Why the Executive Order on the ICC is Unconstitutional and Self-Defeating

[Susan M. Akram is Clinical Professor at Boston University and Director of the International Human Rights Clinic at the Law School. Gabor Rona is Professor of Practice at Cardozo Law School and former International Legal Director of Human Rights First.]

In his Executive Order 13928 (EO) issued on June 11, 2020, President Trump declared the investigation by the International Criminal Court (ICC) into possible US crimes against humanity and war crimes associated with the armed conflict in Afghanistan, as well as investigations against non-ICC member allies such as Israel, an “unusual and extraordinary threat to national security and foreign policy of the United States.” The President issued the EO under the National Emergencies Act (NEA), the International Emergency Economic Powers Act (IEEPA) and the Immigration and Nationality Act (INA) to authorize sweeping restrictions and punishment, including financial sanctions, civil fines and even criminal prosecution/imprisonment of persons and entities that engage with the ICC.

The EO works on two levels. First, it authorizes the Secretary of State to list foreign individuals subject to the EO. That has not yet happened, and hopefully, never will. Listed individuals would have their US-based assets frozen and would be denied entry to the United States. Second, it prohibits the provision of funds, goods or services to anyone designated as subject to the EO’s sanctions. This provision doesn’t apply only to foreign nationals. Listed individuals would be unable to maintain a bank account, fly on an airplane, or shop in a supermarket, because the banks, airlines and supermarkets that serve them would themselves be subject to punishment. Buying the ICC Prosecutor a cup of coffee could be a crime. If this seems alarmist, it may be worth revisiting Holder v. Humanitarian Law Project, in which the US Supreme Court validated a similar regulatory/statutory scheme to allow criminal prosecution of an organization that provided training about the Geneva Conventions to a group subject to US anti-terrorism sanctions. While one would hope that the Supreme Court can distinguish between terrorists and, say, lawyers like us who file amicus briefs with the ICC, that does nothing to dispel the chilling effect of the Trump EO.

The EO is frightening and breathtaking in its reach. It is incompatible with constitutional rights to freedom of speech, association and due process of law; it interferes with the sovereignty of other states while falsely promoting the notion that the ICC’s investigation of American perpetrators of international crimes on foreign soil violates US sovereignty; and it undermines US treaty obligations and legitimate US foreign policy objectives by potentially crippling the ICC’s mission to bring the world’s worst human rights abusers to justice.

The EO Would Undermine Constitutional Free Speech and Association Rights of US Citizens

First, the EO has extremely troubling consequences for the constitutional rights of US citizens to due process of law, free speech, and freedom of expression and association. Many US citizens are employed by or engaged with the work of the ICC as Court personnel, consultants, advisors, contributors to investigations and prosecutions at every level. US lawyers contribute valuable information through amicus briefs and as pro bono lawyers working on cases from genocide in Myanmar to war crimes in Syria. US lawyers are also involved in the investigation of fellow US citizens for egregious violations of international law in the context of the Afghanistan situation. The scope of prohibited activities is vague, overbroad and potentially subjects non-Americans and Americans alike to criminal prosecution. If the EO stands, it will conflict with fundamental First Amendment rights and protections. In particular, it will potentially criminalize the bedrock constitutional guarantee that an individual who has been harmed by a US citizen or government actor is entitled to receive zealous legal representation without retaliation.

The EO Would Seriously Impinge on the Sovereign Decisions of Foreign States

Second, the Rome Statute is an international treaty that supplements, but does not supplant each State Party’s right to exercise jurisdiction over criminal suspects who are either their nationals or who commit crimes in their territory. As such, every State Party can choose to exercise that jurisdiction itself or to delegate that jurisdiction to the International Criminal Court. This EO, if implemented, would directly interfere in all 123 State Parties’ own sovereignty by penalizing their right to make that choice. Hypocritically, the US itself is not a State Party to the Rome Treaty, and yet seeks to undermine the right of all other states to exercise their own sovereignty as they choose with regard to the Court.

The US claim that the ICC’s investigation of Americans violates US sovereignty is a hollow one and fails to justify the EO’s drastic interference with the sovereign authority of States Party to the Rome Statute. The only Americans coming within the ICC’s jurisdictional authority are those who commit a grave offense on the territory of a State Party. Whether the investigation or prosecution is conducted by the State on whose territory the offense is committed, or by an international tribunal authorized by that State, is of no consequence to U.S. sovereign authority.

Moreover, the scope of the Order is grossly overreaching in its assertion of jurisdiction over persons and entities having nothing to do with the United States. Under the IEEPA, the US can sanction any judge, prosecutor, witness, administrative employee, consultant, attorney or other person or company providing support or services to the ICC through blocking bank transactions, freezing assets, and even sanctioning airlines or other carriers for transporting goods and persons benefiting the ICC. The potential sanctions could reach as far as donations to the ICC from individuals, or penalizing lawyers filing briefs in matters before the ICC. This affects individuals and entities from any of the 123 States Parties to the Rome Statute, and would affect their transactions with even tangential connections to the United States—such as their ability to transfer funds to a bank with branches in the US. This aspect of the EO is intended to, and will, cripple the work of the ICC and chill the widespread international participation in its legitimate activities.

The EO Would Violate US Treaty Obligations, and There Is No ‘National Emergency’ to Justify Suspension

Third, the EO undermines the United States’ own obligations in ratifying international treaties, including the Convention against Torture (CAT), the four Geneva Conventions of 1949, and the International Covenant on Civil and Political Rights (ICCPR). In particular, the EO threatens to undermine the US CAT and Geneva Convention obligations to investigate, prosecute and punish perpetrators of torture and war crimes, wherever those crimes have been committed. For example, Article 3 of the CAT requires the US to either prosecute and punish perpetrators of torture who come within its jurisdiction or refer them for prosecution—whether to the UN Security Council or another international tribunal such as the ICC. The CAT makes this mandatory, not discretionary, and the EO directly undercuts this obligation. Likewise, the grave breaches provisions of the Geneva Conventions require the United States to punish torture and certain other war crimes. The Constitution requires every US official to comply with treaty commitments from the executive, judicial and legislative branches under its Article VI. This EO requires US members of Congress, the Courts and officials in US agencies to violate their Article VI obligations to carry out provisions of the CAT and Geneva Conventions.

The fact that US personnel may be prosecuted for torture or war crimes is not a national emergency, nor is it in the US’ own interests to declare it as such. Most of the US’ major allies are parties to the CAT and participate in the ICC as an essential tool for carrying out their obligations to prosecute or refer for prosecution perpetrators of torture. If the US wishes to place sanctions on, or otherwise punish individuals it presumes are torturers or war criminals such as nationals of Iran or Syria, it may find many of its allies unwilling to support those efforts.

Perhaps the most significant consequence of the EO is not in the protection of impunity for American torturers, or the violation of constitutional and human rights of those who work for or cooperate with the ICC, or the interference with the sovereign authority of other States to delegate their prosecutorial authority to an international tribunal. It is the violence the EO does to legitimate US foreign policy objectives by potentially crippling the ICC’s mission to bring the world’s worst human rights abusers to justice.

By all measures, this EO is misguided, unjustified, and faces serious legal challenges to its enforcement.