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- Abbas.Poorhashemi: US Sanctions Against the International Criminal Court: Where is International Law Going? As I discussed previously in the JURIST—Professional Commentary, September 15, 2020, President Trump is already engaged in an unprecedented offensive against the ICC. In June 2020, he authorized economic sanctions against officials of the ICC to dissuade the jurisdiction from prosecuting the American military for their involvement in the conflict in Afghanistan. Such an act in international law was an... (more)
- magli: How to Address the Legality of EO 13928 and the Never Ending Unilateral Punitive Measures: A View From Across the Atlantic by Konstantinos D. Magliveras I. Introduction Executive orders (or presidential decrees or whatever they are called in different jurisdictions) are what they are: the setting out by the head of state of actions to be pursued because he/she believes them to be in the best interest of his/her country,... (more)
- jak223: An Ultra Vires Attack on the ICC: Executive Order 13298 and the IEEPA In November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda requested authorization to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan after May 1, 2003, which would include an investigation of Taliban and Afghan National Security Forces, as well as United States military and Central... (more)
- eboldis: The Effects of the Executive Order on the Legitimacy of the ICC Introduction States, particularly those against whom proceedings have been brought, have had contentious relationships with international judicial institutions. There are various ways in which these States refuse to cooperate with international courts. Among others, these methods of non-compliance and non-cooperation include refusing to comply with arrest warrants,... (more)
- madhavi.narayanan: Beyond the Rome Statute: International Obligations to Promote the Victim Right to a Remedy I. Introduction In December 2003 Mr. al-Asad, a Yemeni national and successful businessman living in Tanzania, was seized from his home, in front of his family, by Tanzanian officials and secretly flown to Djibouti […] where he was interrogated by an American official and threatened with death. He was then handed over to... (more)
- Melis: Enhancing the International Criminal Court’s Perceived Legitimacy to Soften the U.S. Stance I. Introduction Executive Order 13928 issued by U.S. President Donald Trump states that the International Criminal Court’s (ICC) investigation of the situation in Afghanistan is “illegitimate” and “infringe[s] upon the sovereignty of the United States.”1 The... (more)
- ramyaswami: The Biden Administration Should Abandon the United States ICC Sanctions Regime I. Introduction On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) unanimously decided to grant the Prosecutor’s request to commence an investigation into alleged crimes under the Court’s jurisdiction in relation to the situation in Afghanistan. The Appeals Chamber authorized the prosecutor to... (more)
- asykora: Are the United States’ Sanctions Against the International Criminal Court Appropriate? I. Introduction On June 11, 2020, in response to the International Criminal Court (ICC) authorizing an investigation into alleged war crimes committed against Afghanistan citizens, U.S. President Trump issued Executive Order 13928 approving sanctions against any person who have directly engaged in any effort by the... (more)
- Patrick King: I. Introduction On June 11, 2020, President Donald Trump issued Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, (EO 13928) which empowers the Secretary of State to designate foreign persons who he determines have assisted or engaged in efforts by the International Criminal Court (ICC) to investigate or prosecute American citizens or citizens of American allies.1... (more)
Comment on the U.S. Sanctions Question: “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?”
An Ultra Vires Attack on the ICC: Executive Order 13298 and the IEEPA
In November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda requested authorization to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan after May 1, 2003, which would include an investigation of Taliban and Afghan National Security Forces, as well as United States military and Central Intelligence Agency personnel.1 Initially denied by the Pre-Trial Chamber, the authorization to investigate was approved by the Appeals Chamber in March 2020.2 In apparent response to this development, on June 11, 2020, President Donald Trump issued Executive Order 13928 (EO 13928)3 which determined that the ICC’s investigation into actions allegedly committed by U.S. nationals in Afghanistan constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States.”4 EO 13928 declared a national emergency to deal with the threat imposed by the ICC.5 As a result of EO 13928, on September 2, 2020, Ms. Bensouda and Phakiso Mochochoko, Head of the Office of the Prosecutor’s Jurisdiction, Complementarity and Cooperation Division of the ICC, were added to the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons. In addition, EO 13928 also prohibits any person from “making any contribution or provision of funds, goods, or services, by, to, or for the benefit” of any person blocked under EO 13928.6 President Trump’s Order was issued under multiple authorities, including the International Emergency Economic Powers Act (IEEPA).7
The IEEPA, enacted in 1977, delegates broad emergency powers to the president to levy a variety of economic sanctions during a period of national emergency. EO 13928 relies heavily on the IEEPA as the legal authority to declare a national emergency in relation to the actions of the ICC and impose sanctions on members of the ICC, as well as anyone supporting the ICC.
On the surface, the President’s reliance on the IEEPA would appear to be appropriate. However, upon further analysis and application of the IEEPA to EO 13928, EO 13928’s reliance on the IEEPA is flawed. EO 13928 is outside of the statutory authority granted to the President under the IEEPA, and as such, is ultra vires for two reasons: first, the actions of the ICC do not constitute a national emergency, as there exists no evidence to warrant the designation of an “unusual and extraordinary threat,” and second, EO 13928 regulates conduct that is specifically exempt under the IEEPA. The Trump Administration made it clear in 2018 that any and all actions would be taken against the ICC and the Prosecutor to further the Trump Administration’s policy goals. The timing of the Appeals Chamber decision approving the Prosecutor’s investigation into alleged crimes in Afghanistan and EO 13928 is just too close together to be coincidental, particularly when the Trump Administration stated that they would engage in such actions against the ICC and the Prosecutor if their investigation into Americans was to proceed. It is, therefore, unsurprising that EO 13928 would manipulate the requirements of the IEEPA to further their policy goals.
EO 13928 is Ultra Vires Because the ICC’s Actions Do Not Meet the “Unusual and Extraordinary” Threat Requirement of the IEEPA
When examined against the legislative intent and historical use of the IEEPA, the ICC’s actions fail to rise to the level of an “unusual and extraordinary threat” as required by the IEEPA. The IEEPA gives the President broad powers to act during times of national emergency, including the use of economic-based sanctions. The IEEPA requires the declaration of a national emergency in order for these powers to be utilized by the President.8 The President may only declare a national emergency to “deal with any unusual and extraordinary threat, which has its source in whole or in substantial part outside the United States, to the national security, foreign policy, or economy of the United States”9 Neither the National Emergencies Act (NEA),10 nor the IEEPA, provide a definition of what constitutes an “unusual and extraordinary threat.” This allows for a broad interpretation by the President and application to a variety of circumstances that may not truly constitute such a threat.
Legislative documents surrounding the enactment of the IEEPA provide guidance as to Congress’ intended usage of the declaration of a national emergency:
While the authority conferred to the President under the IEEPA is broad, Congress intended to limit the President’s ability to declare an indefinite national emergency and meant for the declaration of a national emergency to be narrowly tailored to a specific event or circumstance.12
Since the enactment of the NEA and the IEEPA in 1976 and 1977, fifty-nine of sixty-seven declarations of a national emergency have utilized the IEEPA as the legal authority for such a declaration.13 Since 1990, almost all of the national emergency declarations under the IEEPA not relating to a specific geographic area have dealt with matters of national security, such as chemical and biological weapons proliferation, weapons of mass destruction, terrorism, cyber warfare, human rights abuses, and transnational criminal organizations.14
The actions of the ICC, in engaging in the investigation of crimes that may be within their jurisdiction, fail to rise to the level of an “unusual and extraordinary threat” against the United States, let alone a threat at all. By definition, the words “unusual” and “extraordinary” signify something that is manifestly abnormal to the normal state of affairs. Congress has made clear in its passage of the IEEPA that the emergency triggering the act must be a real threat to the United States and must not be something that could normally occur. The investigation of U.S. citizens, military and intelligence personnel, and government activities is something that is done regularly by human rights groups, other governments, and international institutions.
It is by no means abnormal or unusual for the conduct of the United States and its citizenry to be scrutinized. In addition, when placed next to the previous history of non-geographic uses of the IEEPA, EO 13928 is in stark contrast as those uses were for clear threats to the national security of the United States. The investigation of U.S. citizens certainly does not rise to the level of weapons proliferation, human rights abuses, or terrorism.
EO 13928 provides no evidentiary basis for why this conduct is so egregious or abnormal as to qualify as an “unusual and extraordinary threat,” nor does the language, use, or legislative intent of the statute appear to support this position. As such, EO 13928 fails to adequately comply with the requirements of the IEEPA.
In addition, EO 13928 appears to abandon the IEEPA’s requirement of an “unusual and extraordinary threat,” and instead focuses on achieving the Trump Administration’s policy goals towards the ICC. Presidents have used the IEEPA to support administration and congressional national security and foreign policy goals and objectives.17 More recently, presidents:
The Trump Administration has a clear policy of antagonism towards the ICC. In 2018, National Security Advisor John Bolton, outlined the Trump Administration’s policy as it related to the ICC, declaring that the United States would not “cooperate, engage, fund, or assist” the ICC in any way.19 Mr. Bolton argued that the ICC threatened the United States’ sovereignty and national security for five reasons, the most important of which being that the ICC has the unfettered ability to investigate, charge, and prosecute individuals without either their government’s or their consent.20 Mr. Bolton also argued that the crimes under ICC jurisdiction were poorly defined, that the ICC fails in its goal to deter or punish crimes, is superfluous to U.S. domestic courts, and is divisive in nature.21 Interestingly, Mr. Bolton noted that, should the ICC continue any investigation into Americans or United States’ allies, the United States would ban the prosecutor from entering the United States and sanction their funds in the U.S. financial system.22
It can only be imagined that these are the reasons that the President relied on when designating the actions of the ICC as an “unusual and extraordinary threat” to the United States in EO 13928. However, the Administration’s policy overstates and embellishes the actual authority of both the Prosecutor and the ICC and contains “several errors regarding the ICC’s structure, jurisdictional reach, and internal accountability mechanisms.”23 The Administration’s primary argument is in error. It states that:
Not only is the ICC’s jurisdiction time-bound,25 but it is limited to only those crimes identified in the Rome Statute. In addition, the ICC does not have unlimited and automatic jurisdiction over anyone, but rather the ICC may only exercise jurisdiction, in pertinent part, when the alleged crime is committed either on the territory of a State Party or by a national of a State Party, or if a State accepts jurisdiction of the ICC.26 Gravity and complementarity must also be taken into account when determining case selection.27 The Trump Administration has further indicated that United States’ courts are superior to the ICC. If the United States’ courts opened an investigation into Americans’ alleged conduct in Afghanistan after May 2003, complementarity would prohibit the ICC from investigating and the domestic courts would be allowed to adjudicate the matter.28 “All it takes is for American authorities to submit individuals suspected of violations in Afghanistan to America’s own very effective of system of justice.”29 As the ICC is a treaty-based court, it is “surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.”30 This is particularly true when the ICC has indicated that it is “not intent on ‘hauling’ Americans up to trial before it.”31 Finally, it is unclear how the ICC and the Prosecutor present an “unusual and extraordinary threat” when much of the work done by the ICC and the Prosecutor “is completely aligned with U.S.-avowed interests.”32 It is illogical that a judicial institution that engages in work supported by the United States could also constitute a threat. Given the errors in the Trump Administration’s reasoning and justification for their policy towards the Prosecutor and the ICC, it is clear that the ICC does not constitute an “unusual and extraordinary threat” to the United States, as it provides no threat to Americans, national security, or foreign policy in any way.
The President has no evidentiary basis to designate the ICC or the Prosecutor as an “unusual and extraordinary threat,” particularly when such a designation is based on inaccuracies and exaggerations. In addition, the designation does not meet with the legislative intent or common usage of the IEEPA as there is no “real” emergency posed by the ICC. EO 13928 is ultra vires as it fails to comply with an essential element of the IEEPA as it has not identified a true threat which necessitates the declaration of a national emergency, but is rather a retaliatory measure veiled as a lawful action.
EO 13928 Is Also Ultra Vires Because It Regulates Conduct That Is Specifically Exempted by the IEEPA
EO 13928 relies on the IEEPA as the legal authority for the regulation of such conduct, however the IEEPA provides no authority to the President to engage in such action. In fact, the IEEPA does just the opposite, specifically prohibiting the President from taking any action against activities that are informational in nature. Specifically, EO 13928 prohibits “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of”33 the Prosecutor. In addition, anyone who is found to “have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of,”34 the Prosecutor is subject to sanction, including monetary fines and imprisonment. The IEEPA limits the ability of the President to regulate or prohibit specific conduct during a national emergency. Specifically, the IEEPA limits the regulation of:
The exchange of this information cannot be otherwise controlled except for “national security or foreign policy reasons related to weapons proliferation or international terrorism.”36 Even the USA Patriot Act, which provided broad powers to the President after 9/11, did not limit these provisions of the IEEPA.
EO 13928’s contradiction of the IEEPA’s protections is already affecting U.S. nationals. There are a number of organizations and scholars who provide information or informational materials to the ICC and the Prosecutor via research and scholarship. EO 13928 subjects this information and its authors to sanction that are outside the authority of the IEEPA. In Open Society Justice Initiative et al. v. Donald Trump et al.,37 currently pending in the Southern District of New York, four prominent international law scholars argue that EO 13928 prohibits them from providing information and informational materials to the Prosecutor, which they have provided in the past, regarding a variety of issues concerning the ICC or the Prosecutor. “Plaintiffs have engaged with the ICC […] by educating, training or advising them […] and by undertaking public advocacy in support of their mission and work.”38 In addition, these legal scholars argue that they have had to substantially alter their planned research and scholarship endeavors to avoid violating EO 13928, as these activities would potentially subject them to penalty.39 The ability of these four scholars, and likely countless others, to continue to provide information to the ICC and the Prosecutor has been impaired by EO 13928 in a way that the IEEPA specifically intended to protect.
EO 13928 plainly utilizes authority the President does not have under the IEEPA. EO 13928 provides no limitation for specific circumstances that are exempted by the IEEPA, but rather provides a blanket ban on all conduct associated with the ICC or the Prosecutor. This includes information or informational materials that may have nothing to do with the investigation into alleged crimes in Afghanistan. The IEEPA protects these informational activities and EO 13928’s prohibition of such activities is ultra vires.
The IEEPA was intended to provide broad authority to the President in times of national emergency, when there exists an “unusual and extraordinary threat.” This was intended by the Legislature to constitute something extreme such as weapons of mass destruction or terrorism. While EO 13928 designates the ICC and the Prosecutor as an “unusual and extraordinary threat,” such a designation is unsubstantiated and unfounded. As the designation is improper, EO 13928 is ultra vires to the authority granted by the IEEPA. The Trump Administration has erroneously labeled the ICC and the Prosecutor’s authority as unlimited, and taken an aggressive and antagonistic stance towards the ICC, despite the fact that much of the work done by the ICC and the Prosecutor aligns with U.S. interests. In painting a picture of the ICC and the Prosecutor as rogue actors who are intent on imprisoning Americans, the Trump Administration has made it clear that EO 13928 is nothing more than a retaliatory action for the Prosecutor’s failure to back down when threatened by the United States. This is not the intended use of the IEEPA and is yet another example of how EO 13928 is ultra vires.
In addition, the IEEPA specifically protects information and informational materials even during times of a national emergency. EO 13928 completely ignores such protections and bans conduct that is protected by the IEEPA, again making EO 13928 ultra vires to the authority granted by the IEEPA. This has already negatively affected U.S. citizens who engage in research and scholarship meant to provide information on specific issues to the ICC and the Prosecutor.
Sadly, it is unlikely, despite it being ultra vires, that EO 13928 will be successfully contested as “determinations concerning national security issues receive a high degree of judicial deference, if they are challenged at all.”40 However, one can only hope that the new Biden administration will reverse course as it relates to the ICC and continue to stand for justice and the end to impunity.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Afghanistan, ICC, available online (last visited Dec. 30, 2020). ↩
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. ↩
Id. § 3(a). ↩
Unusual and Extraordinary Threat; Declaration of National Emergency; Exercise of Presidential Authorities, 50 U.S.C. § § 1701–1708 (Jan. 3, 2012) [hereinafter Unusual and Extraordinary Threat], available online. ↩
Id. § 1701(a). ↩
National Emergencies Act, 50 U.S.C. § § 1601–1651 (Sep. 14, 1976), available online. ↩
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, 9–10 (Jul. 14, 2020) [hereinafter IEEPA Origins], available online
(citing U.S. Congress, House, Trading with the Enemy Act Reform Legislation, Report of the Committee on International Relations on H.R. 7738 at 4, 95th Cong., 1st sess., H. Rept. 95–459 (Jun. 23, 1977)). ↩
Thomas J. McCarthy, James Tysse & Caroline Wolverton, Challenging Executive Actions Under IEEPA, Nat’l L.J. (Jun. 2018), available online. ↩
IEEPA Origins, supra note 11, at 17–18. ↩
Id. at 21. ↩
Chile Eboe-Osuji, Editorial, All We Want Is Justice for Victims, Says the I.C.C., N.Y. Times, Jun. 18, 2020, available online. ↩
Adam M. Smith, Dissecting the Executive Order on Int’l Criminal Court Sanctions: Scope, Effectiveness, and Tradeoffs, Just Security (Jun. 15, 2020), available online. ↩
IEEPA Origins, supra note 11, at 25–26. ↩
Elizabeth Goitein & Andrew Boyle, Limiting This Governmental Emergency Power Could Curb Presidential Overreach, Brennan C. for Just. (Mar. 5, 2020), available online. ↩
John Bolton, National Security Advisor, Speech to the Federalist Society (Sep. 10, 2018), transcript available online, video available online (begins at 1:24:07). ↩
Milena Sterio, The Trump Administration and the International Criminal Court: A Misguided New Policy, 51 Case W. Res. J. Int’l L. 201 (2019), available online. ↩
Bolton, supra note 19, at note 17. ↩
(The ICC only has jurisdiction over cases starting in 2002). ↩
Sterio, supra note 23, at 206; see also 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. 12, available online. ↩
Rome Statute, supra note 26, art. 17. ↩
Id. art. 17(1)(a). ↩
Eboe-Osuji, supra note 15. ↩
Sterio, supra note 23, at 205. ↩
Eboe-Osuji, supra note 15. ↩
Jennifer Trahan & Megan Fairlie, The International Criminal Court is Hardly a Threat to US National Security, Opinio Juris (Jun. 15, 2020), available online. ↩
EO 13928, supra note 3. ↩
Unusual and Extraordinary Threat, supra note 11, § 1702(b)(3). ↩
IEEPA Origins, supra note 11, at 12. ↩
Complaint, Diane Marie Amann, Milena Sterio, Margaret deGuzman, Gabor Rona v. Donald J. Trump et al., 1:20-cv-08121 (S.D.N.Y., Oct. 1, 2020), available online. ↩
Id. at 3. ↩
Id. at 35. ↩
Smith, supra note 16. ↩