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New Executive Order Authorizing Sanctions against International Criminal Court (“ICC”) Officials

By Ali Burney, Peter Jeydel, Nicholas Turner, Ed Krauland, Brian Egan, Wendy Wysong & Hena Schommer on June 14, 2020
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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.”

Photo of Peter Jeydel Peter Jeydel

Peter Jeydel‘s practice focuses on US export controls and economic sanctions, including the Commerce Department’s Export Administration Regulations (EAR), the State Department’s International Traffic in Arms Regulations (ITAR), and sanctions regulations administered by the Treasury Department’s Office of Foreign Assets Control (OFAC)…

Peter Jeydel‘s practice focuses on US export controls and economic sanctions, including the Commerce Department’s Export Administration Regulations (EAR), the State Department’s International Traffic in Arms Regulations (ITAR), and sanctions regulations administered by the Treasury Department’s Office of Foreign Assets Control (OFAC) and the State Department. His practice spans all aspects of these regimes, including counseling, compliance, transactional advice, licensing and opinions, disclosures, and enforcement actions. He has also represented companies and individuals seeking de-listing from OFAC’s sanctions list. In addition, Pete has assisted clients in anti-corruption matters, including under the US Foreign Corrupt Practices Act (FCPA), and has experience handling reviews and investigations by the Committee on Foreign Investment in the United States (CFIUS).

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Photo of Ed Krauland Ed Krauland

Edward J. Krauland focuses on export controls/economic sanctions. Ed’s extensive experience includes representing clients on matters involving US and multilateral economic sanctions, defense and nuclear export controls, dual-use export controls under the EAR, anti-boycott compliance, internal investigations and enforcement work, and review of…

Edward J. Krauland focuses on export controls/economic sanctions. Ed’s extensive experience includes representing clients on matters involving US and multilateral economic sanctions, defense and nuclear export controls, dual-use export controls under the EAR, anti-boycott compliance, internal investigations and enforcement work, and review of government procurement regulations in the cross-border context. His practice spans all aspects of these laws, including counseling, compliance work, transactional advice, licensing and opinion work, internal reviews, disclosures, and enforcement actions. He has served as co-chair of the International Trade Committee of the ABA Section of International Law and Practice. He is former Chairman of an ABA-wide Task Force on Gatekeeper Regulation (anti-money laundering compliance), and senior adviser to the ABA Section of International Law and Practice’s anti-money laundering committee.

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Photo of Brian Egan Brian Egan

Brian Egan advises on a number of international legal issues that affect US and foreign clients, including economic sanctions, export controls, and anti-money laundering programs; national security trade and investment reviews; international arbitration and other cross-border disputes; international cybersecurity and data privacy; and…

Brian Egan advises on a number of international legal issues that affect US and foreign clients, including economic sanctions, export controls, and anti-money laundering programs; national security trade and investment reviews; international arbitration and other cross-border disputes; international cybersecurity and data privacy; and issues of public international law. He has worked in various senior legal positions for the US government, giving him keen insight into domestic and international legal matters that influence US government national security and foreign relations policies and programs. Before joining Steptoe, Brian served as the Legal Adviser to the US Department of State, the Legal Adviser to the National Security Council, Deputy White House Counsel, and Assistant General Counsel for Enforcement and Intelligence with the US Department of the Treasury. Brian has regularly appeared in public fora to speak on international legal issues, including testifying before Congress, public speaking engagements, and panel presentations.

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  • Posted in:
    Government and Public Policy
  • Blog:
    International Compliance Blog
  • Organization:
    Steptoe LLP

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