Sanctioning the ICC: A Guide to U.S. Law (Part I)

— Sanctioning the ICC: A Guide to U.S. Law (Part I)

[Andrew Boyle is counsel in the Liberty & National Security Program at the Brennan Center for Justice.]

When most people think of the targets of United States sanctions they think of arms traders, terrorists, and despotic regimes. They do not think of international courts established as a venue to promote criminal responsibility for transgressions such as war crimes, crimes against humanity, and genocide. If anything, those would seem to be endeavors that the U.S. would support. 

That is why it came as a surprise to many last week when President Trump declared a national emergency and established a sanctions program regarding the International Criminal Court (ICC). A number of commentators have lucidly explained why this move is self-defeating and generally objectionable in regards to American principles and interests. But fewer pixels (but not none, see in particular this excellent piece by Adam Smith) have been darkened with an explanation of the mechanism through which Trump is implementing these sanctions. This information could be more than a curiosity to persons working for and with the ICC, who might be wondering if they are in the sanctions crosshairs. 

This post will discuss the various parts of the executive order announcing the sanctions, and the law on which it based. A second post to follow will address some additional ramifications of the order and what to expect going forward.

The Operative Law

The law that President Trump invoked to establish the sanctions program is the International Emergency Economic Powers Act (IEEPA). IEEPA is one of over 136 emergency powers that Congress has delegated to the President over the years, and as such it is subject to the National Emergencies Act (NEA). That was why, as a technical legal matter, Trump had to declare a “national emergency” to invoke its powers. The NEA is also why there was an executive order that was placed in the Federal Register, as that is similarly one of the procedural requirements of the NEA. 

IEEPA was enacted in 1977. In the wake of Nixonian abuses of executive power, Congress began reconsidering emergency powers writ large. One oft-used emergency power during the 20th century up to that point had been the Trading With the Enemy Act (TWEA). Originally enacted during World War I to add economic warfare tools to conventional ones, Congress eventually became dismayed with its extensive use during peacetime. Thus, Congress passed a law that limited TWEA to war-time, and created sanction powers under IEEPA for peace-time that had greater constraints. 

IEEPA itself requires that there be “an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” None of these terms are further defined under the law. In order to check that box, Trump’s order–Executive Order 13928–states: 

that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.

IEEPA contains a slew of economic powers—only a portion of which are used in this order—that the president can utilize, and that presidents have used extensively over the years to address a wide array of foreign policy concerns. There are currently over 30 national emergencies running that rely on IEEPA.

The What and the Who

At the outset, it’s important to recognize that the executive order does not itself sanction anyone. What it does is launch a sanctions program necessary for individual targets to be named. With this groundwork in place, going forward the government can, at any time, announce that a relevant target is sanctioned. 

The order first sets up the thrust of the sanctions:

All property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, of the following persons are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in

The order “blocks” the property of certain groups of people that are delineated later. “Blocking” is a synonym for freezing, which is not to be confused with “vesting.” When property is frozen, it still belongs to the original owner, but he or she cannot access it. The blocking applies to property that is, or comes within, the United States or that is under the control of a United States person on or after the time when an individual is sanctioned. 

“United States person” is a defined term that is far broader broader than what may be immediately apparent. It encompasses “any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States.” Thus, if you are an American anywhere in the world in the possession of property of a sanctioned person, or if you are a non-American but within the United States, you are required to freeze that property. 

Perhaps the biggest impact, however, comes from the fact that “U.S. person” includes not just actual persons, but also corporate persons, e.g. banks and other financial institutions, and their foreign branches as well.

The effects of being targeted under this sanctions program might look something like the following. Say you are a Canadian ICC employee living in The Hague who the U.S. designates for sanctions. Your bank account at The Hague branch of Citibank, a U.S. corporate person, is frozen; your American Express credit card is frozen; and stocks you own in mutual funds administered by U.S. financial institutions are frozen. Moreover, the centrality of the U.S. financial system greatly expands the reach of these sanctions. Perhaps you decide to transfer money electronically from your German-owned bank to a Canadian bank, thinking that such a transaction between two non-American corporate persons will avoid any sanctions issues. There is a good possibility that the transaction clears through a financial institution in the U.S as it travels electronically from one bank to another. As it clears through the U.S. bank, it will be frozen. 

(i) any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General:

The order starts off its description of possible sanctions targets with a limitation. Only “foreign” persons may be sanctioned. U.S. persons or corporations, whether working for the ICC or otherwise within the parameters of the order, are exempt. The order delegates the power to name particular targets for sanction to the Secretary of State, a function he and his employees will likely carry out with the assistance of the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). OFAC is the point office for sanctions and IEEPA. 

(A) to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States;

(B) to 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;

(C) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity described in subsection (a)(i)(A) or (a)(i)(B) of this section or any person whose property and interests in property are blocked pursuant to this order; or

(D) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

The order then describes the categories of foreign persons that can be sanctioned. Parts (A) and (B), which apply to actions against the United States and its allies, respectively, concern “direct engagement” in investigation, arrest, detention, or prosecution. Those directly engaged would most obviously be ICC staff itself (or even the ICC as an institution), but could presumably encompass, for example, cooperating national police or military forces. 

A number of terms used in establishing the categories of persons that may be sanctioned are further defined in the order. “United States personnel” as used in (A) is defined as “any current or former members of the Armed Forces of the United States, any current or former elected or appointed official of the United States Government, and any other person currently or formerly employed by or working on behalf of the United States Government.” It is thus limited to U.S. government employees of one sort or another, but not necessarily to U.S. citizens. The same definition, with the necessary alterations, applies to “personnel” in regards to allies. The term “ally of the United States” means a NATO member or a “major non-NATO ally.” Observers have calculated that there are 10 non-ICC members amongst this group.

Part (C) expands those who could be sanctioned significantly. The definitionally flexible and ample terms “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of” could encompass almost any interaction with the ICC. (NB: “materially assisted” should not be confused with “material support” under 18 U.S.C. 2339B and Holder v. Humanitarian Law Project as relates to entities designated as Foreign Terrorist Organizations.)

Part (D)’s “owned or controlled by” language expands those that could be sanctioned further, however any designations under that section explicitly requires a connection to an individual or entity that was already sanctioned. 

Other Provisions of the Order

The order goes on to waive a humanitarian exception built-in to IEEPA for “donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering.” IEEPA allows the President to waive this provision when permitting it would “seriously impair” his ability to deal with the proclaimed National Emergency. 

Under a different statutory power, which is not an emergency power, the order also prohibits the travel to the United States of persons that could be sanctioned under the order, their immediate family members (defined as spouses and children), or anyone “employed by, or acting as an agent of, the ICC.” The Secretary of State has the ability to waive this provision for any particular individual. 

The order also provides an exception from sanction for the U.S. federal government, and persons and entities working on its behalf.  

The second post will address some additional ramifications of the order and what to expect going forward.

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Courts & Tribunals, Foreign Relations Law, General, International Criminal Law, National Security Law, North America
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