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Once upon a time, those who drove thinking among (mostly) liberal democratic states thought that politics and its excesses might be well managed within a cage of law. There was a Marxist-Leninist variant of this insight as well. The bottom line was that if politics and political action could be managed through law, then the sensibilities, authority, behaviors, and cognitive cages of law would infiltrate and be naturalized within politics. Effectively the idea might be thought to be one that law, and its regimes, could tame politics and its excesses (especially those excesses well demonstrated in what for the people who cam after, was universally viewed as the global political monstrosities of the period 1933-1945). One of the apex expressions of this insight--not implausible at the time--was the construction, a century in the making--of an International Criminal Court, its prosecutorial arm, and a legal architecture within which it was possible to develop a criminal law of abusive political actions or decisions--at least in extremis, and at least theoretically.
Nonetheless, it was never exactly clear that the transposition of the cognitive cages of law would displace the practices and cultures of politics. The reverse might also be true. Law might itself adopt the practices and sensibilities of politics, and political action, now enveloped within the language and performative spaces of law--that is that even as politics was caged within law, law would become an expression of politics and in the process adopt its practices, sensibilities and forms. If the latter is the case, then political bodies might be inclined to treat judicial organs as just another political actor, though one whose authority was sources in law (now understood as a means of rationalizing politics). It might follow that political actors would then be tempted to treat legal organs like political organs. That appears to be the performative debate, the current phenomenology, of both the International Court of Justice and the International Criminal Court. None of this is good or bad--it merely suggests an experiential expression of a quite contentious debate between distinct forms of understanding politics, law, their relationship, and their alignment through the structural coupling of functionally differentiated public institutional organs. The debate continues--largely unresolved, and includes its subset--abuse of power within law.
The latest experiential or performative battleground appears to be located within the Presidency of the United States and the Organs of the International Criminal Court. On 6 February 2025, President Trmp issued an Executive Order: Imposing Sanctions on the International Criminal Court. The ext of this Executive Order follows below.
The president’s executive order on the I.C.C. comes after Democrats recently blocked a bill in the Senate that would have imposed sanctions on officials affiliated with the tribunal court over its actions against the Israeli officials. Many Democrats argued that the legislation was far too broad and could apply not only to a wide range of personnel at the court, but also to American companies working with it. (New York Times here)
The reactions are both predictable. The ICC and its defenders condemned the U.S. action with its own logic and justifications, ones grounded on the old consensus that gave rise to the presumptions on which the architecture of the ICC was built.
The ICC condemns the issuance by the US of an Executive Order seeking to impose sanctions on its officials and harm its independent and impartial judicial work. The Court stands firmly by its personnel and pledges to continue providing justice and hope to millions of innocent victims of atrocities across the world, in all Situations before it. We call on our 125 States Parties, civil society and all nations of the world to stand united for justice and fundamental human rights. (here; political reactions eg here and here).
These are quite useful in understanding the ideological divide that currently marks approaches by powers that cannot be entirely ignored, about the authority of these law managing organs (in specific context) as well as the larger issue in which that micro issue (which triggered the sanctions) is embedded--the relationship of law and politics within and between social collectives organized as States and other bodies exercising power of some sort that can product negative human impacts. At least from the perspective of the United States, those positions both in the micro debates (abuse of power and misapplication of the legal framework for taming politics) and its macro framework (if law is now the means of politics ought it be treated as any other political act or does the transposition of politics into law then change those political sensibilities). No answers here, just the suggestion that issues that were thought decided a generation ago (at least by those with the authority build and then to act on that consensus) appear to have resurfaced in new and quite emotive forms.
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.)
(NEA), section 212(f) of the Immigration and Nationality Act of 1952 (8
U.S.C. 1182(f)), and section 301 of title 3, United States Code,
I, DONALD J. TRUMP, President of the United States of America, find
that the International Criminal Court (ICC), as established by the Rome
Statute, has engaged in illegitimate and baseless actions targeting
America and our close ally Israel. The ICC has, without a legitimate
basis, asserted jurisdiction over and opened preliminary investigations
concerning personnel of the United States and certain of its allies,
including Israel, and has further abused its power by issuing baseless
arrest warrants targeting Israeli Prime Minister Benjamin Netanyahu and
Former Minister of Defense Yoav Gallant. The ICC has no jurisdiction
over the United States or Israel, as neither country is party to the
Rome Statute or a member of the ICC. Neither country has ever
recognized the ICC’s jurisdiction, and both nations are thriving
democracies with militaries that strictly adhere to the laws of war.
The ICC’s recent actions against Israel and the United States set a
dangerous precedent, directly endangering current and former United
States personnel, including active service members of the Armed Forces,
by exposing them to harassment, abuse, and possible arrest. This malign
conduct in turn threatens to infringe upon the sovereignty of the
United States and undermines the critical national security and foreign
policy work of the United States Government and our allies, including
Israel. Furthermore, in 2002, the Congress enacted the American
Servicemembers’ Protection Act of 2002 (22 U.S.C. 7421 et seq.)
to protect United States military personnel, United States officials,
and officials and military personnel of certain allied countries against
criminal prosecution by an international criminal court to which the
United States is not party, stating, “In addition to exposing members of
the Armed Forces of the United States to the risk of international
criminal prosecution, the Rome Statute creates a risk that the President
and other senior elected and appointed officials of the United States
Government may be prosecuted by the International Criminal Court.” (22
U.S.C. 7421(9)).
The United States unequivocally opposes
and expects our allies to oppose any ICC actions against the United
States, Israel, or any other ally of the United States that has not
consented to ICC jurisdiction. The United States remains committed to
accountability and to the peaceful cultivation of international order,
but the ICC and parties to the Rome Statute must respect the decisions
of the United States and other countries not to subject their personnel
to the ICC’s jurisdiction, consistent with their respective sovereign
prerogatives.
The United States will impose tangible and
significant consequences on those responsible for the ICC’s
transgressions, some of which may include the blocking of property and
assets, as well as the suspension of entry into the United States of ICC
officials, employees, and agents, as well as their immediate family
members, as their entry into our Nation would be detrimental to the
interests of the United States.
I therefore determine that
any effort by the ICC to investigate, arrest, detain, or prosecute
protected persons, as defined in section 8(d) of this order, constitutes
an unusual and extraordinary threat to the national security and
foreign policy of the United States, and I hereby declare a national
emergency to address that threat. I hereby determine and order:
Section 1. (a) All property and interests in property that are in the
United States, that hereafter come within the United States, or that
are or hereafter come within the possession or control of any United
States person, of the following persons are blocked and may not be
transferred, paid, exported, withdrawn, or otherwise dealt in:
(i) the person listed in the Annex to this order; and
(ii)
any foreign person determined by the Secretary of State, in
consultation with the Secretary of the Treasury and the Attorney
General:
(A) to have directly engaged in any effort by the ICC to
investigate, arrest, detain, or prosecute a protected person without
consent of that person’s country of nationality;
(B) to have
materially assisted, sponsored, or provided financial, material, or
technological support for, or goods or services to or in support of, any
activity in subsection (a)(ii)(A) of this section or any person whose
property or interests in property are blocked pursuant to this order; or
(C)
to be owned or controlled by, or to have acted or purported to act for
or on behalf of, directly or indirectly, any person whose property or
interests in property are blocked pursuant to this order.
(b) The
prohibitions in subsection (a) of this section apply except to the
extent provided by statutes, or in regulations, orders, directives, or
licenses that may be issued pursuant to this order, and notwithstanding
any contract entered into or any license or permit granted before the
date of this order.
Sec. 2. I hereby determine that the
making of donations of the types of articles specified in section
203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of
any person whose property and interests in property are blocked pursuant
to section 1 of this order would seriously impair my ability to address
the national emergency declared in this order, and I hereby prohibit
such donations as provided by section 1 of this order.
Sec. 3. The prohibitions in section 1(a) of this order include:
(a) the making of any contribution or provision of funds, goods, or
services by, to, or for the benefit of any person whose property and
interests in property are blocked pursuant to section 1 of this order;
and
(b) the receipt of any contribution or provision of funds, goods, or services from any such person.
Sec. 4. The unrestricted immigrant and nonimmigrant entry into the
United States of aliens determined to meet one or more of the criteria
in section 1 of this order, as well as immediate family members of such
aliens, or aliens determined by the Secretary of State to be employed
by, or acting as an agent of, the ICC, would be detrimental to the
interests of the United States, and the entry of such persons into the
United States, as immigrants or nonimmigrants, is hereby suspended,
except where the Secretary of State determines that the entry of the
person into the United States would not be contrary to the interests of
the United States, including when the Secretary of State so determines,
based on a recommendation of the Attorney General, that the person’s
entry would further important United States law enforcement objectives.
In exercising this responsibility, the Secretary of State shall consult
with the Secretary of Homeland Security on matters related to
admissibility or inadmissibility within the authority of the Secretary
of Homeland Security. Such persons shall be treated as persons covered
by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry
of Aliens Subject to United Nations Security Council Travel Bans and
International Emergency Economic Powers Act Sanctions). The Secretary
of State shall have the responsibility for implementing this section
pursuant to such conditions and procedures as the Secretary of State has
established or may establish pursuant to Proclamation 8693.
Sec. 5. Within 60 days of the date of this order, the Secretary of the
Treasury, in consultation with the Secretary of State, shall submit to
the President a report on additional persons that should be included
within the scope of section 1 of this order.
Sec. 6. (a)
Any transaction that evades or avoids, has the purpose of evading or
avoiding, causes a violation of, or attempts to violate any of the
prohibitions set forth in this order is prohibited.
(b) Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited.
Sec. 7. Nothing in this order shall prohibit transactions for the
conduct of the official business of the Federal Government by employees,
grantees, or contractors thereof.
Sec. 8. For the purposes of this order:
(a) the term “person” means an individual or entity;
(b) the term “entity” means a government or instrumentality of such
government, partnership, association, trust, joint venture, corporation,
group, subgroup, or other organization;
(c) the term “United
States person” means any United States citizen, permanent resident
alien, entity organized under the laws of the United States or any
jurisdiction within the United States (including a foreign branch,
subsidiary, or employee of such entity), or any person lawfully in the
United States;
(d) the term “protected person” means:
(i)
any United States person, unless the United States provides formal
consent to ICC jurisdiction over that person or becomes a state party to
the Rome Statute, including:
(A) current or former members of the Armed Forces of the United States;
(B) current or former elected or appointed officials of the United States Government; and
(C) any other person currently or formerly employed by or working on behalf of the United States Government; and
(ii)
any foreign person that is a citizen or lawful resident of an ally of
the United States that has not consented to ICC jurisdiction over that
person or is not a state party to the Rome Statute, including:
(A) current or former members of the armed forces of such ally of the United States;
(B) current or former elected or appointed government officials of such ally of the United States; and
(C) any other person currently or formerly employed by or working on behalf of such a government;
(e) the term “ally of the United States” means:
(i) a government of a member country of the North Atlantic Treaty Organization; or
(ii)
a government of a “major non-NATO ally,” as that term is defined by
section 2013(7) of the American Servicemembers’ Protection Act of 2002
(22 U.S.C. 7432(7));
(f) the term “immediate family member” means a spouse or child;
(g) the term “alien” has the meanings given to the term in section
101(a)(3) of the Immigration and Nationality Act of 1952 (8 U.S.C.
1101(a)(3)); and
(h) the term “foreign person” means a person that is not a United States person.
Sec. 9. For those persons whose property and interests in property
are blocked pursuant to this order who might have a constitutional
presence in the United States, I find that because of the ability to
transfer funds or other assets instantaneously, prior notice to such
persons of measures to be taken pursuant to section 1 of this order
would render those measures ineffectual. I therefore determine that for
these measures to be effective in addressing the national emergency
declared in this order, there need be no prior notice of a listing or
determination made pursuant to section 1 of this order.
Sec.
10. The Secretary of the Treasury, in consultation with the Secretary
of State, is hereby authorized to take such actions, including adopting
rules and regulations, and to employ all powers granted to the President
by IEEPA as may be necessary to implement this order. The Secretary of
the Treasury may, consistent with applicable law, redelegate any of
these functions within the Department of the Treasury. All executive
departments and agencies of the United States shall take all appropriate
measures within their authority to implement this order.
Sec. 11. The Secretary of the Treasury, in consultation with the
Secretary of State, is hereby authorized to submit recurring and final
reports to the Congress on the national emergency declared in this
order, consistent with section 401(c) of the NEA (50 U.S.C. 1641(c)) and
section 204(c) of IEEPA (50 U.S.C. 1703(c)).
Sec. 12. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii)
the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)
This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
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