On April 1, 2021, United States President Joseph R. Biden terminated the national emergency declared in Executive Order 13928 of June 11, 2020, which blocked property of certain persons associated with the International Criminal Court (ICC).

Biden Executive Order

The new Executive Order explained that the U.S. continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the U.S. and its allies without their consent or referral by the United Nations Security Council.  President Biden said the U.S. “will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

Statement by U.S. Secretary of State Antony J. Blinken

On April 2, 2021, U.S. Secretary of State Antony J. Blinken in a press statement explained that, as a result of the new Executive Order, the U.S. has removed the sanctions imposed by the prior administration against ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, the Head of Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.

According to Blinken, the U.S. continues to disagree strongly with the ICC’s actions concerning the Afghanistan and Palestinian situations.  Blinken also reiterated the U.S. government’s objection to the ICC’s efforts to assert jurisdiction over personnel of non-States Parties such as the U.S. and Israel.  Blinken continued that the U.S. concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.

According to Blinken, U.S. support for the rule of law, accesses to justice, and accountability for mass atrocities are significant U.S. national security interests that are protected and furthered by engaging with the rest of the world to meet the challenges.  The U.S. government leadership was important in forming the Nuremberg and Tokyo Tribunals after World War II and bringing accountability in the Balkans, Cambodia, Rwanda and elsewhere.  The U.S. government leadership has supported various international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to bring justice for victims of atrocities.

Blinken mentioned the U.S. is encouraged that States parties to the Rome Statute are considering a large range of reforms to assist the ICC prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes.

Litigation against Trump’s Executive Order Authorizing Sanctions on Officials of the ICC

The Biden Executive Order precedes by days a deadline on April 5 for the Biden administration to respond to a lawsuit by civil society (Open Society Justice Initiative) and law professors challenging the constitutionality of the executive order.  In October, the OSJI and four law professors brought a lawsuit against the U.S. government in U.S. District S.D.N.Y., claiming that the executive violated their rights of free speech and association.  Some of the professors worked in various capacities for the ICC prosecutor and victims of alleged atrocities.

Already, the Biden administration decided not to appeal a preliminary injunction the court issued in the litigation barred the implementation of the Executive Order.

The American Civil Liberties union and several U.S. citizens also brought a lawsuit challenging the Trump Executive Order.  The Biden administration would have had to respond on April 9.

Analysis

The new Executive Order by President Biden and its timing illustrate the utility of the lawsuits.

The new E.O. and the Blinken statement also show an effort by the Biden administration to re-engage in acting against international atrocities and international human rights more generally.

The current issue of the IELR will have more discussion on these developments.