On Sept. 2, the Trump administration sanctioned two officials of the International Criminal Court (ICC), a tribunal dedicated to seeking justice for victims of heinous crimes, simply for doing their jobs.
Since it was established in 2002, the court has investigated and prosecuted cases of child soldiers in Uganda and the Democratic Republic of the Congo, the destruction of cultural property, sexual abuse, and gender violence.
The Open Society Justice Initiative is fighting back, filing a lawsuit in the Southern District of New York. The suit challenges a June executive order sanctioning senior ICC officials, including Fatou Bensouda, the court’s chief prosecutor. The executive order appears to be retaliation for the ICC’s investigation of alleged wrongdoing by U.S. personnel in Afghanistan.
Constitution, Due Process Challenges
The lawsuit, filed with four law professors, argues that by penalizing and possibly criminalizing our work in support of international justice, the Trump administration has violated the U.S. Constitution’s First Amendment as well as due process rights. The lawsuit also seeks to stop the U.S. government from enforcing the executive order.
The executive order is not only unconstitutional; it’s a perverse betrayal of U.S. values. In America, we have long pursued liberty and justice at home and abroad. The U.S. helped build the ICC, a vital part of the international rules-based order, a multilateral institution established to investigate and prosecute perpetrators of horrific acts including genocide, war crimes, and crimes against humanity.
Like other global organizations Trump has disparaged and defunded, the ICC relies on diplomacy and cooperation to carry out its investigations, efforts the U.S. and its allies have championed since Nuremberg.
U.S. Has Supported ICC
While not a member of the ICC, the U.S. has supported the court’s efforts toward accountability for atrocities in some of the very places Trump has most disparaged, including Sudan, Libya, and Uganda. Furthermore, the ICC is a court of last resort, which means that it generally steps in only when a country doesn’t deploy its domestic justice system to investigate and prosecute serious crimes.
After more than 10 years of examination, the ICC’s Appeals Chamber authorized Bensouda to open an investigation into crimes allegedly committed in Afghanistan since 2003, including crimes allegedly committed by the Taliban, Afghan security forces, and, possibly, U.S. personnel. But the threat the Trump administration perceives the ICC to present to the U.S. is a straw man, a pretext for the self-absorbed isolationism in which this administration traffics.
Sanctions at their best are a tool for accountability. The U.S. has long used economic sanctions to combat genuine threats—terrorists, rogue regimes, and drug cartels—not renowned prosecutors. By misusing these powerful tools for purposes for which they were never intended, Trump’s executive order undermines the value of sanctions when they are next needed, and diminishes Washington’s status as a global leader.
The global response to the sanctions was swift and strong, a chorus of condemnation from United Nations officials, the European Union, and staunch U.S. allies like Canada and Ireland. German Foreign Minister Heiko Maas said the executive order was a “serious mistake.” French Foreign Minister Jean-Yves Le Drian called the sanctions “a grave attack against the court and beyond that a questioning of multilateralism and the independence of the judiciary,” and appealed for the U.S. to withdraw the measures.
No wonder America’s image in the world has plunged through the floorboards since Trump took office, dropping, according to the Pew Research Center, to the lowest level recorded since the organization began polling on the matter nearly 20 years ago.
The Open Society Foundations shares the deep concern of the international community, and is confronting this with the tools still at our disposal: the rule of law, the U.S. Constitution, and the project of international justice, to which the individuals sanctioned under this order have dedicated their careers.
While legal victory is not certain—courts traditionally grant broad discretion to the president to issue executive orders—such orders have to respect the Constitution. And this particular order stomps on constitutionally protected speech. Challenging this order is a job for the courts, and we are optimistic that a court will rein in this administration.
We will keep going to the courts to insist on protection of the values that truly make America great. Defending the constitutional right to speak out in support of a just world, where seeking accountability for atrocities is rewarded, not punished, is a protection not only for our own democracy, but for those beyond our borders who seek the same.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Patrick Gaspard is president of the Open Society Foundations, the world’s largest private funder of independent groups working for justice, democratic governance, and human rights. Gaspard served as the U.S. ambassador to South Africa from 2013 to 2016.