Donald Trump’s executive decree imposing sanctions on the International Criminal Court (ICC) faces a legal challenge by two American human rights defenders who argue that it is “unconstitutional and illegal”.
On Friday, in a trial brought by the Federal Court, the defenders said that the order had forced them to stop helping and engaging with the ICC to fear the American government would punish them with criminal prosecution and civil fines.
The lawyers of the American Civil Liberties Union (ACLU), who filed the case on behalf of the defenders, argued that Trump’s order had violated the first amendment by prohibiting their rights protected by the Constitution to share information with the chief prosecutor of the ICC and its staff.
They said that the complainants “wanted to continue communicating with the (prosecutor’s office), but that it is refrigerated because of the substantial risk that they are penalized”.
Under the order signed by Trump in February, the United States has imposed economic and travel sanctions against the prosecutor, Karim Khan, prohibiting American citizens, permanent residents and companies from providing him with services and material support.
Khan, a British lawyer, heads a CPI division, a permanent tribunal of The Hague, which investigates and continued the accused of having committed atrocities.
Trump made the ordinance in response to the court’s decision last year to approve requests for a Khan’s arrest warrant against Benjamin Netanyahu and his former Minister of Defense Yoav Gallant for alleged war crimes and crimes against humanity in Gaza.
The aggressive order has established a framework to impose additional sanctions on the CPI officials and ordered the US Treasury Department to submit the names of other people to target, raising the prospect of a larger campaign against the court.
The judicial challenge against Trump’s order, filed before the Maine’s American district court, was brought by Matthew Smith, co-founder of Fortify Rights, a human rights organization focused on Southeast Asia, and Akila Radhakrishnan, international lawyer.
According to the trial, Smith provided to the CPI prosecutor’s office with “evidence of the genocide and forced the deportation of the Rohingya people of Myanmar” and helped court investigators to analyze and develop sources of evidence relating to atrocity crimes.
In a press release published by ACLU, Smith said that the order meant that it had been “forced to stop helping the CPI to investigate horrible crimes committed against the inhabitants of Myanmar, including mass murder, torture and trafficking in human beings”.
“This decree does not only disturb our work-it actively undermines international justice efforts and obstructing the way to the responsibility of communities faced with unthinkable horrors,” he added.
Radhakrishnan, the second applicant, worked with the ICC as a defender and external advisor, largely engaging the prosecutor’s office on sexual and sexist crimes in countries like Afghanistan and Myanmar.
In December, according to the trial, Radhakrishnan accompanied a group of Afghan women in The Hague where they met the prosecutor’s office and his investigators working on his investigation in Afghanistan.
Radhakrishnan said she was bringing the case “to prevent my own government from punishing me for trying to keep the Taliban responsible for its systematic violence against the women and girls of Afghanistan”.
The ICC prosecutor’s office – which has an active criminal investigation into crimes committed in Afghanistan as well as the situation in Myanmar and Bangladesh – frequently collects evidence and information of third parties, such as NGOs, groups of victims and UN investigators.
In their trial, Smith and Radhakrishnan asked the American court a statement that Trump’s order violates the first amendment and does not comply with emergency powers. They also want the Tribunal to prevent the government from “enforcing speech restrictions” imposed by the order.
In 2021, a federal court in California examined a similar legal challenge after Trump imposed sanctions against the predecessor of Khan. In this case, the judge prevented the government from enforcing the order against four law professors who helped the CPI prosecutor, who, according to her, “was likely to successfully challenge the first amendment”.
