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:

A national emergency should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no other purpose. The emergency should be terminated in a timely manner when the factual state of emergency is over and not continued in effect for use in other circumstances. A state of national emergency should not be a normal state of affairs. (emphasis added).11

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 enough that senior American officials, well attuned to the old-fashioned American sense of justice, readily accept that not even American soldiers are immune from accountability when they are suspected of committing crimes in foreign countries.15

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.

That the tool is now being deployed as a threatened broadside against an organization dedicated to redressing international crimes—rather than against an adversary state (like Iran, North Korea, or Cuba) or a specific threat (like terrorism or WMD proliferation), as all other sanctions programs are—is bizarre and troubling.16

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:

[H]ave largely ignored the requirement of an ‘unusual and extraordinary threat.’ Presidents typically invoke the IEEPA whenever they believe it would advance foreign policy goals, regardless of whether an actual emergency […] exists.18

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:

The ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States24

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:

[T]he importation from any country, or the exportation to any country, […] of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD-ROMs, artworks, and news wire feeds.35

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.

Conclusion

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).

1. 1.

   Afghanistan, ICC, available online (last visited Dec. 30, 2020). ↩

2. 2.

   Id. ↩

3. 3.

   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. ↩

4. 4.

   Id. ↩

5. 5.

   Id. ↩

6. 6.

   Id. § 3(a). ↩

7. 7.

   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. ↩

8. 8.

   Id. § 1701(a). ↩

9. 9.

   Id. ↩

10. 10.

    National Emergencies Act, 50 U.S.C. § § 1601–1651 (Sep. 14, 1976), available online. ↩

11. 11.

    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)). ↩

12. 12.

    Thomas J. McCarthy, James Tysse & Caroline Wolverton, Challenging Executive Actions Under IEEPA, Nat’l L.J. (Jun. 2018), available online. ↩

13. 13.

    IEEPA Origins, supra note 11, at 17–18. ↩

14. 14.

    Id. at 21. ↩

15. 15.

    Chile Eboe-Osuji, Editorial, All We Want Is Justice for Victims, Says the I.C.C., N.Y. Times, Jun. 18, 2020, available online. ↩

16. 16.

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

17. 17.

    IEEPA Origins, supra note 11, at 25–26. ↩

18. 18.

    Elizabeth Goitein & Andrew Boyle, Limiting This Governmental Emergency Power Could Curb Presidential Overreach, Brennan C. for Just. (Mar. 5, 2020), available online. ↩

19. 19.

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

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ↩

23. 23.

    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. ↩

24. 24.

    Bolton, supra note 19, at note 17. ↩

25. 25.

    (The ICC only has jurisdiction over cases starting in 2002). ↩

26. 26.

    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. ↩

27. 27.

    Rome Statute, supra note 26, art. 17. ↩

28. 28.

    Id. art. 17(1)(a). ↩

29. 29.

    Eboe-Osuji, supra note 15. ↩

30. 30.

    Sterio, supra note 23, at 205. ↩

31. 31.

    Eboe-Osuji, supra note 15. ↩

32. 32.

    Jennifer Trahan & Megan Fairlie, The International Criminal Court is Hardly a Threat to US National Security, Opinio Juris (Jun. 15, 2020), available online. ↩

33. 33.

    EO 13928, supra note 3. ↩

34. 34.

    Id. ↩

35. 35.

    Unusual and Extraordinary Threat, supra note 11, § 1702(b)(3). ↩

36. 36.

    IEEPA Origins, supra note 11, at 12. ↩

37. 37.

    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. ↩

38. 38.

    Id. at 3. ↩

39. 39.

    Id. at 35. ↩

40. 40.

    Smith, supra note 16. ↩