On June 11, 2020, the President issued a new Executive Order, “Blocking Property of Certain Persons Associated with the International Criminal Court” (the “ICC EO”).  The ICC EO authorizes economic sanctions and travel restrictions on persons who are engaged in efforts by the ICC to investigate and prosecute U.S. and allied personnel for alleged war crimes.

The President issued the ICC EO pursuant to the International Emergency Economic Powers Act (IEEPA) in response to the ICC’s “assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan.” In invoking IEEPA, the President declared that “any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States.”

Although the ICC EO does not immediately impose restrictions on any ICC personnel or supporter, the ICC EO authorizes the imposition of sanctions and travel prohibitions in several circumstances.

First, the ICC EO authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to impose blocking sanctions against any “foreign person” determined to have “directly engaged in an effort by the ICC to investigate, arrest, detain, or prosecute” any US personnel or any personnel from a US-allied country without the consent of the US government or the US allied country’s government.

Second, the ICC EO authorizes the imposition of blocking sanctions against any foreign persons determined: (i) to have provided material assistance (including financial support) to any persons whose property or property interests are blocked pursuant to the ICC EO (“Blocked Persons”) or for any of the sanctionable activities targeted by this EO, or (ii) to be owned or controlled by, or to have acted for or on behalf of any Blocked Persons.

Third, the ICC EO imposes restrictions on entry into the United States by Blocked Persons and their “immediate family members,” i.e., spouses and children.

The United States is one of the few countries in the world that is not a state party to the Rome Statute (which created the ICC).   US government officials from both political parties have long criticized the ICC’s investigation of US personnel for alleged war crimes in Afghanistan as politically motivated and inappropriate.  Former National Security Advisor John Bolton, a sharp critic of the ICC, first threatened sanctions against the ICC in 2018.  Nonetheless, the use of the sanctions tool against the ICC is novel and will be controversial.   The United States traditionally has deployed sanctions against foreign adversaries of the United States, non-state actors such as terrorists, weapons proliferators, and human rights abusers, and their supporters.  This EO authorizes sanctions targeting an international institution that was established to prosecute persons who commit genocide and other serious international crimes.  The choice of economic sanctions as a tool to register opposition to the ICC’s work in Afghanistan is noteworthy.

The ICC EO does not immediately impose sanctions on anyone.  At this stage it is unclear if the US government actually intends to target ICC officials and their immediate family members or if this EO will be more symbolic and serve as a threat against any potential ICC action in the future. The Secretary of State, in published remarks, has stated that the “designations will be made on a case-by-case basis against specific individuals or entities.”

In addition to the ICC EO, Attorney General Barr, in published remarks, stated on June 11 that the Department of Justice is investigating the ICC Prosecutor’s Office, because of “substantial, credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”