On June 11, 2020, the Trump administration issued , which imposes economic sanctions, travel restrictions and 鈥渟ignificant consequences鈥� on anyone assisting the International Criminal Court (ICC) by providing evidence of war crimes committed by U.S. troops and citizens. This restrictive national emergency order was issued in response to the to investigate the commission of alleged war crimes in Afghanistan by Taliban, Afghan and U.S. troops since the armed conflict began in May 2003.
were imposed on September 2, 2020, when the administration sanctioned top ICC officials, including Chief Prosecutor, Fatou Bensouda and Head of the Jurisdiction Complementarity and Cooperation Division, Phakiso Mochochoko. Ultimately, the 鈥渦nusual and extraordinary threats鈥� of the ICC鈥檚 investigation were deemed to harm the national security and foreign policy of the United States. Secretary Mike Pompeo further stated that 鈥渋ndividuals and entities that continue to materially support those [designated] risk exposure to sanctions.鈥�
The Trump administration unequivocally denounced the authority, legitimacy and jurisdiction of the ICC over U.S. personnel by asserting its non-ratification of the , which created the International Criminal Court in 1998. With 123 state signatories, the treaty empowers the ICC in The Hague to exercise its jurisdiction over individuals for 鈥渟erious crimes of concern鈥� that impact the international community, including genocide, crimes against humanity, war crimes and/or crimes of aggression.
While previous administrations have supported the functions of the ICC and cooperated with its prior investigations, the current administration critiques the cosmopolitan nature and global reach of the ICC, which is perceived as a threat to U.S. sovereignty and independence. This open hostility ultimately impedes the Court鈥檚 operations and impairs its ability to realize its of investigating international crimes of concern, fostering a culture of accountability for atrocity crimes, and contributing to long-term peace, stability and development in post-conflict societies.
Curtailing speech and civic participation: a chilling effect
The Trump administration鈥檚 draconian measures were subsequently criticized by the international community, particularly among many human rights activists and international legal scholars, who condemned the order as a blatant violation of free speech, due process and constitutional rights.
The American Bar Association (ABA), proclaimed as the 鈥渘ational voice of the profession,鈥� issued a stating that its members were 鈥渄eeply disturbed鈥� by the Trump administration鈥檚 escalating attacks on the ICC. A was later adopted by the ABA House of Delegates, condemning further sanctions against legal professionals working at the ICC and urging all national governments to respect and protect the independence of the ICC.
Richard Dicker, international justice director at Human Rights Watch that the Trump administration鈥檚 sanctions are 鈥渁n egregious affront to victims of the world鈥檚 worst crimes.鈥� Moreover, the civil and criminal penalties associated with the administration鈥檚 retaliatory measures have already created a chilling effect among legal scholars and advocates who work in international law and justice.
Professor Diane Marie Amann of the University of Georgia School of Law, who serves as a Special Adviser to the ICC and works on behalf of children impacted by armed conflict, affirms that the executive order effectively silenced the activities that have been her life鈥檚 work. As a result, she has cautiously withdrawn from public presentations and halted the work of her student research assistants out of fear that her involvement may be constrained in violation of the provisional measures.
Plaintiffs institute legal proceedings against executive order
In response to the executive order, four law professors (including Professor Amann) in collaboration with the Open Society Justice Initiative, a public interest law centre, instituted a , challenging the restrictive penalties imposed on those who support the efforts of the International Criminal Court.
The plaintiffs, who all teach and advocate on international justice issues, contend that the executive order unduly restricts their First Amendment rights to free speech, lacks clarity of prohibited acts as required by the Fifth Amendment, and is ultra vires under the International Emergency Economic Powers Act. The plaintiffs further allege that the threats implicated from the executive order have caused them to 鈥渄iscontinue, abandon or reconsider鈥� a wide range of their professional activities in support of international justice, such as preparing briefs for the ICC, presenting at panels, attending conferences or hiring student research assistants.
Among many other concerns, the executive order has been widely criticized for its arbitrary nature that threatens a broad range of cooperative activities among lawyers, activists and scholars. Indeed, the administration leaves ambiguous the term 鈥渕aterially assisted鈥� as articulated in the executive order. As such, the nature of activities that are subject to punishment remain unclear.
Safeguarding due process and clarity of law
As affirmed by U.S. , provisions must be sufficiently explicit to inform those subject to it whether their conduct is punishable. Otherwise, such laws violate the essential nature of due process law. In , Fuller affirms that among other conditions, all purported legal rules must be 鈥渁t least minimally clear and intelligible鈥� to embody standards of fairness and predictability that ground the rule of law. Conversely, the arbitrary nature of the executive order blatantly violates these principles.
Above all, arbitrary threats of punishment not only silence dissenting opinions and curtail inclusive participation in civil society, but also threaten democracy as a whole. As , the principle of open discussion is 鈥渁 method of achieving a more adaptable and [鈥 more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.鈥� Free speech is premised on the search for truth, participation in political decision-making and individual self-fulfillment through expression. When curtailed, democratic institutions and governance are jeopardized.
By issuing a restrictive executive order that is both unduly harsh and alarmingly arbitrary, the Trump administration has ultimately curtailed free speech and civic participation, while also frustrating the legitimate efforts of the ICC to secure international justice for victims of crimes against humanity.
The lawsuit instituted by the Open Justice Initiative is a significant proceeding that is bound to shed light on the legality of the executive order and support access to justice on a global scale. State participation with the ICC鈥檚 operations is a means to hold individuals accountable鈥攔egardless of their citizenship or nationality鈥攆or the worst crimes known to humankind.
To pursue an unfettered unilateral foreign policy strategy instead, and to deliberately censor human rights advocates in the process is an affront to international norms and the rule of law.
About the author
Kimia Towfigh (kimia.towfigh [at] mail.mcgill.ca (email)) is a BCL/JD candidate and research assistant at 平特五不中鈥檚 Faculty of Law.
Her interests are sustainable development, taxation and immigration matters.
She currently serves as the undergraduate student representative of the Centre for Human Rights and Legal Pluralism's Management Board
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