Good riddance to bad rubbish.
That is the most printable phrase that jumps to mind with the news that today, a full 72 days after his inauguration, President Joe Biden finally has rescinded Executive Order 13928, the attack against the International Criminal Court that his predecessor launched in June of last year.
The rescission means that Fatou Bensouda, the ICC Prosecutor, and Phakiso Mochochoko, head of her office’s diplomatic division, are freed from the U.S. financial sanctions they have suffered since September. It also means that the Prosecutor may resume taking advice and accepting assistance from individuals and organizations silenced out of justified fear the order would be used to impose financial, if not criminal, sanctions upon them.
I am one of them.
I wrote here last June of my fear that the order would force me to stop my long-standing pro bono service as Special Adviser to the International Criminal Court Prosecutor on Children in and affected by Armed Conflict. Bensouda’s September designation under the order did just that. And so on October 1, I joined Open Society Justice Initiative and law professors Milena Sterio, Margaret deGuzman, and Gabor Rona in suing the president and others for infringing our First Amendment rights, based on an order that itself violates U.S. statutory law. Today’s rescission comes just days before the U.S. government defendants – against whom the court already had issued a preliminary injunction – were required to answer our complaint.
Today’s rescission may tempt some simply to breathe a sigh of relief and move on, to murmur a sotto voce “Never mind” in hopes of restoring the modicum of U.S.-ICC cooperation that existed before January 2017. That would be a mistake.
Essential to restoring the right balance is full-throated recognition that the regime put in place by the Executive Order assaulted justice, in at least three different ways.
First, the regime proclaimed that ICC actions, undertaken in full fidelity to the ICC treaty, “threaten the national security and foreign policy of the United States.” That is an outrageous thing to say about an international organization – a court, no less – to which two-thirds of the world’s countries, including nearly all the United States’ NATO partners and other key allies, belong. For it to be said by the United States, a country that for seventy-five years has laid claim to the legacy of justice at Nuremberg, is cause for shame.
Second, the regime wreaked fierce transnational sanctions on two international civil servants, officials who are supposed to enjoy judicial independence. Solely because they were doing their treaty-mandated jobs, their bank accounts were frozen and they could not engage in personal financial transactions such as using their credit cards. Others too were affected. From last June until today’s rescission, the threat of designation hung over every “foreign person,” everywhere, who advised or supported the Prosecutor. This included Americans like us four law-professor co-plaintiffs, as dual citizens of Ireland, Serbia, Canada, and Hungary in addition to the United States.
Executive Order 13928 requires a burial so deep, so final, that never again will the United States, nor any other country, deem it a permissible policy option.
Third, the regime cast an even wider dragnet, by which any individual, regardless of citizenship, could be sanctioned or criminally prosecuted for assistance or support. This enforcement aspect formed a key challenge in a second federal lawsuit, filed in January by one of my sister Special Advisers, Leila Sadat, along with human rights and academic colleagues Naomi Roht-Arriaza, K. Alexa Koenig, and Steven Watt. What’s more, while the two suits were pending, the risk of enforcement compelled the closure of innumerable human rights projects aimed at aiding the ICC’s work.
This is great, although the damage has been done – our Afghanistan program has been ‘successfully’ shut down. @HMarifat no longer working with us to represent Afghan victims groups & civil society, there seems to be no prospect of continuing the crucial work with @IntlCrimCourt https://t.co/0YAh3Y9Nwk
— Justice International (@Justice_Intl) January 5, 2021
With very few exceptions, media reports seldom took note of these latter menaces. Nor did they consider added dangers of allowing the regime to stand as unchallenged precedent. If an executive declaration of emergency could operate to stop lawyers from working on behalf of victims of global crimes, might then an executive declaration of emergency respecting, say, immigration operate to stop lawyers from working on behalf of asylum seekers?
It is for these reasons that, even as today’s recission allows resumed assistance to the ICC, the administration’s action also must spur an overt commitment that U.S.-ICC disputes will be resolved by constructive, respectful means. The very bad rubbish of Executive Order 13928 requires a burial so deep, so final, that never again will the United States, nor any other country, deem it a permissible policy option.
Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law and Visiting Professor of Law at Northwestern Pritzker School of Law, has served since 2012 as the Special Adviser to the International Criminal Court Prosecutor on Children in and affected by Armed Conflict. This essay is prepared solely in her personal capacity, and not on behalf of any other institution with which she may be affiliated.