The recent review of the U.S. human rights record at the United Nations through the Universal Periodic Review process yielded 347 recommendations for improvement, 80% of which the U.S. accepted. Among them were several urging the U.S. to rescind a Trump-era executive order targeting the International Criminal Court (ICC) and those who support it. Just this week, U.S. Secretary of State Antony Blinken affirmed U.S. support for the multilateral system, claiming the U.S. has “put that commitment into practice.” It is a strange sort of “commitment” that allows a government to penalize those whose offense is their action to support justice and accountability.

On June 11, 2020, the former president issued Executive Order (EO) 13928, authorizing draconian consequences for those who help the ICC or engage with any person designated under it. On September 2, the administration designated the ICC’s lead prosecutor, Fatou Bensouda, and a top ICC official, Phakiso Mochochoko, under the order imposing crippling economic and travel penalties on them. Those who dare engage with them continue to face severe financial and criminal punishments, including up to twenty years in prison.

U.S. sanctions, a coercive economic power tool, are traditionally reserved for gross human rights abusers and war criminals, not civil servants or human rights lawyers seeking justice. Many—from U.S. allies, former sanctions officials, legal scholars, former U.S. war crimes ambassadors, judges and prosecutors, and civil society—saw this order for what it truly was: A cynical attack on a multilateral institution whose leadership refused to buckle under Mafioso-like threats from Washington.

The UN Special Rapporteurs, a group of human rights experts, wrote to the U.S. government reminding it that sanctions against ICC staff “constitute[] not only a clear violation [of] their privileges and immunities but also a breach of a broad array of human rights and fundamental freedoms” including the prohibition on ex post facto punishment, the right of due process, the presumption of innocence and the freedom of movement. They also warned that the order would negatively affect human rights defenders and civil society organizations who engaged with the Court.

In response to the EO, the Open Society Justice Initiative, a public interest law center that works with the ICC, and four eminent international law professors including a special adviser to the ICC prosecutor on children, sued the U.S. government and sought an injunction preventing the government from enforcing the order against them. (We both work for the Justice Initiative and are part of the legal team that developed the case.) The plaintiffs argued that the order violated their right to free speech, as it effectively prevented their collaboration with the ICC on cases of war crimes, crimes against humanity, and genocide. The judge agreed, temporarily enjoining the order on constitutional grounds. The case remains in litigation while the court makes a final determination on its legality.

Days after President Biden took office, the U.S. State Department publicly stated that the executive order “will be thoroughly reviewed as we determine our next steps.” When pressed on the topic on subsequent occasions, the State Department continued to maintain that the order remains “under review.”

And so here we are: More than two months into a new administration with a stated commitment to multilateralism (and not incidentally, to human rights), lawyers, professors, and activists seeking justice for gross human rights violations are unable to do their work for fear of punishment, including sanctions so serious that some characterize them as “economic death.” Meanwhile, the administration has issued multiple similar sanctions (issued under the same statute, the International Emergency Economic Powers Act (IEEPA)) against military coup leaders in Myanmar, Saudis responsible for journalist Jamal Khashoggi’s murder, and Russians who used chemical weapons against dissidents. All the while, the State Department is lauding this sanctions tool for its ability to “send a clear signal that…abuse of human rights have severe consequences,” and demonstrate that the “Biden Administration has recommitted the United States to a foreign policy centered on democracy, human rights, and equality.”

In 2018, the Trump administration withdrew from the UN Human Rights Council, the first time a member state had voluntarily left. The Biden administration reversed this position, announcing its “immediate” and “robust” re-engagement with the Council as part of its foreign policy centered on human rights. Retaining an unconstitutional executive order that obstructs international justice and punishes those who fight for it is not only perverse. It is also deeply counterproductive, demonstrating a kind of doublespeak that risks alienating communities that care about justice, with whom this administration should want to make common cause. Fortunately, this misstep is easy to fix. Simply rescind the executive order, and we stand ready to work with the U.S. government to ensure that it “take[s] up the mantle of global leadership” (Blinken’s words again) in deeds as well as words.

Natasha Arnpriester, Advocacy Officer, and Betsy Apple, Advocacy Director, are part of the legal team for the Open Society Justice Initiative which is currently a co-plaintiff in Open Society Justice Initiative et al. v. Donald Trump et al. 

Suggested citation: Natasha Arnpriester and Betsy Apple, Lockdown, Deeds, Not Words: The U.S. Must Rescind the Anti-ICC Executive Order Now, JURIST – Professional Commentary, April 1, 2021, https://www.jurist.org/commentary/2021/04/arnpriester-apple-icc-sanctions-executive-order/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org.