Open Society Justice Initiative et al. v. Donald J. Trump et al.
On June 11, 2020, President Donald J. Trump issued Executive Order 13,928, Blocking Property of Certain Persons Associated With the International Criminal Court, threatening severe sanctions, monetary penalties, and imprisonment on persons who assist the International Criminal Court (ICC). The Executive Order exceeds its legal authority, impermissibly prohibits speech, and fails to provide notice as to who it covers and what for what activities.
Those impacted by the Executive Order include U.S. persons, including U.S. entities, as well as foreign persons and foreign entities. The Open Society Justice Initiative and four law professors, all of whom have engaged extensively with the ICC, brought this case seeking a declaration from the U.S. federal court that the Executive Order and its implementing Regulations violate the U.S. Constitution and statutory law. The lawsuit also seek an order enjoining the Trump Administration from enforcing the Order.
International Criminal Court and the United States
The ICC is an international court, based in The Hague, the Netherlands, created by the Rome Statute of the ICC. The ICC may exercise jurisdiction over the investigation and prosecution of individuals accused of war crimes, crimes against humanity, and genocide. States that ratify or accede to the Rome Statute—currently 123 States from every region of the world—consent to the ICC’s investigation and prosecution of crimes that have occurred on their territory or by their nationals. The ICC may also exercise jurisdiction where the United Nations Security Council, to which the U.S. is one of five permanent members, refers a situation to the Court.
The ICC has no independent enforcement power and relies on States to arrest individuals who are subject to its arrest warrants. The U.S. is not a party to the Rome Statute, however it has supported numerous investigations and prosecutions by the ICC, including in the Democratic Republic of the Congo, the Central African Republic, Libya, Mali and Darfur. The ICC is also investigating crimes committed in Palestine and Afghanistan, which may implicate U.S. personnel and personnel of U.S. allies.
When issued, the Executive Order outlined a prospective framework to impose sanctions on persons supporting the ICC. Under the Order, President Trump invoked the National Emergencies Act, declaring a state of emergency with respect to any attempt by the ICC to investigate or prosecute U.S. personnel of personnel of ally countries that have not consented to ICC jurisdiction. To enforce the Order, the President also invoked the International Economic Emergency Powers Act (IEEPA), which grants the President powers to authorizes sanctions on persons who violate the Executive Order. Historically, the use of IEEPA is reserved for accused terrorists, weapons proliferators or human rights violators.
This Order authorized U.S. Secretary of State Michael Pompeo, in consultation with Secretary of Treasury Stephen Mnuchin and Attorney General William Barr, to designate any foreign person who has directly or indirectly engaged in any effort by the ICC to investigate or prosecute U.S. personnel or personnel of a U.S. ally without that government’s consent. It also permits the designation of any foreign person that engages with a designated person. Virtually any interaction with a designated person can result in the full enforcement of IEEPA’s penalties, including steep financial penalties and imprisonment.
Under the Order, only a “foreign person” may be designated for directly or indirectly supporting the ICC’s work as laid out in the Order. This include indirect engagement such as providing “material assistance,” “material support,” or “services to or in support of” those efforts. However, these key terms are undefined in the Order and its implementing Regulations.
In July and August, the Justice Initiative submitted FOIA and Interpretative Ruling requests to the Justice, State and Treasury departments, seeking clarity on the scope of these terms and the Executive Order. At the time of filing the lawsuit, none of the departments had provided any guidance or clarity.
On September 2, 2020, the Trump administration designated the ICC’s chief prosecutor, Fatou Bensouda and a top ICC official, Phakiso Mochochoko. Prior to the promulgation of the Executive Order, Plaintiffs provided education, training, advice, and other forms of assistance to the ICC, as well as to Prosecutor Fatou Bensounda and Mr. Mochochoko. However, the threat of designation under the Executive Order and enforcement of IEEPA’s civil and criminal penalties has caused Plaintiffs to discontinue or refrain from continuing to undertake these activities.
The Executive Order’s Restrictions on Speech Violate the First Amendment to the U.S. Constitution
The Executive Order and its implementing Regulations impermissibly restrict First Amendment rights to freedom of speech by prohibiting speech-based services and assistance to the ICC. Under the First Amendment, the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” However, the Order restricts expression that is based on both content and viewpoint as persons are prohibited from saying things to Prosecutor Bensouda or Mr. Mochochoko that materially assist, materially support, or serve them, but not speech that takes a contrary viewpoint. It also sweeps far wider, encompassing any effort to provide assistance to the ICC’s investigation and prosecution of all crimes, including in situations the United States has endorsed.
The Executive Order is Unconstitutionally Vague Violating the Due Process Clause of the Fifth Amendment
Under the Fifth Amendment, clarity in the law “is essential to the protections provided by the Due Process Clause” and thus laws which regulate conduct must give fair notice to persons so they know it is prohibited. The Executive Order violates due process protections because it includes terms—“foreign persons,” “services to or in support of,” “material assistance,” and “material support”—that fail to provide the required notice as to who is covered by the Order and what activities are proscribed. As where a law reaches speech, clarity is demanded at an even higher degree.
The Executive Order is Ultra Vires under IEEPA
IEEPA contains two relevant exceptions to the President’s authority pursuant to a declaration of emergency. The President may not prohibit “personal communication, which does not involve a transfer of anything of value,” nor the import or export of “any information or informational materials.” However, the speech the Executive Order prohibits does not involve the transfer of anything of value, and the speech prohibited is informational and exported to the Netherlands, the ICC’s location. As such, the Executive Order’s restrictions on this speech is beyond the President’s authority under IEEPA.
The Implementation of the Executive Order is a Violation of the Administrative Procedure Act
The Administrative Procedure Act requires courts to hold unlawful and set aside agency actions that are “arbitrary [and] an abuse of discretion,” “contrary to constitutional right[s],” or “in excess of statutory…authority.” In enacting and implementing the Executive Order, the U.S. Departments and officials violated Plaintiffs’ constitutional rights under the First and Fifth Amendments, and exceeded their statutory authority under IEEPA.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative is the plaintiff in the case. It is represented by the law firm Foley Hoag, LLP, led by Andrew Loewenstein.
Plaintiffs file a preliminary injunction asking the Court to enjoin Defendants from enforcing IEEPA’s civil and criminal penalties against Plaintiffs and from designating them under the Executive Order.
The Justice Initiative and four individual plaintiffs files suit against Donald J. Trump, U.S. President; the U.S. Department of State and Secretary Michael R. Pompeo; U.S. Department of Treasury and Secretary Steven T. Mnuchin, along with its Office of Financial Assets Control and its Director Andrea Gacki; U.S. Department of Justice and Attorney General William P. Barr, in the Southern District of New York.
The U.S. government designates ICC Prosecutor, Ms. Fatou Bensouda and the Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC Office of the Prosecutor, Mr. Phakiso Mochochoko.
The Justice Initiative request an Interpretive Ruling Request from the Department of Treasury’s Office of Foreign Assets Control (OFAC) regarding what it means to “materially assist” or provide “services” in support of the activities identified in Executive Order 13928.
The Justice Initiative files appeals with the U.S. Departments of Justice, State and Treasury regarding the respective agencies denial of requests for expedited processing and a fee waiver.
The Justice Initiative files a Freedom of Information Act (FOIA) request with the U.S. Departments of Justice, State and Treasury requesting records concerning Executive Order 13928 and the activities that lead to its promulgation.
President Donald Trump issues Executive Order 13928, Blocking Property of Certain Persons Associated With the International Criminal Court.
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