On October 1, 2020, three women with deep connections to IntLawGrrls, Professors Diane Marie Amann (founder), Milena Sterio (editor), and Meg deGuzman (contributor), filed suit against the Trump Administration, challenging the legality of Executive Order 13,928 and its implementing regulations. Foley Hoag, LLP represents the plaintiffs, which also include Professor Gabor Rona and Open Society Justice Initiative. The complaint, filed in US District Court for the Southern District of New York, alleges the Executive Order and implementing regulations violate Plaintiffs’ constitutional rights, are ultra vires under the International Emergency Economic Powers Act (IEEPA), and violate the Administrative Procedure Act (APA).
In essence, Trump’s Executive Order empowers Secretary of State Mike Pompeo, in coordination with Treasury Secretary Steve Mnuchin and Attorney General William Barr, to designate and freeze the assets of “foreign persons” who have engaged in International Criminal Court efforts to investigate, arrest, detain or prosecute US personnel without US consent, or personnel of US allies without their consent, or who have “materially assisted” such persons or activities. According to the complaint, those who interact in a prohibited manner with designated persons are themselves subject to designation, as well as to civil and criminal penalties under the IEEPA.
The ICC is by no means a perfect institution, and many have raised legitimate concerns about its judges, procedures, and choices since its establishment, including multiple US administrations. Yet, as others have already explained, Trump’s order is deeply problematic on its merits for myriad reasons. (See previous IntLawGrrls and Opinio Juris posts.) It is also consistent with the Trump Administration’s anti-pluralist and anti-institutionalist populist approach to international courts and tribunals. (See my forthcoming piece in the Maryland Journal of International Law.) What the complaint now adds, is a clear demonstration of the Executive Order’s chilling effect on public debate about the ICC and critical engagement with its work, as well as its hindering of efforts to improve both the court and the quality of international justice.
Following designation of ICC Prosecutor Fatou Bensouda and another high- level court official, Plaintiffs allege they reconsidered or abandoned activities like participating in initiatives to improve the ICC’s functioning, training civil society and victims’ rights groups on effective engagement with the Office of the Prosecutor and the ICC, providing advice to the Prosecutor on issues relevant to children and armed conflict, submitting amicus curiae briefs in cases involving alleged atrocities around the world, and attending conferences bringing together scholars and professionals on topics involving international justice and the ICC. Further, their concerns about potential civil and criminal liability have kept them from signing statements critical of the US Administration’s stance toward the ICC, as well as writing or publicly commenting on the ICC’s work. Plaintiffs argue this chilling effect, on a remarkably broad range of activities, violates their First Amendment rights to free speech.
It is the Executive Order and implementing regulations’ ambiguities that are at fault. What does it mean to “materially assist” a designated person? Is providing advice about whether the detention and mistreatment of children during the war in Afghanistan constitutes a crime against humanity a violation of the Order? What about filing an amicus brief in a case involving a US ally? Is participating in a process to strengthen the technical capacity of the Office of the Prosecutor, or working with victims’ groups a violation of the Order? And what exactly is a “foreign person”? Does it include dual nationals? Without further clarification, Plaintiffs – and the rest of us – are left in the dark about possible designation and subjection to civil and criminal penalties. They also result, Plaintiffs allege, in no notice as to what conduct is covered, permitting potentially arbitrary enforcement of the Executive Order, in violation of their Due Process rights under the Fifth Amendment.
As remedies, Plaintiffs seek declaratory relief that the Executive Order and regulations violate the First and Fifth Amendments, are ultra vires to the IEEPA and violate the APA. They request preliminary and permanent injunctions prohibiting Defendants from designating them under the Executive Order or regulations, or enforcing the IEEPA’s civil and criminal penalties against them.
As IntLawGrrls readers undoubtedly know, this is not the first time that the Trump Administration has sought to undermine an international adjudicative body, rather than engaging in meaningful and substantive reform efforts. Others include boycotting sessions of the Inter-American Commission on Human Rights, threats to defund it, and failing to support its own candidate for election, as well as continuous blocking of appointment to the WTO Appellate Body’s Dispute Settlement Body Appellate Body, risking its collapse. What distinguishes this particular action is its chilling effect on free debate and discussion, through the possible use of civil and criminal penalties against academics, advocates, and non-governmental organizations.
We should all pay attention to what happens next.