Challenging Censorship: Open Society Justice Initiative Opposes ICC Executive Order

BCL/JD student Kimia Towfigh examines a recent executive order that sanctions supporters of the International Criminal Court who provide evidence of alleged war crimes committed by US troops in Afghanistan. Drawing on a current lawsuit instituted by the Open Justice Society Initiative, the author shows that the executive order ultimately curtails free speech and impedes meaningful civic participation on issues of international law and justice.

On June 11, 2020, the Trump administration issued Executive Order 13928, which imposes economic sanctions, travel restrictions and “significant consequences” on anyone assisting the International Criminal Court (ICC) by providing evidence of war crimes committed by U.S. troops and citizens. This restrictive national emergency order was issued in response to the ICC’s unanimous approval to investigate the commission of alleged war crimes in Afghanistan by Taliban, Afghan and U.S. troops since the armed conflict began in May 2003.

Further retaliatory measures were imposed on September 2, 2020, when the administration sanctioned top ICC officials, including Chief Prosecutor, Fatou Bensouda and Head of the Jurisdiction Complementarity and Cooperation Division, Phakiso Mochochoko. Ultimately, the “unusual and extraordinary threats” of the ICC’s investigation were deemed to harm the national security and foreign policy of the United States. Secretary Mike Pompeo further stated that “individuals and entities that continue to materially support those [designated] risk exposure to sanctions.”

The Trump administration unequivocally denounced the authority, legitimacy and jurisdiction of the ICC over U.S. personnel by asserting its non-ratification of the Rome Statute, which created the International Criminal Court in 1998. With 123 state signatories, the treaty empowers the ICC in The Hague to exercise its jurisdiction over individuals for “serious crimes of concern” that impact the international community, including genocide, crimes against humanity, war crimes and/or crimes of aggression.

While previous administrations have supported the functions of the ICC and cooperated with its prior investigations, the current administration critiques the cosmopolitan nature and global reach of the ICC, which is perceived as a threat to U.S. sovereignty and independence. This open hostility ultimately impedes the Court’s operations and impairs its ability to realize its global mission of investigating international crimes of concern, fostering a culture of accountability for atrocity crimes, and contributing to long-term peace, stability and development in post-conflict societies.

Curtailing speech and civic participation: a chilling effect

The Trump administration’s draconian measures were subsequently criticized by the international community, particularly among many human rights activists and international legal scholars, who condemned the order as a blatant violation of free speech, due process and constitutional rights.

The American Bar Association (ABA), proclaimed as the “national voice of the profession,” issued a response stating that its members were “deeply disturbed” by the Trump administration’s escalating attacks on the ICC. A policy report was later adopted by the ABA House of Delegates, condemning further sanctions against legal professionals working at the ICC and urging all national governments to respect and protect the independence of the ICC.

Richard Dicker, international justice director at Human Rights Watch asserts that the Trump administration’s sanctions are “an egregious affront to victims of the world’s worst crimes.” Moreover, the civil and criminal penalties associated with the administration’s retaliatory measures have already created a chilling effect among legal scholars and advocates who work in international law and justice.

Professor Diane Marie Amann of the University of Georgia School of Law, who serves as a Special Adviser to the ICC and works on behalf of children impacted by armed conflict, affirms that the executive order effectively silenced the activities that have been her life’s work. As a result, she has cautiously withdrawn from public presentations and halted the work of her student research assistants out of fear that her involvement may be constrained in violation of the provisional measures.

Plaintiffs institute legal proceedings against executive order

In response to the executive order, four law professors (including Professor Amann) in collaboration with the Open Society Justice Initiative, a public interest law centre, instituted a complaint against members of the Trump administration, challenging the restrictive penalties imposed on those who support the efforts of the International Criminal Court.

The plaintiffs, who all teach and advocate on international justice issues, contend that the executive order unduly restricts their First Amendment rights to free speech, lacks clarity of prohibited acts as required by the Fifth Amendment, and is ultra vires under the International Emergency Economic Powers Act. The plaintiffs further allege that the threats implicated from the executive order have caused them to “discontinue, abandon or reconsider” a wide range of their professional activities in support of international justice, such as preparing briefs for the ICC, presenting at panels, attending conferences or hiring student research assistants.

Among many other concerns, the executive order has been widely criticized for its arbitrary nature that threatens a broad range of cooperative activities among lawyers, activists and scholars. Indeed, the administration leaves ambiguous the term “materially assisted” as articulated in the executive order. As such, the nature of activities that are subject to punishment remain unclear.

Safeguarding due process and clarity of law

As affirmed by U.S. legal jurisprudence and case law, provisions must be sufficiently explicit to inform those subject to it whether their conduct is punishable. Otherwise, such laws violate the essential nature of due process law. In The Morality of Law, Fuller affirms that among other conditions, all purported legal rules must be “at least minimally clear and intelligible” to embody standards of fairness and predictability that ground the rule of law. Conversely, the arbitrary nature of the executive order blatantly violates these principles.

Above all, arbitrary threats of punishment not only silence dissenting opinions and curtail inclusive participation in civil society, but also threaten democracy as a whole. As Emerson explains, the principle of open discussion is “a method of achieving a more adaptable and […] more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus.” Free speech is premised on the search for truth, participation in political decision-making and individual self-fulfillment through expression. When curtailed, democratic institutions and governance are jeopardized.

By issuing a restrictive executive order that is both unduly harsh and alarmingly arbitrary, the Trump administration has ultimately curtailed free speech and civic participation, while also frustrating the legitimate efforts of the ICC to secure international justice for victims of crimes against humanity.

The lawsuit instituted by the Open Justice Initiative is a significant proceeding that is bound to shed light on the legality of the executive order and support access to justice on a global scale. State participation with the ICC’s operations is a means to hold individuals accountable—regardless of their citizenship or nationality—for the worst crimes known to humankind.

To pursue an unfettered unilateral foreign policy strategy instead, and to deliberately censor human rights advocates in the process is an affront to international norms and the rule of law.

About the author

Kimia Towfigh. Photo supplied by author.Kimia Towfigh (kimia.towfigh [at] (email)) is a BCL/JD candidate and research assistant at McGill University’s Faculty of Law.

Her interests are sustainable development, taxation and immigration matters.

She currently serves as the undergraduate student representative of the Centre for Human Rights and Legal Pluralism's Management Board


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