ACLU Clients Challenge Trump’s Sanctions Order Against International Criminal Court

January 15, 2021 7:45 pm

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OAKLAND, Calif. — Three distinguished law faculty and an American Civil Liberties Union human rights attorney are challenging the Trump administration’s order authorizing sanctions against individuals who assist the International Criminal Court in investigating or prosecuting war crimes and other grave human rights violations. The lawsuit, filed today in federal court for the Northern District of California, argues that the Trump administration’s actions violate the First Amendment rights of those seeking to communicate with ICC personnel by providing human rights expertise and evidence of war crimes, and representing victims in the ICC’s justice proceedings.

“The International Criminal Court is where victims of grave human rights violations turn when national legal systems fail to provide justice,” said Scarlet Kim, staff attorney with the ACLU’s National Security Project. “President Trump’s abuse of emergency powers to punish the Court and those seeking accountability for war crimes and other atrocities is not just immoral, but unconstitutional.”

The lawsuit was filed by the ACLU and Covington & Burling LLP on behalf of Leila Sadat, ICC Special Adviser on Crimes Against Humanity and James Carr Professor of International Criminal Law at Washington University School of Law in St. Louis; Alexa Koenig, a Lecturer in Residence and the Executive Director of the Human Rights Center at the UCBerkeley School of Law; Naomi Roht-Arriaza, Distinguished Professor of Law at UC Hastings Law; and Steven Watt, a senior staff attorney with the ACLU’s Human Rights Program. All have previously provided substantial assistance to the ICC for investigations and prosecutions of war crimes and other serious human rights abuses.

“The executive order has had a profoundly chilling effect on the work I do directly for the Office of the Prosecutor, as well as my teaching and scholarship related to the ICC,” said Sadat. “I never imagined that working on cases to bring justice to the victims of unimaginable atrocities could subject me to civil and criminal penalties imposed by my own government.”

“Sanctions against officials at the ICC have had a disturbing chilling effect on my ability to support the Office of the Prosecutor through research and advising, as well as supervising students to use emerging technologies and new investigative methods to strengthen the pursuit of justice,” said Koenig. “Work conducted by law faculty, students, and clinics is essential to strengthening the rule of law. This case is critical for ensuring that legal faculty have the academic freedom to support victims and strengthen accountability for the world’s most horrific crimes.”

“I hope the new administration will revisit this misguided executive order, which has made me unable to continue my planned advocacy with the Office of the Prosecutor around international crimes and grand corruption in Venezuela and elsewhere,” said Roht-Arriaza.

“The ICC represents the last hope for justice for my clients, survivors and victims of war crimes committed by the CIA in Afghanistan,” said Watt. “The Trump administration’s unprecedented abuse of sanctions power tries to extinguish that hope. The executive order is disastrous for accountability and justice, and it violates the First Amendment.”

In June 2020, President Trump issued an executive order authorizing economic sanctions and civil and criminal penalties for those who support ICC investigations and prosecutions. In September 2020, Secretary of State Pompeo designated the Prosecutor of the ICC, Fatou Bensouda, and another senior ICC official under the order. As a result of the order and designations, the ACLU’s clients have been forced to stop their work supporting the ICC in seeking justice for war crimes.

The ACLU lawsuit filed today in the Northern District of California seeks to invalidate the executive order and block the Trump administration from implementing or enforcing it against any individual seeking to assist the ICC. In a separate lawsuit filed by the Open Society Justice Initiative, a federal judge in the Southern District of New York has temporarily blocked the Trump administration from enforcing the sanctions regime against five human rights lawyers.

The complaint is here:

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