Brief of Former Senior Government Officials With Expertise in Sanctions Policy and Administration as Amici Curiae

Across administrations of both parties, U.S. economic sanctions programs have treated IEEPA sanctions as an instrument necessary to address bona fide threats to the national security, foreign policy, or economy of the United States. Consistent with stated Congressional intent in enacting the statute, and the statute’s own language, presidents have invoked IEEPA to establish U.S. sanctions programs to combat clear and present threats, such as hostage-taking, terrorism, nuclear proliferation, narcotics trafficking, corruption, kleptocracy, war crimes, human-rights abuses, and acts of geopolitical aggression or destabilization. This historical record could not contrast more sharply with the use of IEEPA authority to impose sanctions targeting the ordinary work of the International Criminal Court (“ICC”), which was established to hold to account perpetrators of the gravest crimes – crimes that are of concern to the United States itself as well as the rest of the international community. Indeed, the targets of the sanctions program created by the Order seek to promote accountability for persons who commit atrocities that the United States itself targets through other sanctions programs and criminally prosecutes here at home.

The Order has been used to date to target ICC judges, prosecutors, and officials; a United Nations Special Rapporteur; and human rights organizations on the stated basis of their participation in, or support for, specified ICC-related investigations and prosecutions. The designations thus reach actors performing or supporting international treaty-based accountability functions, rather than conduct that is, on its face, violent, corrupt, repressive, or destabilizing.

In the collective judgment of amici, the Order exceeds the scope and purpose of IEEPA, which was enacted as a post-Watergate constraint on the exercise of presidential emergency power, not an open-ended delegation. IEEPA’s substantive limits on presidential authority—including the requirements of a genuine “unusual and extraordinary threat” and a nexus between the exercise of authority and the declared emergency—must be treated as enforceable, not merely precatory.

Executive branch practice and policy statements over the years, taken together, reflect this understanding through the recurring invocation of IEEPA authority to address manifest malign conduct and to disrupt sanctions targets in a manner that causes a reduction in the capabilities of targets to engage in malign behavior. The ICC sanctions depart fundamentally from that orientation by targeting the lawful operations of a treaty-based international judicial institution broadly supported by U.S. partners and allies, the international community as a whole, and—in many specific instances—by the United States government itself, rather than conduct that is verifiably corrupt, violent, repressive, destabilizing, or otherwise threatening. This aberration in use of sanctions threatens the long-term integrity and effectiveness of the entire U.S. sanctions architecture, a critical U.S. foreign policy tool that amici spent their careers building.

Read the full Amicus Brief.