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Law Professors and ACLU Ask Federal Judge to Stop ‘Unconstitutional’ Trump-Biden Effort to Wreck International Criminal Court


US President Joe Biden leaves the White House to spend the weekend in Camp David, on February 12, 2021 in Washington, D.C.

The American Civil Liberties Union (ACLU) hopes to undo a Trump and Biden administration effort to sanction and punish international lawyers who are investigating the United States for war crimes. On Friday, the group filed a motion for a preliminary injunction in an ongoing lawsuit challenging the government’s economic sanctions regime against the International Criminal Court (ICC).

“Injunctive relief is warranted because the Restrictions are unconstitutional content-based restrictions on [the attorneys’ and law professors’] speech and are ultra vires,” the filing alleges—using the Latin term for an invalid act beyond the powers of the law.

Recall: the late-stage Trump administration, by way of a widely-criticized executive order, took revenge against the international tribunal after the ICC’s top prosecutor authorized an investigation into U.S. war crimes committed by U.S. authorities during the co-called “Global War on Terrorism.” In response, 200 law professors, legal scholars and international lawyers demanded that the White house rescind those sanctions–which were implemented under via the International Emergency Economic Powers Act (IEEPA) and the Department of the Treasury’s Office of Foreign Assets Control (OFAC).

Collectively, the sanctions also purport to bar the efforts of U.S. citizens to help the ICC in way. On their own terms in the resulting regulations promulgated by former Secretary of State Mike Pompeo, “services of any nature whatsoever” are prohibited.

The sanctions directly target ICC Prosecutor Fatou Bensouda, and the Head of the Office of the Prosecutor’s (OTP) Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko and impose substantial civil and criminal penalties for any Americans who might render them aid as they perform their investigation.

Those restrictions are a violation of the First Amendment that aim to silence speech based on the content of said speech, according to four U.S. attorneys who have long worked with the ICC.

From the filing:

With respect to [law professors’ and attorneys’] First Amendment claim, because only speech that constitutes “services . . .to, or for the benefit of” one of the designated individuals is singled out for disfavored treatment and potential penalties, the Restrictions constitute a classic content-based restriction.

Professor Leila N. Sadat is the James Carr Professor of International Criminal Law at Washington University in St. Louis School of Law. Professor K. Alexa Koenig is the director of the Human Rights Center at the University of California, Berkeley School of Law. Professor Naomi Roht-Arriaza is the Distinguished Professor of Law at the University of California, Hastings College of the Law. Steven M. Watt is a human rights attorney who works for the ACLU.

“Each [law professor and attorney] reasonably fears that engaging in [their prior work for the ICC] would subject them to IEEPA’s substantial civil and criminal penalties and, were it not the Restrictions, they would resume their activities,” the motion filed in the U.S. District Court for the Northern District of California reads.

The lawsuit also notes that various federal laws bar using IEEPA sanctions to stop of “information or informational materials” but the sanctions regime doesn’t appear to make this distinction, resulting in what the plaintiffs say “violate the very statute from which [the sanctions] purport to draw their legal basis.”

“These are ongoing injuries, and the chill on Plaintiffs’ exercise of their First Amendment rights will continue to harm them, their students, support staff, and others working with them at their respective institutions in support of the ICC and the OTP absent a preliminary injunction against enforcement of the Restrictions.

A federal court in New York already entered an injunction against the sanctions regime earlier this year for another class of plaintiffs.

But, despite a pledge to review late-game Trump administration regulatory actions, the Biden administration has so far refused to lift the sanctions on the ICC—prompting increasing levels of concern and outrage from human rights advocates, international lawyers and law professors around the world. The State Department has, in recent weeks, declined to comment on the extant sanctions regime after early on promising only that “the sanctions will be thoroughly reviewed as we determine our next steps.”

Sadat called out President Joe Biden in a recent blog post:

I had hoped that the Biden administration would quickly rescind the executive order. After all, the administration has promised that “America is back” and ready to work closely with its allies to meet shared challenges. The ICC is a critical part of the international legal order — the 123 states parties to the court include many close allies of the United States. Unfortunately, although the Biden administration has rejoined the Paris Agreement, the World Health Organization, and the U.N. Human Rights Council, it has not yet rescinded Trump’s order and my co-plaintiffs and I continue to experience harm.

“President Trump’s unprecedented executive order harms international and U.S. efforts to provide accountability for gross human rights violations,” the law professor continued. “It is actively preventing us from providing our knowledge and expertise to our students, colleagues, and the American public more broadly. The Biden administration should rescind the executive order immediately and demonstrate to the world that America really is back and ready to stand up for the rule of law and human rights. Our work — and the work of so many others who are supporting the pursuit of justice for human rights atrocities — depends on it.”

Law&Crime reached out to the White House for comment but no response was forthcoming at the time of publication.

Notably, Biden administration policy has so far appeared hostile to the ICC in general. State Department spokesperson Ned Price, recently refused to answer questions from an Associated Press reporter regarding the ICC’s recent decision to investigate Israel for war crimes against the Palestinians. The Biden administration is firmly opposed to that investigation.

“U.S. government sanctions against ICC officials are yet another terrible legacy of the Trump administration, which made clear its disregard for human rights and the rule of law,” Scarlet Kim, staff attorney with the ACLU’s National Security Project said in a statement provided to Law&Crime. “President Biden has yet to rescind these unprecedented and harmful sanctions. Our clients are asking the court to act so they can return to their critical work supporting the ICC’s mandate to pursue justice for human rights atrocities.”

“Because the Biden administration has not rescinded the Trump Executive Order authorizing the sanctions regime, or the specific designations of the ICC Prosecutor and another high-level ICC official under the regime, the regime and the designations remain in place,” Kim explained in an email to Law&Crime. “It also means that the regime’s civil and criminal penalties for supporting the work of the ICC Prosecutor continue to loom over anyone who engages in this work. Our clients, who are human rights scholars and attorneys, therefore remain unable to provide legal advice, conduct trainings, or represent victims before the ICC. An injunction is therefore necessary to allow them to do their work.”

[image via ERIC BARADAT/AFP via Getty Images]

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