In January 2021, following a legal challenge brought by my organization together with four international law professors, District Judge Katherine Polk Failla held that the order likely breached the First Amendment’s free speech guarantee and preliminarily barred its enforcement.
In fact, the order’s draconian sanctions, including financial penalties backed up by the possibility of imprisonment for anyone who helps the ICC investigate or prosecute war crimes, crimes against humanity, or any other crimes within the Court’s jurisdiction that implicate U.S. personnel or U.S. “allies” without their government’s consent, are not just unconstitutional. They betray America’s historic commitment to international justice.
I and many other advocates in the United States and around the world were hopeful that, when President Joe Biden took office in January, he would swiftly reverse this assault on the international rule of law. But more than two months later, despite the court’s finding and a similar lawsuit since filed in California, the order remains on the books.
Biden’s first foreign policy speech this February pledged to reboot America’s foreign policy to embrace multilateral institutions and reassert America’s values on the world stage. Yet the president has allowed an order to stand that punishes the very people who assist a court created to deliver accountability for the worst crimes.
Trump signed Executive Order 13928 last June as the Court was intensifying its examination of purported crimes in Afghanistan and Israel. Though the inquiry in Afghanistan has focused on crimes by the Taliban and Afghan government forces, ICC Prosecutor Fatou Bensouda has noted a (comparatively) smaller number of incidents of torture and other crimes by U.S. soldiers and CIA agents during the Bush-era war on terror. In Israel, the Prosecutor has signaled that she is looking at crimes by both Palestinians and Israelis. In September, citing the purported need to protect U.S. personnel and allies, the Trump administration blocked the Prosecutor and a senior aide from accessing U.S. property or engaging in U.S. banking transactions.
While the United States is not one of the 123 countries that has consented to the ICC’s jurisdiction, it has in the past periodically provided support, including by facilitating the arrest and transfer of indictees. For anyone following the U.S. relationship with the ICC over two decades, Trump’s order represented a new low. The order threatens lawyers, judges, and activists – who are engaged in efforts to ensure accountability for war crimes and human rights abuses – with the very legal penalties traditionally used to punish war criminals, terrorists, and human rights abusers.
Like so many of the former president’s policies, these actions have betrayed American ideals and needlessly undermined American interests. From Nuremberg to Bosnia, the United States has been a leader in establishing, funding, and staffing international tribunals to prosecute heinous crimes.
Even past administrations who had their differences with the ICC have found ways to support its broader mission. President George W. Bush’s decision not to exercise a Security Council veto in 2005 enabled an ICC probe into crimes in Darfur, Sudan. Eight years later, President Barack Obama helped the ICC gain custody over a Congolese warlord known as “the Terminator.”
But Trump’s order is not just wrong. It is pointlessly counter-productive, jeopardizing through overreach the legitimate use of financial sanctions and prompting Washington’s closest allies to call out the hypocrisy of U.S. demands of special treatment for its own.
And of course, even taking its purported purpose at face value, the truth is that the executive order is also unnecessary: the Court is currently so over-worked and under-resourced that it is not likely soon, if ever, to charge (let alone secure custody of) any American personnel implicated in Afghan abuses. And, in the event it did pursue charges, the United States could forestall prosecution by doing what it should have done years ago: Pursue its own thorough and transparent investigation of any abuses.
Surely, President Biden and his foreign policy team know all this. Admittedly, they have more than a few other priorities on their plate. But the longer this order remains in force, the more flagrant is the contradiction with the president’s public ambition to restore credibility to the United States in the international arena.
The U.S. government must file a response to our lawsuit by April 5. Will it really defend the former administration’s reckless order? Or will the new administration end this charade and rescind an embarrassing hangover from its predecessor? If it’s true that “America is back” as a constructive partner in world affairs, here’s hoping that common sense prevails.
[Editor’s note: Author is the executive director of Open Society Justice Initiative, a co-plaintiff in Open Society Justice Initiative et al. v. Donald J. Trump et al.]