In the spring of 2020, the Appeals Chamber of the International Criminal Court (ICC) authorized the ICC's prosecutor to investigate alleged international crimes committed in Afghanistan. The Trump administration strongly condemned this decision. In an escalation of retaliatory measures against the ICC, President Trump signed an executive order authorizing economic sanctions against foreign persons involved in the investigation and visa restrictions against those persons and their immediate family members. The ICC described these actions as a threat to the rule of law.
On April 12, 2019, a Pre-Trial Chamber of the ICC declined to authorize the prosecutor to conduct an investigation into alleged international crimes committed in Afghanistan, reasoning that such an investigation would not advance the interests of justice.Footnote 1 On March 5, 2020, the ICC Appeals Chamber reversed, holding that the Pre-Trial Chamber erred in declining to authorize the investigation.Footnote 2 The Appeals Chamber directly authorized the prosecutor to begin investigations into “‘alleged crimes committed on the territory of Afghanistan . . . since 1 May 2003, [and] other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties . . . since 1 July 2002.’”Footnote 3 This authorization permits the prosecutor to investigate members of the U.S. armed forces and the U.S. Central Intelligence Agency for alleged crimes committed not only in Afghanistan, but also for alleged related crimes committed in detention centers in Poland, Romania, and Lithuania.Footnote 4
Even before the Appeals Chamber's decision, the Trump administration had strongly resisted the prospect of an ICC investigation regarding Afghanistan that could encompass alleged crimes committed by U.S. citizens.Footnote 5 In April 2019, the United States revoked ICC Prosecutor Fatou Bensouda's visa because her request for authorization of an investigation into Afghanistan had described members of the U.S. armed forces and the Central Intelligence Agency as potential perpetrators of war crimes.Footnote 6 When the Pre-Trial Chamber denied the prosecutor's request in April of 2019, Trump praised the decision as a “major international victory . . . for the rule of law,” but also warned that “[a]ny attempt to target American, Israeli, or allied personnel for prosecution will be met with a swift and vigorous response.”Footnote 7
In the months following the decision of the Appeals Chamber, Trump administration officials reacted angrily to the prospect of U.S. personnel being investigated by the ICC. Secretary of State Mike Pompeo asserted that “we will not stand by as our people are threatened by a kangaroo court.”Footnote 8 He also accused the ICC of being “grossly ineffective and corrupt,” stating that the ICC has operated for eighteen years and secured only four convictions.Footnote 9 Secretary of Defense Mark Esper praised U.S. military personnel and asserted that the United States maintains the right to try its own citizens and that they will never “be subjected to the judgments of unaccountable international bodies.”Footnote 10
On June 11, 2020, Trump issued an executive order declaring a national emergency with respect to the ICC's actions and authorizing economic sanctions and visa restrictions against those involved in conducting investigations against U.S. personnel or against the personnel of a U.S. ally without that ally's consent.Footnote 11 The Executive Order authorizes economic sanctions against “any foreign person determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General:”
(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.Footnote 12
Additionally, those persons who fit the above criteria and their immediate family members could also be denied “unrestricted immigrant and nonimmigrant entry into the United States.”Footnote 13
Trump invoked the International Emergency Economic Powers Act (IEEPA) in his authorization of economic sanctions.Footnote 14 The IEEPA empowers the president to regulate the use of any property within U.S. jurisdiction “in which any foreign country or a national thereof has any interest,”Footnote 15 but only when the president does so to address “an unusual and extraordinary threat with respect to which a national emergency has been declared.”Footnote 16 When the IEEPA was first enacted in 1977, presidents largely targeted foreign governments and geographical regions.Footnote 17 Since then, presidents have increasingly targeted “groups and individual persons . . . engaged in specific activities.”Footnote 18 This Executive Order is the first such order invoking the IEEPA to target individuals for their participation in an international organization.Footnote 19
In response, the ICC issued a statement “express[ing] profound regret at the announcement of further threats and coercive actions . . . against the Court and its officials.”Footnote 20 The statement continued:
These are the latest in a series of unprecedented attacks on the ICC, an independent international judicial institution, as well as on the Rome Statute system of international criminal justice, which reflects the commitment and cooperation of the ICC's 123 State Parties, representing all regions of the world.
These attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court's judicial proceedings. They are announced with the declared aim of influencing the actions of ICC officials in the context of the Court's independent and objective investigations and impartial judicial proceedings.
An attack on the ICC also represents an attack against the interests of victims of atrocity crimes, for many of whom the Court represents the last hope for justice.Footnote 21
On the day before the Executive Order issued, ten states parties to the Rome Statute who are presently members of the UN Security Council issued a joint statement reiterating their commitment to the ICC and to preserving its independence.Footnote 22
