Trump's ICC Sanctions Invite Lawsuit
Updated: Oct 26, 2020
Permanent Premises of the International Criminal Court by United Nations
Article by Amina Fahmy,
On Thursday, October 1, the Open Society Justice Initiative and four US-based law professors filed suit against President Donald Trump and several officials over their authorization of sanctions on the International Criminal Court (ICC) and its supporters. The suit alleges that the sanctions violate the plaintiffs’ free speech and prevent them from carrying out work in support of international justice. President Trump first issued a broad and convoluted executive order condemning the ICC in June, and issued sanctions specifically naming Head Prosecutor Fatou Bensouda and Head of Jurisdiction Phakiso Mochochoko in sanctions on September 2. Both rounds of sanctions were prompted by the ICC’s March decision to move forward with its investigation into potential crimes against humanity carried out by the US military and the CIA in Afghanistan, and for a potential investigation into crimes committed in Palestine. The ICC is able to proceed with the investigation because Afghanistan is party to the court.
The lawsuit requests that the enforcement of President Trump’s executive order be halted until the court has come to a decision about the constitutional concerns it raises. In the meantime, the plaintiffs have paused some of their work in support of the ICC, in fear that the broad nature of the order could threaten academics and human rights groups cooperating with the ICC. Even Berkeley Law’s International Human Rights Workshop declined to participate in a project directly in support of ICC lawyers.
Though this move by President Trump is unprecedented and has been widely condemned in the legal and academic communities, it is only the latest in a long history of American opposition to the ICC. Though President Clinton paid the institution lip service at the end of his term by signing the Rome Statute, he did not support its ratification, and American support for the ICC was effectively quashed by the 2002 enactment of the American Service-Members’ Protection Act. Amidst this background of American opposition to the ICC, Trump’s recent move is particularly concerning because his use of sanctions is perverse or as Richard Dicker, International Justice Director at Human Rights Watch describes, “devised for alleged terrorists and drug kingpins, against prosecutors seeking justice for grave international crimes.”
The outcome of the lawsuit remains to be seen, but it is clear that Trump, even as he faces a potential end to his presidency, remains determined to withdraw the United States from the international community. If Trump is voted out of office, the succeeding president will likely reengage with a number of international organizations to a relative degree. However, America’s longstanding refusal to participate in the court and its ongoing investigation into US actions raises concerns that future American leaders will be less inclined to reengage with the ICC.
Amina Fahmy is a first year law student at Berkeley who is interested in civil rights and international human rights law. Amina's interests in law are rooted in her undergraduate study of social and political movements in the Middle East. Prior to attending Berkeley, Amina spent two years living, working, and studying Arabic in Cairo as a Center for Arabic Study Abroad Fellow.