On June 11, 2020, United States President Donald J. Trump issued an executive order imposing sanctions on “certain persons associated with the International Criminal Court.”
The Executive Order
The Executive Order cited as authority for the action the Constitution and the laws of the United States, including the International Emergency Economic Powers Act (IEEPA), the National Emergencies Act (NEA), section 212(f) of the Immigration and Nationality Act of 1952, and section 301 of title 3, United States Code.
President Trump in the E.O. finds that the efforts of the ICC threaten U.S. national security and foreign policy:
“The ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest. These actions on the part of the ICC, in turn, threaten to infringe upon the sovereignty of the United States and imped the critical national security and foreign policy work of the United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.”
The Executive Order also refers to the enactment in 2002 of the American Service-Members’ Protection Act, which “rejected the ICC’s overbroad, non-consensual assertions of jurisdiction.”
According to the Executive Order, the U.S. will impose tangible and significant consequents on those responsible for the ICC’s misconduct. They may include the suspension of entry into the U.S> of ICC officials, employees, and agents, as well as their immediate family members.
Justifications of the Executive Order and Imposition of Sanctions
National Security Advisor Robert O’Brien made a statement before press alongside Secretary of State Mike Pompeo, Secretary of Defense Mark Esper, and Attorney General Bill Barr. O’Brien said “The ICC’s effort to target American servicemen and women and other public servants are unfounded, illegitimate, and make a mockery of justice”.
Barr stated “(w)e are concerned that foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda.” The Justice Department received “substantial, credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”
The ICC investigation that triggered the Executive order will focus on possible crimes committed by the Taliban and other groups between 2003 and 2014, including alleged mass killings of civilians, as well as the alleged torture of prisoners by Afghan authorities and, to a lesser extent, by U.S. forces and the CIA.
The ICC only investigates when national governments have not already investigated atrocities and crimes against humanity.
Human rights groups criticized the order as overly broad and vague and could subject human rights researchers at risk in countries allied with the U.S., such as the Philippines.
Although the Executive Order states that the ICC investigation into Afghanistan atrocities threatens to subject U.S. government and allied officials to potential arrest, U.S. allied officials are members of and support the ICC.
While the press conference talked of a “politically motivated court,” President Trump has intervened in several cases involving war-crimes accusations even though military justice experts and senior defense officials have opposed his intervention.
The Trump Administration’s charge of political interference and corruption in the ICC will ring hollow. Three emoluments suits have been brought against the President. The President has dismissed five inspector generals, including ones investigating improprieties at the defense and state departments. Mr. Barr has been embroiled in a series of political interference allegations, including his whitewash of the Robert Mueller report, his overriding the sentencing memorandum of DOJ attorneys for former Trump campaign adviser Roger Stone, his effort to dismiss the plea of former Trump national security advisor Michael Flynn, the impeachment of Trump for his effort to have the Ukrainian head of state investigate the presumptive Democratic presidential candidate Joe Biden and his son, and his criticism and firing of his first Attorney General Jeff Sessions for recusing himself in the special counsel’s investigation.
Already the U.S. has revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda. The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.
The imposition of sanctions is a setback to the effort to hold perpetrators of war crimes accountable and to the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.
The current issue of the IELR will have a more comprehensive discussion of the sanctions.
 50 U.S.C. § 1701 et seq.
 50 U.S.C. § 1601 et seq.
 8 U.S.C. §1182(f).
 22 U.S.C. §7241 et seq.
 For a discussion of the decision by the ICC Appeals Chamber authorizing the Afghanistan investigation, see Michael Plachta, ICC Appeals Chamber Authorizes the Prosecutor’s Request to Investigate War Crimes in Afghanistan, 36 Int’l Enforcement L. Rep. 104 (Mar. 2020).
 Robbie Gramer and Jack Detsch, Trump Order Treats International Prosecutors Like War Criminals, Foreign Policy, June 11, 2020.
 Karen DeYoung and Carol Morello, Trump authorizes sanctions against ‘corrupt’ International Criminal Court, Wash. Post, June 12, 2020.
 Id. See also Mikhaila Fogel, When Presidents Intervene on Behalf of War Criminals, Lawfareblog, May 27, 2019 https://www.lawfareblog.com/when-presidents-intervene-behalf-war-criminals (discussing President Trump’s preparation of pardons for, among others, Special Operations Chief Edward Gallagher, a Navy SEAL accused of shooting unarmed civilians and stabbing an enemy prisoner to death; Maj. Mathew Golsteyn, who was accused of killing an unarmed Afghan man who had been connected to the Taliban; and a group of Marine Corps snipers charged in connection with urinating on the bodies of dead Taliban fighters).
 Melissa Quinn, The internal watchdogs Trump has fired or replaced, May 19, 2020 https://www.cbsnews.com/news/trump-inspectors-general-internal-watchdogs-fired-list.
 Andrew Prokop, The fiasco at Bill Barr’s Justice Department, explained, Vox, Feb 13, 2020.
 Roger Parloff ,The Shoddy History Behind a Key Precedent in the Flynn Case, Lawfareblog, June 11, 2020 https://www.lawfareblog.com/shoddy-history-behind-key-precedent-flynn-case; Josh Gerstein and Kyle Cheney, Everything about this is irregular’: Ex-judge tapped to review Flynn case blasts Trump DOJ, Politico, June 10, 2020 https://www.politico.com/news/2020/06/10/gleeson-flynn-sullivan-barr-justice-department-311018.
 Trump fires Attorney General Jeff Sessions, BBC, Nov. 18, 2018.
 Naha Toosi and Natasha Bertrand, Trump authorizes sanctions against the International Criminal Court, Politico, June 11, 2020 https://www.politico.com/news/2020/06/11/white-house-international-criminal-court-sanctions-313070
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