Foley Hoag Represents Open Society Justice Initiative and Law Professors in Trump Administration Lawsuit Over International Criminal Court Executive Order

October 01, 2020

Foley Hoag LLP is representing the Open Society Justice Initiative and four law professors (Diane Marie Amann, Gabor Rona, Milena Sterio and Margaret deGuzman) in filing a complaint against the U.S. government over a Trump administration executive order authorizing draconian economic sanctions and severe civil and criminal penalties for those who support the International Criminal Court (ICC).

The lawsuit is the first to challenge Executive Order 13928, and comes one month after the U.S. imposed sanctions on senior officials at the ICC, including Fatou Bensouda, the court’s chief prosecutor.

The lawsuit — filed October 1, 2020 in a federal court in the Southern District of New York 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 — 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.

All the plaintiffs, who speak, write and advocate about international justice issues around the world, contend that it irreparably harms their professional work. The lawsuit also seeks to stop the U.S. government from enforcing the executive order while the court considers its constitutionality.

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.

The executive order is the latest in a series of attacks by the U.S. government on the ICC. On June 11, 2020, President Trump issued Executive Order 13928, targeting persons associated with or supporting the International Criminal Court.  On September 2, 2020, Secretary Pompeo announced that the U.S. was imposing asset freezes and other financial sanctions on two senior officials at the ICC, Bensouda and Phakiso Mochochoko the head of the ICC’s jurisdiction division. Officials from the United Nations, the European Union, other U.S. allies like Canada, and Bensouda’s home country, The Gambia, swiftly condemned the U.S.’ actions.

Andrew Loewenstein, a partner in Foley Hoag’s International Litigation and Arbitration Department and lead counsel in the litigation, praised the plaintiffs for having the “courage to challenge the administration’s unconstitutional executive order, which prevents them from supporting the ICC’s investigation and prosecution of some of the world’s most serious crimes.”

Foley Hoag attorneys Andrew Loewenstein, Shrutih Tewarie, Brittan Heller, Nicholas Renzler, Stephen Stich and Ned Melanson are representing the plaintiffs in this matter.