Unless Biden Acts, Trump's Assault on Human Rights Will Continue

Last year, then-President Trump imposed unprecedented sanctions against the world’s only permanent international criminal court and my work to support justice for the victims and survivors of human rights atrocities ground to a halt. Since 2012, I have served as the special adviser on crimes against humanity to the prosecutor of the International Criminal Court (ICC), Fatou Bensouda. In this role, I provide Bensouda and her staff with legal advice and assistance in their investigation and prosecution of crimes against humanity around the world.

In June 2020, Trump issued an executive order authorizing the imposition of sanctions against ICC officials involved in investigations and prosecutions of U.S. personnel (and those of certain allies) for genocide, war crimes, and crimes against humanity. It also punishes anyone, including experts like me, who supports these ICC officials, regardless of whether that support is related to investigations and prosecutions of U.S. and allied personnel. Last September, then-Secretary of State Pompeo designated Bensouda and another senior court official under the order, and the U.S. government implemented sanctions against them. As a professor of international criminal law and special adviser to Bensouda, I can no longer continue my work without risking prosecution and punishment by my own government. 

“The sanctions regime has not only chilled our constitutionally protected speech, but also that of many other human rights advocates, lawyers, and others whose work supports the ICC’s pursuit of justice.”

That’s why, with two other law faculty and an ACLU human rights attorney, I challenged the Trump administration’s order in a lawsuit filed January 15. The order violates our First Amendment rights and those of other academics, lawyers, and human rights advocates by punishing our provision of legal and technical advice to the court. We can no longer share our human rights expertise, provide evidence of human rights atrocities to the court, or represent victims in proceedings before the court

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. Last night, we asked the court in our case to issue a preliminary injunction against the effects of the sanctions regime so our constitutional rights are protected while our lawsuit is pending. We must be allowed to continue our work to support justice for victims of atrocity crimes.

The ICC was created in 1998 to investigate and prosecute genocide, war crimes, and crimes against humanity when national systems fail to, or are incapable of doing so. The court began operating in 2002, filling a critical void in enforcement of international human rights and establishing a path to justice for victims of grave human rights violations when national legal systems have failed them. It is the direct successor of the Nuremberg Tribunal, which the U.S. and its allies established after World War II to try members of the Nazi regime for the atrocities of that war, including the Holocaust. Its establishment is a tribute to American ideals and commitments to justice and the rule of law.

Before the Trump administration’s order, I worked closely with Bensouda and her staff by providing pro bono legal advice and conducting trainings for the Office of the Prosecutor (OTP). Because of the order, I am no longer free to do this work. I have also been unable to contribute to important conversations about the ICC, including on recent judgments for fear of punishment. My students have paid the price as well; I had to cancel one of my annual research seminars in which students would have conducted ICC-related legal research in support of my work for the OTP.

The work of my co-plaintiff K. Alexa Koenig was also abruptly stopped by the executive order. Koenig specializes in the use of emerging technologies to help map and document human rights abuses and mass atrocities in conflict zones. With her law students, she regularly worked with OTP staff, consulting on how scientific and technological evidence and tools might be employed to aid the office’s work. Koenig’s work resulted in the creation of a Technology Advisory Board at the OTP. All of this work — including that of students and other human rights lawyers who collaborated with her — is now on hold.

“President Trump’s unprecedented executive order harms international and U.S. efforts to provide accountability for gross human rights violations.”

My co-plaintiff Naomi Roht-Arriaza, who is also a law professor in our suit, was also forced to abandon her critical research and advocacy. Professor Roht-Arriaza has worked alongside Latin American civil society groups investigating the role of “grand corruption” — corruption occurring at the highest levels of government — in human rights atrocities. Her pioneering work on grand corruption shows, for example, patterns of murders tied to illicit mining and natural resource extraction operations in Venezuela. Prior to Trump’s executive order, she was meeting with OTP officials and urging them to expand the scope of their investigation into Venezuela to incorporate the issue of grand corruption. In the face of civil and criminal penalties under the U.S. sanctions order, Professor Roht-Arriaza had to cease all communication and engagement with the ICC.

The executive order has also interrupted crucial efforts to bring relief to survivors and victims of U.S. human rights violations. Steven Watt, a senior staff attorney with the ACLU’s Human Rights Program and the final named plaintiff, represents six survivors and victims of forced disappearance, torture, and other war crimes and crimes against humanity committed by U.S. military and CIA personnel in Afghanistan. The ACLU sought justice on behalf of these clients in U.S. courts, but the U.S. government intervened to have all but one of the cases dismissed. Until the sanctions regime stopped him, Watt was providing documented evidence of torture to Bensouda’s office to support its investigation in Afghanistan. He had also applied to represent his clients as official victims in the ICC proceedings, but can no longer proceed. For these six men and hundreds more survivors and victims of U.S. war crimes and crimes against humanity in Afghanistan, the ICC is their last hope for accountability. The sanctions regime extinguishes that hope.

As it stands, the regime bars me and my co-plaintiffs, under threat of severe civil and criminal penalties, from engaging in activity clearly protected by the First Amendment. The sanctions regime has not only chilled our constitutionally protected speech, but also that of many other human rights advocates, lawyers, and others whose work supports the ICC’s pursuit of justice.

One federal court has already ruled, in a separate lawsuit filed by the Open Society Justice Initiative (OSJI), that the Trump sanctions regime punishes those who speak directly in support of the OTP and its work. That ruling temporarily blocked the U.S government from enforcing its ICC sanctions regime against OSJI and four academics and human rights lawyers. Our lawsuit seeks to invalidate the executive order and block its enforcement against any individual seeking to assist the ICC.

President Trump’s unprecedented executive order harms international and U.S. efforts to provide accountability for gross human rights violations. 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.

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