Foley Hoag Obtains Preliminary Injunction for Open Society Justice Initiative and Law Professors Against Trump Administration in Lawsuit Over International Criminal Court Executive Order

January 4, 2021

Foley Hoag LLP has successfully obtained a preliminary injunction for the Open Society Justice Initiative and four law professors (Diane Marie Amann, Gabor Rona, Milena Sterio and Margaret deGuzman) against President Donald Trump's executive order sanctioning International Criminal Court (ICC) officials. A federal judge in the Southern District of New York has ordered the Trump administration not to enforce an executive order that effectively prevented human rights lawyers from collaborating with the ICC on cases of war crimes, crimes against humanity, and genocide. 

District Judge Katherine Polk Failla granted the plaintiffs’ request for a preliminary injunction based on free speech grounds, prohibiting the government from enforcing civil or criminal penalties under the International Economic Emergency Powers Act. A preliminary injunction is only granted when plaintiffs are able to show that they are likely to win the underlying case.

Foley Hoag LLP filed the lawsuit in October 2020 against President Trump, Secretary of State Mike Pompeo, Secretary of Treasury Steven Mnuchin, Office of Foreign Assets Control Director Andrea Gacki, Attorney General William Barr, and their respective U.S. Departments, on behalf of the plaintiffs, challenging Executive Order 13928.  The suit argues that the executive order violates constitutional rights, including the plaintiffs’ freedom of speech, and prevents them from carrying out work in support of international justice. 

The ICC was created in 2002 by the Rome Statute, a treaty, and is authorized to investigate and prosecute serious crimes including genocide, war crimes, and crimes against humanity, that are committed on the territories, or by the nationals, of the 123 states that are party to the treaty. The U.S., while instrumental in setting up the ICC, has never ratified the treaty.

Andrew Loewenstein, a partner in Foley Hoag’s International Litigation and Arbitration Department and lead counsel in the litigation, praised the court for “recognizing the administration’s infringement of the plaintiffs’ First Amendment constitutional rights, preventing them from assisting the ICC in prosecuting even the very worst of international crimes.”

Other Foley Hoag attorneys on the plaintiffs’ team include Shrutih Tewarie, Brittan Heller, Nicholas Renzler, Stephen Stich and Ned Melanson. 

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