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Permanent premises of the International Criminal Court in The Hague, the Netherlands. © 2018 Marina Riera/Human Rights Watch
(Washington, DC) – A legal challenge to a United States executive order that threatens to undermine the work of the International Criminal Court (ICC) seeks to protect victims’ access to justice, Human Rights Watch said today. On October 1, 2020, the Open Society Justice Initiative, together with four law professors, filed a complaint before a US federal court alleging violations of plaintiffs’ rights under the US constitution, including to freedom of speech.
A sweeping executive order issued on June 11 by President Donald Trump declared a national emergency and authorized asset freezes and family entry bans that could be imposed against certain ICC officials and others assisting them. On September 2, the Trump administration announced that the US had designated the ICC prosecutor and another senior official within the court’s Office of the Prosecutor for sanctions. The Trump administration had repeatedly threatened action to thwart ICC investigations in Afghanistan and Palestine into conduct by US and Israeli nationals.
“The Trump administration’s perverse use of sanctions in a bid to frustrate the work of the ICC is an egregious affront to victims of the world’s worst crimes,” said Richard Dicker, international justice director at Human Rights Watch. “We look forward to a swift ruling by the court to provide much-needed clarity as to the legality of the executive order.”
The plaintiffs allege that the threat of civil and criminal penalties associated with enforcement of the executive order or designation for sanctions under the order has caused them to “discontinue, abandon, or reconsider” a range of activities in support of international justice, including advising ICC prosecutors, assisting nongovernmental organizations to engage with the court, filing amicus briefs before the ICC, and speaking at conferences.
The complaint, filed before the Southern District of New York, names President Trump and other senior administration officials. In addition to free speech violations, it alleges due process violations of the US Constitution’s Fifth Amendment and other violations of US law. The lawsuit seeks to stop enforcement of the executive order against the plaintiffs while its constitutionality is under court review.
The ICC is the permanent international court created to try people accused of genocide, war crimes, crimes against humanity, and the crime of aggression. Currently, 123 countries have joined the court, nearly two-thirds the membership of the United Nations. The court has opened investigations into alleged atrocities in 12 countries, including Sudan, Myanmar, and Afghanistan.
In response to Trump’s executive order in June, 67 ICC member countries, including key US allies, issued a joint cross-regional statement expressing “unwavering support for the court as an independent and impartial judicial institution.” Following the September designations, the European Union, the president of the ICC’s Assembly of States Parties, and nongovernmental organizations issued statements. ICC member countries have repeatedly affirmed their support for the court.
