(CN) — The Trump administration’s civil and criminal sanctions against anyone helping the International Criminal Court probe possible U.S. war crimes in Afghanistan are illegal and unconstitutional, a human rights group and law professors claim in a federal lawsuit Thursday.
President Donald Trump levied harsh penalties and travel restrictions against ICC workers in an executive order in June, escalating his feud with The Hague-based world court’s prosecutor Fatou Bensouda’s probe into torture by the U.S. military and CIA in the early years of the war on terror.
Just over a week after the court authorized the investigation in March, U.S. Secretary of State Mike Pompeo said anyone involved in the probe would have their U.S. visas revoked or denied. Economic sanctions soon followed under the International Emergency Economic Powers Act, or IEEPA.
The Open Society Justice Institute, a New York-based human rights group, and four law professors describe those measures as illegal in their lawsuit filed in the Southern District of New York against Trump, Pompeo, Treasury Secretary Steven Mnuchin, Attorney General William Barr and the agencies those cabinet members lead.
“Engaging in prohibited interactions with a designated person is unlawful and subjects those who do so to civil and criminal fines, and, if a natural person, 20 years’ incarceration, under the International Emergency Economic Powers Act,” the lawsuit notes. “Such interactions also subject persons to being themselves designated under the executive order.”
The Justice Department did not immediately respond to a request for comment.
James Goldston, the executive director of the Open Society Justice Initiative, called Trump’s executive order “outrageous.”
“By issuing this outrageous order, the Trump administration has betrayed Washington’s long-standing support for international justice, snubbed its allies, and violated the U.S. constitution,” Goldston said in a statement. “We are going to court to end this reckless assault on a judicial institution and the victims it serves.”
Law professors Diane Marie Amann, Milena Sterio, Margaret deGuzman and Gabor Rona allege that such draconian penalties chill their First Amendment rights to freedom of speech and advocacy and Fifth Amendment right to due process.
“The executive order and the regulations impermissibly restrict plaintiffs’ First Amendment rights to freedom of speech by prohibiting them from providing the speech-based services and assistance described above, including with respect to ICC investigations and prosecutions that the United States supports,” the complaint states. “The executive order and the regulations also lack the clarity required by the Fifth Amendment as to which acts subject a person to enforcement or designation, or which persons they cover.”
Before the sanctions were issued, Amann — a University of Georgia scholar — said she assisted ICC prosecutor Bensouda with training, crafting policies and proceedings, and drafting legal submissions to help children affected by armed conflict.
Sterio, a professor for the Cleveland-Marshall College of Law, says she attended the ICC Scholars Forum in The Hague in 2018 and 2019, and she has attended the annual International Humanitarian Law Dialogues in Chautauqua, New York, for the past seven years. She has argued that the Afghanistan investigation falls within the ICC’s jurisdictional mandate.
Beasley School of Law’s scholar deGuzman says she has regularly given presentations about the ICC in front of Bensouda and others in her office. The topics have included Cote D’Ivoire and the definition of crimes against humanity as well as the situation in Darfur and the immunity of former Sudan President Omar al-Bashir.
Rona, from the Cardozo School of Law, has lectured on the ICC at academic conferences and military trainings held worldwide, including in the United States.
All four professors and the rights group want a federal judge to block Trump’s executive order as illegal under the Administrative Procedure Act and IEEPA and unconstitutional under the First and Fifth Amendments.
They are represented by Nicholas Renzler and Brittan Heller, from the Washington-based firm Foley Hoag.
The United States has never signed on to the Rome Statute, a 1998 treaty that four years later was used to establish the ICC to investigate alleged war crimes. The fact has led the Trump White House to declare: “The International Criminal Court’s actions are an attack on the rights of the American people and threaten to infringe upon our national sovereignty.”
But the ICC, and the scholars supporting it, note that Afghanistan and Eastern European countries where the U.S. military and CIA personnel operate are signatories.
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