

   Phakiso Mochochoko, ICC, available online (last visited Dec. 28, 2020). ↩

6. 6.

   Permanent Mission of France to the U.N., Statement in Support of the International Criminal Court Following the Release of the US Executive Order of 11 June 2020 (Jun. 23, 2020), available online. ↩

7. 7.

   Darryl Robinson, Morten Bergsmo et al., Informal Expert Paper: The Principle of Complementarity in Practice, ICC (Dec. 11, 2003), available online. ↩

8. 8.

   William Burke-White, The Trump Administration Misplayed the International Criminal Court and Americans May Now Face Justice for Crimes in Afghanistan, Brookings Inst. (Mar. 11, 2020), available online. ↩

9. 9.

   International Criminal Court, Understanding the International Criminal Court (Aug. 22, 2013), available online. ↩

10. 10.

    Uighurs, N.Y. Times, available online (last visited Dec. 28, 2020). ↩

11. 11.

    Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277, available online. ↩

12. 12.

    Tia Sewell, Unpacking the Recent Uighur ICC Complaint Against Chinese Leaders, Lawfare (Jul. 21, 2020), available online. ↩

13. 13.

    Marlise Simons, Uighur Exiles Push for Court Case Accusing China of Genocide, N.Y. Times, Jul. 6, 2020, available online. ↩

14. 14.

    Ivana Stradner & Ryan Berg, Editorial, The International Criminal Court Needs To Investigate Venezuela, Newsweek, Dec. 17, 2020, available online. ↩

15. 15.

    Reuters, ICC Prosecutor Sees ‘Reasonable Basis’ to Believe Venezuela Committed Crimes Against Humanity, Dec. 14, 2020, available online. ↩

16. 16.

    Int’l Criminal Court May Complete the Investigation of the Russia-Georgia War by End of 2020, Agenda.ge,, Dec. 4, 2019, available online. ↩

17. 17.

    Colum Lynch, Biden Likely to Lift Sanctions on ICC Chief Prosecutor, Foreign Pol., Nov. 25, 2020, paywall. ↩

18. 18.

    Ralph Ranalli, The “Next Rwanda” Will Look Different: Samantha Power Reflects on What We’ve Learned and Forgotten 25 Years After the Genocide, Harv. Kennedy Sch. (Apr. 4, 2019), available online. ↩

19. Suggested Citation for this Comment:

    John Choon Yoo & Ivana Stradner, The ICC Claims to be an Independent Judicial Institution Not Subject to Political Control, However, the ICC is a Political Institution That Promotes Double Standards, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions#Yoo.

    Suggested Citation for this Issue Generally:

    Is It Appropriate or Effective for the United States to Attempt to Influence the Actions of the International Criminal Court by Means of the Sanctions Set Forth in President Trump’s June 2020 Executive Order??, ICC Forum (Jan. 8, 2021), available at https://iccforum.com/sanctions.