BREAKING: Biden Revokes Executive Order Sanctioning Int’l Criminal Court Principals

UPDATED It’s been a very good couple of weeks for the United States’ human rights foreign policy.

In breaking news, the United States today revoked Executive Order 13928, which had enabled financial sanctions against the personnel of the International Criminal Court (ICC). The Biden administration also withdrew any travel restrictions imposed under other authorities. We’ve covered this EO extensively in the past, tracking the (almost uniformly) negative international reactions as well as the impact on U.S. lawyers, witnesses, and others inside the United States and on the Court. Invoking the long legacy of U.S. support for international justice efforts, the statement from Secretary of State Antony Blinken announcing this move (which is reproduced in full below) indicated:

We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.  We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.  … We are encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. We think this reform is a worthwhile effort.

Secretary Blinken’s remarks were preceded by an Executive Order (dated yesterday) terminating the “national emergency” declared in EO 13928 with respect to the ICC.

The revocation comes just days before the Biden administration would have been on the hook to defend the EO in litigation brought by the Open Society Justice Initiative and four dual nationals (see their Just Security piece here), who might be subject to sanction for their work with the ICC. (Two personal testimonies on the impact of the EO are here and here; and views more in favor of the effort behind the EO here and here). The court-imposed deadline to respond to the complaint would have been Monday, April 5. Notably, the Biden administration had already declined to appeal a preliminary injunction awarded in the litigation barring the implementation of the order (see our coverage here). A second lawsuit brought by the American Civil Liberties Union and several U.S. citizens will also likely be considered moot. The government’s response to that complaint would have been due on April 9th.

Early on, the incoming Biden administration indicated that the sanctions would be subject to a “thorough review.” The Biden team also foreshadowed that their administration would support reforms to “help the court better achieve its core mission of punishing and deterring atrocity crimes” and may cooperate with the Court in “exceptional cases.” During the United States’ Universal Periodic Review process before the U.N. Human Rights Council, which concluded recently, the ICC made a cameo appearance when several states criticized the EO and called for its revocation. In its response, the United States noted:

The decision of the prior Administration to impose these sanctions will be reviewed as we determine next steps. … We continue to have concerns about the ICC’s activities related to the Afghanistan and Palestinian situations. We support a broad range of measures to prevent impunity for international crimes through investigations and prosecutions at international, hybrid, and domestic courts. There may be exceptional cases where we consider cooperating with the court as we sometimes have in the past. We will weigh the interests at stake on a case-by-case basis when cooperation may be consistent with U.S law and policy.

Incidentally, the United States agreed to approximately 80 percent of the recommendations generated during the human rights review process. (The U.S. 2020 UPR report was submitted in August.)

What Took So Long?

The delay in revoking the EO took many by surprise, although there were hints that it was coming. Critics argued that the Biden administration should have rescinded the EO immediately upon taking office while also reversing a number of other disastrous Trump (and Pompeo) policies. The timing, however, was delicate. Taking the actions sooner could have been perceived as triggering, or being a direct response to, developments at the Court in two situations of acute concern—Afghanistan and Palestine. (Indeed, since the inauguration, the Court has clarified the scope of the ICC’s territorial jurisdiction in Palestine, and the Prosecutor has indicated an intent to open an investigation into potential war crimes). As argued by Kip Hale on these pages, the Biden administration is clearly approaching the ICC from a rule-of-law perspective, no matter its concerns with any investigation that might materialize in the Afghanistan situation. In any case, with today’s announcement, the Biden administration got to the right place with respect to the EO.

The revocation of the EO comes on the heels of two important rulings by the ICC. The first is a $30 million reparations ordercontaining collective and individualized components—against Bosco Ntaganda, who was convicted of committing war crimes and crimes against humanity in the Democratic Republic of Congo (DRC). Because Ntaganda has been declared indigent, the international community will need to find ways to fund these reparations if they are to reach Ntaganda’s victims. The second important ruling came from the Appeals Chamber, which affirmed the Trial Chamber’s earlier conviction and rejected all of Ntaganda’s grounds of appeal. The timing of the EO revocation vis-à-vis these developments is particularly poignant given the United States’ critical role in transferring Ntaganda to The Hague after he turned himself in at the U.S. embassy in 2013 in Kigali, Rwanda, when his M23 forces were routed in neighboring DRC. This marked one of the U.S. government’s most tangible and consequential contributions to the work of the Court.

Other Human Rights Developments

In other welcome human rights news recently, Secretary Antony Blinken announced that he was repudiating the highly controversial report from ex-Secretary Mike Pompeo’s Commission on Unalienable Rights (see our prior coverage here), which has been disbanded. In so doing, Blinken made a point of rejecting the idea that there is a hierarchy of rights as posited by the commission, which prioritized the rights to property and religious liberty over all other rights. Said Blinken: “There is no hierarchy that make some rights more important than others.” He further noted:

Past unbalanced statements that suggest such a hierarchy, including those offered by a recently disbanded State Department advisory committee, do not represent a guiding document for this administration. At my confirmation hearing, I promised that the Biden-Harris administration would repudiate those unbalanced views. We do so decisively today.

Blinken issued these remarks on the occasion of releasing the State Department’s annual Human Rights Report on March 30 (the 45th such report since the Bureau of Democracy, Human Rights and Labor (DRL) was created by statute in 1977). (See the final chapter of this book for a more detailed history).

Blinken promised that DRL would release an addendum to the 2020 report devoted to the enforcement of reproductive rights (including maternal health issues, access to contraception, and discrimination against women in health care). Earlier annual reports included materials dedicated to reproductive rights, but the Trump administration largely eliminated this material from the report’s coverage in 2017 (the only exception being some limited reporting on “coercive population control”). By contrast, Blinken affirmed that: “Women’s rights—including sexual and reproductive rights—are human rights.” Incidentally, the report also confirmed earlier determinations that the violence against the Uyghurs in Xinjiang constitutes genocide, giving the State Department’s imprimatur to this conclusion.

All this is consistent with the commitment by President Biden to “put[] human rights back at the center of American foreign policy [and] bring to bear all the tools of our diplomacy to defend human rights and hold accountable perpetrators of abuse.” Of course, there has been sharp criticism that the administration failed to fully utilize all available measures in the wake of evidence, acknowledged by the administration, of the involvement of the Saudi Crown Prince Mohammed bin Salman in the brutal assassination of Jamal Khashoggi in 2018 in the Saudi consulate in Turkey.

The positive developments in U.S. policy come amidst a number of other welcome moves, including reengaging “robustly” with the U.N. Human Rights Council after Trump relinquished the U.S. seat; reversing the Mexico City Policy (a.k.a. the “global gag rule,” which barred U.S. funds from going to organizations that even discuss abortion), as promised in Biden’s ambitious Agenda for Women; and restoring protections against workplace discrimination of LGBTQ+ people and transgender service in the military.

Although it’s been a good week for U.S. human rights policy, all is most certainly not well in the world. Blinken in his introduction to the annual human rights report noted the retreat from human rights across the globe and the deleterious impact the coronavirus pandemic has had on human rights practices.

STATEMENT BY SECRETARY ANTONY J. BLINKEN

April 2, 2021

Ending Sanctions and Visa Restrictions against Personnel of the International Criminal Court

Today, President Biden revoked Executive Order 13928 on “Blocking Property of Certain Persons Associated with the International Criminal Court (ICC),” ending the threat and imposition of economic sanctions and visa restrictions in connection with the Court. As a result, the sanctions imposed by the previous administration against ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor, have been lifted. The Department of State also terminated the separate 2019 policy on visa restrictions on certain ICC personnel. These decisions reflect our assessment that the measures adopted were inappropriate and ineffective.

We continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations.  We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.  We believe, however, that our concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.

Our support for the rule of law, access to justice, and accountability for mass atrocities are important U.S. national security interests that are protected and advanced by engaging with the rest of the world to meet the challenges of today and tomorrow. Since the Nuremberg and Tokyo Tribunals after World War II, U.S. leadership meant that history permanently recorded fair judgments issued by international tribunals against justly convicted defendants from the Balkans to Cambodia, to Rwanda and elsewhere. We have carried on that legacy by supporting a range of international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to realize the promise of justice for victims of atrocities. We will continue to do so through cooperative relationships.

We are encouraged that States Parties to the Rome Statute are considering a broad range of reforms to help the Court prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes. We think this reform is a worthwhile effort.

 

 

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About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).