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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?”

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, because they defend state sovereignty, promote foreign policy goals, and so on. Whether they are appropriate is a rather moot question (arguably, they cannot but be are since the head of state has expressed his prerogatives in this specific manner). As regards whether they are effective, (a) presumably one cannot judge effectiveness unless the executive order’s temporal validity has ended or it has otherwise been terminated (rescinded), and (b) its precise aim/s will have to clearly defined before one is able to measure its effectiveness. For example, had Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal not been adopted, how many US nationals would have been investigated and/or prosecuted by the ICC (if the goal is to protect US nationals from ICC investigations/prosecutions)?

On the other hand, what might be of more interest is to address EO 13928 within the context of the seemingly ever-expanding number of unilateral punitive measures (invariably the term ‘sanctions’ is employed), which are adopted solely or principally for pursuing national goals or aspirations or even for domestic reasons (e.g., to impress the electorate by attacking real or imaginary foes). To that extent, the term ‘autonomous sanctions’ has sometimes been used. The lack of any involvement by parliament (a generic term to describe a group of individuals who were freely elected by the power-holding citizenry to represent them) in executive orders should be regarded as problematic, irrespective of whether parliament would have objected or consented.

II. The Importance of the Affected Persons and Entities Being Able to Challenge the Legality of EO 13928 Due to Its Extraterritorial Effects

Moreover, it should be irrelevant whether the incoming in January 2021 US administration will revoke EO 13928 and whether this will be another showing of pursued multilateralism. The mere existence of an EO, as indeed the existence of any legally binding instrument emanating from a state authority, especially one that envisages the imposition of punitive measures, has tangible results. It directly affects one or more individuals (regardless of whether they are named or not, regardless of whether they are affected in a personal capacity or in an official/ professional capacity and regardless of nationality) and possibly affects organizations (in the broad sense of the word to include international institutions, like the ICC, as well). Therefore, on account of the reaction (the EO being the action), those being (actually or potentially) affected should be able to judicially attack it, seek its annulment, seek compensation if damage can be proven, etc. In our case, it is not only the ICC prosecutor and other officials, who should enjoy unfettered locus standi, but it should also be the ICC itself. The ICC is an international institution having, under Article 4 ¶ 1, of the Rome Statute, international legal personality and, therefore, in principle, the right to sue. Of course, this is separate from domestic legislation allowing at all times to bring an action against an EO before domestic courts. The right of aliens to challenge the legality of legislative acts, which have been adopted by foreign states and without first being heard, has always been restrained on account of their nationality, on account of distance from the forum, etc.

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Another aspect of EO 13928 is that it has extraterritorial effects, and this is, I believe, another characteristic of the kind of legislative instruments containing unilateral punitive measures. Ideally, the legality of such instruments would be tested before supranational courts of justice or quasi-judicial entities, under procedures that would ask the court / entity in question to fully take into consideration legitimate national interests and foreign policy goals (protecting one’s citizens is such an interest, ensuring impunity for one’s citizens is not). And one should also discuss what opposition to EO 13928 might be brought by entities such as the ICC Assembly of States Parties or by the states of nationality of the affected ICC officials by exercising diplomatic protection. All is all, it is not inconceivable that such litigation could be brought, depending of course on the prevailing circumstances and the applicable conditions, before the International Court of Justice, before regional human rights courts, or before the UN treaty-based bodies.

III. The Political Dimension of International Opposition to EO 13928 and Its Limitations

But one should also think of the political opposition expressed by international organizations. For example, the role that the UN General Assembly nay paly. Let’s look at the latest relevant UNGA decision (Res. 75/3 of 2 November 2020 titled ‘Report of the International Criminal Court’). Several delegations speaking during the deliberations on the draft Resolution (UN Doc. A/75/L.5) did castigate the US sanctions as they “undermine the independence of the Court”. To give an indication of the reaction, China called the US measures “bullying practices and power politics”, Belgium argued that they “violate essential values and interests” and the State of Palestine rebuked them because they “reflect a misplaced sense of superiority” (Press Release, United Nations, GA/12280, General Assembly, Adopting Draft Upholding International Criminal Court’s Goal to End Impunity, Calls for Cooperation in Arresting Fugitives (Nov. 2, 2020) available online). However, Res. 75/3 did not actually record the disapproval of a majority of Member States on account of a fellow Member State having taken what amounts to punitive action against an UN associated international institution and its officials. The reason might lie in the explanation given by the representative of the Netherlands, which introduced the draft Resolution, as to why it reflected a technical rollover from the Resolution which had been adopted the previous year, namely Res. 74/6 of 4 November 2019. The representative said that “much has happened regarding the Court that is not reflected in the draft, as COVID‑19 restrictions made it hard to have meaningful discussions about its content” (ibid).

But even if, for the sake of argument, all these accusations had found their way into the text of the UNGA decision, would anything have changed? Even if the USA was referred to by its name in the text and not as ‘a certain country which has imposed unilateral sanctions upon the ICC Prosecutor and other officials’? The simple and straightforward answer is ‘no’. And if one has any doubts, what better example that the myriad UNGA decisions demanding that the US administration ends the embargo against Cuba? 2019 marked the 28th consecutive year that the UNGA adopted a decision to that effect (Resolution 74/7 of 6 November 2019 titled “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba”). This reflects a reality: we have been used to treating UNGA decisions as meaningless documents, having no true authority, as texts reflecting solely the wishes and beliefs of the group of states which controls developments in the UNGA. On the other hand, when conveniently, certain UNGA Resolutions have been elevated to the status of binding treaties (e.g., Resolution 217 A (III), Resolution 2625(XXV)), and one will be ready to accept without hesitation its role as “the most representative global forum” (as characterized by the Parliamentary Assembly of the Council of Europe in its Report “Parliamentary dimension of the United Nations”, Doc. 10771, 21 December 2005).

IV. Conclusion – Why Determining the Legality of EO 13928 Under International Law Is Important

The present short note has focused on the ways and means to address, from outside the US, legislative instruments such as EO 13928, which have consequences for (a) individuals, who are not ordinarily within the US jurisdiction but against their will they are brought with it, and (b) international institutions in which the USA does not participate because it has chosen not to and, consequently, has no vested interests. In reality, the impact EO 13928, if measured in the maze of unilateral punitive (counter)measures, autonomous sanctions, reprisals, etc. which have adopted and ordered by states and international organizations, is minimal, a mere drop in an ocean of retaliations. And it is also of no consequence that EO 13928 was proclaimed by a US President whose election campaign promise in 2016 was ‘America First’ and this motto has characterized his foreign policy (e.g., the withdrawal from the World Health Organization). Additionally, whether EO 13928 is vindicated under US Constitutional Law or whether it violates the First Amendment are naturally interesting questions, provided that its legality is actually challenged before a competent court of justice. And apparently this is not going to happen. The rhetoric of political condemnation and opposition is of course very welcomed but does not lead to anything substantive. At the end of the day, what matters for international lawyers is the answer to a simple question “Is EO 13928 legal under present-day public international law?”. If, as expected (see, inter alia, Colum Lynch, Biden Likely to Lift Sanctions on ICC Chief Prosecutor, Foreign Pol. (Nov. 25, 2020), available online.) the incoming US Administration abrogates EO 13928, this will not solve the question of the legality of this and similar legislative instruments. It is will be a nice symbolic move towards confirming its belief to multilateralism and to the ICC as a global project, which was championed by a previous US Administration, but the legal questions will linger until a new EO of a similar content is adopted.

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