The United States has for decades utilized its economic clout to pursue sanctions against rogue governments and regimes, terrorists, narcotics traffickers, and human rights abusers. Now, with roughly half a year left in his first term, President Trump is focusing the power of U.S. sanctions on an unlikely and unusual target – the International Criminal Court (ICC) – which has as its prime objective the targeting of much of the same conduct as sanctions: genocide, war crimes, and crimes against humanity.

On June 11, 2020, President Trump issued a new Executive Order (the “ICC EO”) that threatens sanctions against those working for the ICC, including asset freezes along with travel bans for such individuals and their families. The ICC EO continues a trend of the Trump administration in pursuing its objectives via sanctions and other measures – such as the “snapback” of Iran sanctions and toughening of Cuba sanctions – despite the fierce objections of the United States’ closest allies and partners.

The ICC EO is unusual because of both who and what it targets. Given that it targets a major international institution supported by most U.S. allies, the ICC EO may drive an even deeper wedge between the United States and much of the rest of the world and contradict certain deeply established and long-held U.S. national security and foreign policy objectives, including forceful protections of human rights globally.

In many respects, the ICC EO may be seen as representing the culmination in the sanctions arena of President Trump’s “America First” doctrine, threatening anyone who dares to second-guess actions taken by the United States abroad. The ICC EO also could be viewed as the international embodiment of the president’s stance on the Black Lives Matter protests roiling the United States, with the EO purporting to forcefully elevate the actions of the U.S. military abroad as beyond reproach (or even investigation), in much the same way the protesters view governmental attitudes regarding law enforcement behavior in the United States today.

I. Background

The ICC is an international tribunal established in The Hague, Netherlands by the international community in 2002 to investigate and prosecute individuals charged with the gravest crimes of concern to the international community, including genocide, war crimes, and crimes against humanity. The ICC was established pursuant to the Rome Statute of the International Criminal Court (the “Rome Statute”), an international treaty adopted at a diplomatic conference in Rome, Italy in 1998, and it entered into force in 2002.

As of this writing, 123 countries have ratified the Rome Statute, including almost every country in Europe and Latin America, and many other U.S. allies including Australia, Canada, Japan, and South Korea. The United States originally signed the Rome Statute in 2000 during the Clinton Administration. However, citing concerns that the ICC would “not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not,” President Clinton did not recommend that his successor, President Bush, submit the Rome Statute to the U.S. Senate for ratification. In addition to the United States, Russia, China, India, Saudi Arabia, Turkey, and the Philippines are also not parties to the Rome Statute and the ICC.

President Clinton’s concerns appeared to have been confirmed earlier this year when a panel of ICC judges authorized the ICC prosecutor to open an investigation into possible war crimes and crimes against humanity in Afghanistan allegedly committed by U.S. forces and the CIA, as well as Taliban attacks against civilians. Specifically, the ICC prosecutor asserted in court documents that there was a reasonable basis to believe that “since May 2003, members of the U.S. armed forces and the CIA have committed the war crimes of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence pursuant to a policy approved by the U.S. authorities.”

Even before the ICC formally authorized its investigation into U.S. actions earlier this year, Trump administration officials had expressed concerns about the court. In 2018, while the ICC was still considering whether to authorize its investigation into U.S. conduct, President Trump’s then-national security adviser, John Bolton, called the ICC “illegitimate” and threatened sanctions against it if it moved forward with prosecutions against Americans. After the ICC formally authorized the investigation, members of the Trump administration expressed immediate objections to the investigation, with Secretary of State Pompeo calling it a “breathtaking action by an unaccountable political institution, masquerading as a legal body” and stating that the United States would “take all necessary measures to protect [its] citizens from this renegade, unlawful, so-called court.”

The ICC EO appears to be the culmination of the measures threatened by Bolton and Pompeo. In the preamble to the ICC EO, President Trump states that the “United States seeks to impose tangible and significant consequences on those responsible for the ICC’s transgressions, which may include the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members,” demonstrating the seriousness of the Trump administration about punishing the ICC for investigating U.S. personnel.

II. The ICC Executive Order

The ICC EO authorizes “blocking” sanctions – asset freezes and prohibitions on any further dealings – against any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to:

• have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any U.S. personnel without the consent of the United States;
• have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government;
• have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, such activities; or
• be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person sanctioned under the ICC EO.

For the purposes of the sanctions criteria above, the term “personnel” refers to any current or former military personnel, current or former elected or appointed official, or other person currently or formerly employed by or working on behalf of the government of the United States, a NATO member country, or a “major non-NATO ally,” which currently includes 17 countries and Taiwan.

The ICC EO provides that any person sanctioned under the criteria above and their immediate family members would be banned from entering the United States. The ICC EO defines the term “immediate family member” as spouses and children.

III. Conclusions

The ICC EO is different from prior sanctions executive orders in that it threatens a major, globally accepted international institution. In the past, U.S. sanctions have been used to target rogue states, terrorist organizations, and other malicious actors. While U.S. allies sometimes disagreed with the scope of these sanctions (e.g., the EU “Blocking Statute” issued in response to U.S. sanctions against Cuba and Iran, discussed here), they always acknowledged the malign behavior these sanctions targeted. The ICC EO is different. U.S. allies in Europe will likely vehemently oppose attempts to sanction the ICC, with Josep Borell, the EU’s foreign policy chief, stating that the ICC EO “is a matter of serious concern … because we as the European Union are steadfast supporters of the International Criminal Court.”

The ICC EO may also directly contradict other U.S. national security and foreign policy efforts. As mentioned above, the ICC EO not only threatens sanctions against the ICC for investigating U.S. personnel, but also threatens sanctions against the ICC for investigating the personnel of “major non-NATO allies.” This category includes the Philippines, which under Rodrigo Duterte has engaged in widely publicized extrajudicial killings of suspected drug dealers, and Egypt, which has recently used the COVID-19 outbreak as an excuse to crack down on journalists. If the ICC investigated the Philippine or Egyptian police or security forces involved in these actions, would the United States sanction the ICC? Such an action would seem to contradict the spirit of the Global Magnitsky sanctions, which authorize sanctions against those who engage in violations of internationally recognized human rights.

The Trump administration has yet to sanction anyone under the ICC EO, and it remains to be seen whether the administration will do so. However, if past actions are any guide, we should expect these new sanctions authorities to be used, at least in the form of visa bans. As always, we at MoFo will be watching to see how the Trump administration’s latest move plays out.

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