USA removes sanctions on ICC officials

Coalition for the ICC
“The Coalition for the ICC welcomes Executive Order 13928 being revoked and welcomes the removal of sanctions against its personnel. These were unprecedented measures against the ICC. We now look forward to constructive support by the U.S. in striving for justice, accountability and redress for victims of the most atrocious crimes,” said Melinda Reed, Acting Convenor of the CICC. “As the Court continues to implement its mandate, it will continue to attract opposition and hostility. States Parties must remain vigilant and united to condemn and oppose any pressure or unwarranted attacks and interference against the Court’s work and independence, ICC personnel, and those cooperating with it, especially Human Rights Defenders.”

On 2 April 2021, the Biden Administration announced the rescission of Executive Order 13928, thereby removing the unprecedented sanctions in place against ICC Prosecutor, Fatou Bensouda, and the Director of the Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko, as well as travel restrictions against other personnel of the International Criminal Court (ICC).

“These decisions reflect our assessment that the measures adopted were inappropriate and ineffective,” said Antony J. Blinken, U.S. Secretary of State, in his statement announcing the end of the sanctions and visa restrictions, adding that the U.S. “continue[s] to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations.  We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.  We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.”

This decision was welcomed by the Court and the President of the Assembly of State Parties to the Rome Statute, as well as civil society organizations across the globe.

In their statement, the ICC highlighted that “the United States has traditionally made important contributions to the cause of international criminal justice. The Court stands ready to reengage with the US in the continuation of that tradition based on mutual respect and constructive engagement.”

“I welcome this decision which contributes to strengthening the work of the Court and, more generally, to promoting a rules-based international order. I note that the decision comes at a fundamental juncture in which the Assembly of States Parties and the Court have embarked on a wide-ranging review process to enhance the Rome Statute system in the pursuit of accountability for the gravest crimes of international concern,” expressed Ms. Silvia Fernandez de Gurmendi, President of the ASP in her statement, adding that she “trust[s] this decision signals the start of a new phase of our common undertaking to fight against impunity for such crimes. The Assembly and its subsidiary bodies have always welcomed the participation of the United States, and indeed of all States, in their work as well as encouraged a fruitful cooperation with the Court´s activities.”

Reactions from civil society

“The Trump administration’s perversely punitive sanctions against the ICC showed stark contempt for the victims of grave international crimes and the prosecutors who seek to hold those responsible to account,” said Richard Dicker, international justice director at Human Rights Watch. “In removing this unprecedented threat to the global rule of law, President Biden has begun the long process of restoring US credibility on international justice through the ICC.”

“The United States has a long history of using sanctions to punish human rights abusers, but never before was this tool used to punish an independent court that seeks justice for victims of atrocities," said James A. Goldston, Executive Director of the Open Society Justice Initiative. “We welcome this step by the Biden administration to demonstrate its commitment to human rights, international justice and the restoration of U.S. ideals. We look forward to resuming our work with the Court.”

“The reversal of the sanctions, coupled with the election of a new Prosecutor and judges, all provide a welcome opportunity for the US to re-establish its relationship with the ICC,” stated Alice Mogwe, President of the International Federation for Human Rights.

“Today, the Biden administration took a critical first step towards removing obstacles to international justice and holding human rights abusers around the world accountable. Survivors of human rights abuses turn to the ICC for accountability when the justice system in their countries fails to address the grave injustices that have been perpetrated against them. President Biden has made an important move towards undoing damages done by his predecessor to their courageous cause,” said Daniel Balson, advocacy director at Amnesty International USA. “The decision by the Trump Administration to sanction ICC staff was an act of vandalism against a foundational mechanism of international justice. The Biden administration must now reaffirm the U.S. signature of the Rome Statute establishing the ICC.”

“The American Bar Association welcomes the administration’s decision last week to rescind an executive order issued in June 2020 that imposed sanctions on some officers and personnel of the International Criminal Court (ICC) and their families.  As the ABA said when the sanctions were first imposed, punitive measures, taken against persons performing their institutional duties under international law, weaken the rule of law globally,” stated Patricia Lee, President of the American Bar Association.

“The United States has finally done the right thing and reversed the thuggish sanctions imposed by the Trump Administration. The sanctions were plainly designed to thwart a judicial institution in its pursuit of the rule of law. Ideally, the reversal of sanctions will mark the Biden Administration's start of positive engagement with the Court, at least on a case-by-case basis,” said Professor Jennifer Trahan, NYU Center for Global Affairs; Co-Chair ABILA ICC Committee.

Mark Ellis, Executive Director of the International Bar Association said: “The use of sanctions by the Trump administration to harass ICC personnel was an unprecedented attack on the sanctity of international law. Not only did the sanctions impede important work of the ICC and civil society, but also affected those victims seeking justice. We welcome this change of course and look forward to future renewed signs of America’s commitment to international justice.”

“We are pleased President Biden has finally rescinded President Trump’s unconstitutional sanctions order. This is a victory for our clients and all those who support the ICC’s pursuit of justice,” said Scarlet Kim, staff attorney with the ACLU’s National Security Project. “The unprecedented sanctions on the ICC were yet another terrible legacy of the Trump administration, which made clear its disregard for human rights and the rule of law.”

“The Trump administration’s sanctions against the ICC were an appalling misuse of the U.S. government’s financial powers. These measures sought to intimidate and halt the work of an important accountability institution, put foreign human rights defenders who worked with the ICC at risk of being sanctioned themselves, and gave a green light to authoritarian governments around the world that seek to undermine any institution that might scrutinize their actions and hold them to account,” stated Michael Breen, President and CEO of Human Rights First. “Today’s announcement reversing these measures is a welcome step toward preserving the credibility of U.S. sanctions as a tool for protecting human rights and the rule of law. If the United States has concerns about specific cases or investigations before the ICC, it should address those concerns in a way that allows it to remain a credible voice for justice and accountability.”

“It is fitting that the Biden administration announced this week that sanctions against members of the International Criminal Court, implemented by the Trump administration, have been dropped,” reads the statement of World Without Genocide at Mitchell Hamline School of Law. “Today’s Court was a dream of prosecutors at the Nuremberg trials after World War II. This Court is the most important Court in the world, serving to end impunity for genocide, crimes against humanity, war crimes, and the crime of aggression. We hope that the United States will engage fully with the Court and with the vision to make ‘never again’ someday mean ‘never.’”

“The Biden administration did the right thing today by ending this reckless assault on a critical and independent judicial institution. Former President Trump’s sanctions were issued to help the US and its close allies evade accountability for their own human rights abuses, but their impact went much further by targeting court officials and their urgent work,” said Akila Radhakrishnan, president of the Global Justice Center. “Repeal is a start, but if the Biden administration wishes to be a true champion of human rights and the rule of law, it must fundamentally shift the US relationship with the court. This must include a genuine effort to ratify the court’s Rome Statute to demonstrate that the US commitment to justice is not merely rhetorical.”

“This decision by the United States is therefore an affirmation of its support and commitment to the fight against impunity and to the cause of international criminal justice, to enable victims of human rights abuses to obtain justice and to deter perpetrators of these crimes forever,”  reads the statement from the African Francophone Coalitions for the ICC. “In light of this encouraging decision, the African Francophone Coalitions for the ICC calls on the United States of America to take a major step by joining the large family of States Parties to the ICC. As the African continent, and in particular the Francophone part of it, is where most of the countries in situation are located, the Coalitions of Francophone Africa for the ICC rely heavily on the important contributions of the United States for the proper functioning of the ICC and the achievement of its objectives.”

Read the statement from the Center for Constitutional Rights: Biden Repeal of Trump International Criminal Court Sanctions Welcome but Overdue, Say Lawyers for Victims at ICC

Read the reaction from the American Human Rights Council: AHRC welcomes the Biden Administration’s undoing of Trump’s anti-ICC measures, but is deeply concerned with new approach

Read the statement from the American Branch of the International Law Association: Presidential Statement on Revocation of Executive Order 13928 and Travel Restrictions against ICC Personnel

Read the press release from J Street: J Street Welcomes Biden Administration’s Removal of Trump’s Outrageous ICC Sanctions

 

Reactions of State Parties and other stakeholders

Representatives of State Parties to the ICC welcomed the U.S. decision to remove the sanctions and other restrictions imposed on ICC personnel, including Australia, Austria, Belgium, Canada, Cyprus, Estonia, Finland, Germany ,Ireland, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Slovenia, Sweden ,Switzerland, among others.

Mr. Jean-Yves le Drian, Minister of Europe and Foreign Affairs of France issued a declaration welcoming the announcement and stating that “this decision is excellent news for all those committed to the fight against impunity, multilateralism and an international order based on the rule of law. France reaffirms its unwavering support for the International Criminal Court and its staff, for its independence and for its efforts to improve its functioning. It will continue to cooperate actively with the Court.” (Informal translation)

Spain issued a statement welcoming the decision to revoke the sanctions, adding that “Spain shares with the United States the aim of judicially prosecuting the authors of atrocious crimes and considers that the International Criminal Court constitutes a fundamental element in achieving a universal and independent jurisdiction that contributes to meeting this goal. Spain actively backed the establishment of the ICC and contributes to its reinforcement through the Parliamentary Assembly Board of States Parties, which it is currently a member of." 

Costa Rica stated that “the decision taken by the Biden Administration is oriented in the right direction of fostering a dialogue with the Court that will bring closer the desire for universal justice.”

Stephane Dujarric, Spokesman for the UN Secretary General, stated that “The Secretary-General welcomes the revocation by the United States of the Executive Order on Blocking Property of Certain Persons Associated with the International Criminal Court of 11 June 2020. The International Criminal Court plays an important role in advancing accountability for international crimes. The Secretary-General affirms the continued cooperation of the United Nations under the Relationship Agreement between the United Nations and the International Criminal Court.”

“This important step underlines the US’s commitment to the international rules-based system,” stated EU High Representative/Vice-President Josep Borrell. “The European Union is unwavering in its support for the universality of the Rome Statute and for the ICC. We will stand together with all partners to defend the Court against attempts aimed at obstructing the course of justice and undermining the international system of criminal justice and we will continue to support the ongoing review process to enhance the Rome Statute system and make the Court stronger and more effective.”

Some members of the U.S. Congress also welcomed this decision. Reps. lhan Omar, Jim McGovern and Joaquin Castro issued a joint press release celebrating the repeal of sanctions against ICC staff. In addition, Senator Patrick Leahy commended Secretary Blinken for ending the sanctions.

 

Background of the sanctions

On 11 June 2020, the former President of the United States of America, Donald Trump, issues Executive Order 13928 “Blocking Property of Certain Persons Associated with the International Criminal Court.” The Executive Order authorized economic sanctions against ICC officials engaged in efforts to “investigate U.S. personnel or allied personnel” and those who materially support such activities. It also expanded visa restrictions for ICC officials engaged in those investigations, and for their family members.

The Executive Order was issued following the ICC Appeals Chamber decision to authorize the opening of an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan.

The announcement of Executive Order 13928 generated an unprecedented number of public statements and responses from ICC State Parties, the European Union, the U.N. special procedures mandate holders, and civil society from the U.S. and across the world.

On 2 September 2020, the U.S. Administration announced the designation of sanctions against ICC Prosecutor, Fatou Bensouda, and the Director of the Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko. During the press briefing, the former U.S. Secretary of State, Mr. Pompeo stated that “individuals and entities who continue to materially support those individuals risk exposure to sanctions as well” and there would be visa restrictions “for certain individuals involved in the ICC’s efforts to investigate US personnel,”

In October 2020, the Open Society Justice Initiative (OSJI) and four law professors (Diane Marie Amann, Margaret de Guzman, Gabor Rona, and Milena Sterio) filed a lawsuit to challengethe Executive Order at U.S. Courts. The lawsuit argued that the Executive Order violated constitutional rights of the plaintiffs, including freedom of speech, and prevented them from carrying out work in support of international justice.

On 4 January 2021, a federal judge in the Southern District of New York, United States, granted a preliminary injunction in favor of OSJI and their co-plaintiffs, ordering the Trump Administration not to enforce the Executive Order against them based on free speech grounds.

On 15 January 2021, three law professors and an American Civil Liberties Union (ACLU) attorney (Leila Sadat, Alexa Koenig, Naomi Roht-Arriaza and Steven M. Watt) filed the second lawsuit against the Executive Order, arguing that it violated their First Amendment rights.