In a series of actions this week, the Department of the Treasury moved to implement regulations to enforce sanctions related to actions of the International Criminal Court (ICC). Almost immediately, however, President Trump’s executive order and the regulations were challenged in court.

ICC-Related Executive Order and Regulations

On June 11, 2020, President Trump issued Executive Order 13928 stating that the ICC’s “illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan” threaten to infringe the sovereignty of the United States and impede the critical national security and foreign policy work of United States and allied officials. The ICC operates under the auspices of the Rome Statute, prosecuting cases of international concern, including war crimes and crimes against humanity. The United States, however, is not a party to the Rome Statute, and has never accepted ICC jurisdiction over its personnel.

In response to the ICC’s investigation of U.S. personnel conduct in Afghanistan, Executive Order 13928 blocked all property and interests in property that are in the United States or within the possession or control of any United States person, of any foreign person determined by the Secretary of State, Secretary of the Treasury and the Attorney General to have:

  • directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States;
  • directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government;
  • materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any ICC investigations, arrests, detainments or prosecutions.

On October 1, 2020, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued regulations to implement Executive Order 13928. The regulations adds part 520 to Title 31 of the Code of Federal Regulations (C.F.R.) at Chapter V. OFAC noted that it intends to supplement these regulations with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance, general licenses, and statements of licensing policy.

The immediate effect of these regulations is to more clearly authorize the U.S. government’s freezing of the assets of two individuals designated and placed on OFAC’s Specially Designated Nationals (SDN) List on September 2, 2020. Fatou Bensouda, an ICC prosecutor investigating potential war crimes in Afghanistan, and Phakiso Mochokhoko, head of the ICC’s Jurisdiction, Complementarity, and Cooperation Division, were placed on the SDN List. As a result of these persons being placed on the SDN List, all property and interests in property of these persons or entities that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC. In addition, persons that engage in certain transactions or provide material assistance or support to any persons or entities designated under these new ICC-related sanctions also risk designation.


On October 1, 2020, four law professors and a nonprofit organization that have previously worked with the ICC filed suit in the U.S. District Court for the Southern District of New York seeking to stop implementation of the executive order and regulations. The suit claims that Executive Order 13928 and the regulations violate the first amendment right of the plaintiffs to freedom of speech because the regulations are too vague and appear to possibly cover such actions. The suit also claims that the plaintiffs’ fifth amendment rights have been violated by lacking required clarity as to what acts subject a person to enforcement. They further claim that Executive Order 13928 and the regulations are ultra vires under International Emergency Economic Powers Act (IEEPA) by purporting to regulate the plaintiffs’ provision of information and informational materials, which is exempted by IEEPA. The plaintiffs seek both a declaration that the executive order and regulations are unconstitutional and ultra vires as well as an injunction against enforcement of the executive order and regulations against the plaintiffs.