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Executive Order 13928: First-Term Sanctions on ICC Prosecutor Fatou Bensouda (2020)

Trump used a national-emergency sanctions order to freeze the assets of the ICC's chief prosecutor and a senior aide because the court was investigating possible crimes by US personnel in Afghanistan. Human Rights Watch called it a 'perverse use of sanctions, devised for alleged terrorists and drug kingpins.' The order was revoked in 2021.

Record summary

Grade

Grade 4 of 5: Critical Rights and Rule-of-Law Concern

International crime

No international crime alleged

Systematic actions that undermine fundamental constitutional or international legal protections at the structural level. Scale and definitions

Status
Concluded
Incident date
Record updated
Category
Rule of Law
Legal posture
Executive action
ICC relevance
Yes
Sources
4 cited
Stable ID
icc-sanctions-eo-13928-bensouda-2020
Legal basis
Executive Order 13928 under IEEPA and the National Emergencies Act; assessed against the international duty to investigate and prosecute torture (UN Convention against Torture) and Rome Statute Article 70 (offences against the administration of justice, which the US as a non-party is not bound by).
Posture note
The facts are documented in the Federal Register and were not disputed by the administration, which defended the order as protecting US personnel from a court whose jurisdiction it rejects. No court ruled on the order before it was revoked in April 2021. The 2025 sanctions programme against ICC officials is covered separately in the icc-sanctions entry.
Victims
ICC Prosecutor Fatou Bensouda and ICC official Phakiso Mochochoko, who were designated; indirectly, victims of alleged crimes in Afghanistan (including alleged torture in detention) whose access to an international forum the order sought to block.
Alleged responsible parties
  • Donald Trump, Signed Executive Order 13928— White House
  • Mike Pompeo, Secretary of State; designations under the order— Department of State

Key points

  • Executive Order 13928 (signed June 11, 2020; 85 FR 36139) declared that 'any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States' is 'an unusual and extraordinary threat to the national security and foreign policy of the United States' (Federal Register).
  • The order authorised blocking the property of foreign persons determined to have 'directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute' US personnel, or personnel of allies without their consent, and of anyone who materially assisted such efforts; it also suspended their entry into the United States (Federal Register).
  • Its preamble names the ICC Prosecutor's 'investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan' (Federal Register).
  • On September 2, 2020 the administration designated Prosecutor Fatou Bensouda and Phakiso Mochochoko, head of the Office of the Prosecutor's Jurisdiction, Complementarity and Cooperation Division, freezing their US assets and barring dealings with US persons (Human Rights Watch).
  • Human Rights Watch's Richard Dicker: 'The Trump administration's perverse use of sanctions, devised for alleged terrorists and drug kingpins, against prosecutors seeking justice for grave international crimes, magnifies the failure of the US to prosecute torture.'
  • The administration had already revoked the Prosecutor's US visa in 2019 (Human Rights Watch). The national emergency was terminated in April 2021 (Federal Register, document 2021-07239).

What happened

On June 11, 2020, President Trump signed Executive Order 13928, "Blocking Property of Certain Persons Associated With the International Criminal Court" (85 FR 36139). The order declared that "any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States" constitutes "an unusual and extraordinary threat to the national security and foreign policy of the United States." Its preamble pointed to the ICC Prosecutor's "investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan."

Section 1 authorised the Secretary of State to block the property of foreign persons found 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," to do the same for personnel of NATO members and major non-NATO allies, and to reach anyone who materially assisted such efforts. A further section suspended the entry into the United States of anyone meeting those criteria.

On September 2, 2020 the administration used the order against Prosecutor Fatou Bensouda and Phakiso Mochochoko, head of the Prosecutor's Jurisdiction, Complementarity and Cooperation Division. Human Rights Watch reported that the measures froze their US assets and barred them from dealings with US persons, including banks and companies, and that the administration had already revoked the Prosecutor's US visa in 2019. Richard Dicker, HRW's international justice director, said: "The Trump administration's perverse use of sanctions, devised for alleged terrorists and drug kingpins, against prosecutors seeking justice for grave international crimes, magnifies the failure of the US to prosecute torture." HRW also noted the administration's opposition to the ICC's Palestine investigation.

The emergency was terminated in April 2021. The Federal Register's record of EO 13928 lists it as revoked by EO 14022, and the termination order was published on April 7, 2021.

Is this an international crime? No Rome Statute core crime (Articles 6, 7, 8 or 8 bis) is in play. The conduct is directed at an international court, not at a civilian population or in the conduct of hostilities.

Offence against the administration of justice. Article 70(1)(d) of the Rome Statute makes it an offence to impede or intimidate an official of the Court "for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties." Sanctioning a prosecutor personally because of an investigation fits the plain words of that provision. But Article 70 offences are not core crimes, the United States is not a party, and no body has applied Article 70 to these facts. This entry does not characterise the order as an Article 70 offence; it records that the question arises.

Obstruction of accountability for torture. The investigation the order targeted concerned, among other things, alleged torture of detainees by US personnel. The United States is a party to the Convention against Torture, which obliges it to investigate and prosecute torture (Articles 4, 12) and provide redress (Article 14). The ICC's complementarity regime gives a state the chance to show genuine domestic proceedings. Using financial sanctions against the prosecutor, rather than engaging with complementarity, attacks the mechanism of last resort for crimes the US itself had not prosecuted.

Strongest defence argument. The United States is not a party to the Rome Statute and has consistently argued that the ICC cannot exercise jurisdiction over nationals of non-party states without consent. On that view, EO 13928 protected US personnel from an exercise of jurisdiction the US regards as unlawful, using a sanctions statute (IEEPA) that US courts generally treat as conferring broad presidential discretion. The argument has force as a statement of the US legal position. It does not answer the objection that the order punished individual officials for performing their duties rather than contesting jurisdiction through legal or diplomatic channels.

Why this grade

Critical. The rubric's critical anchor names "obstruction of international accountability mechanisms" expressly. The order is a structural measure: it declared a national emergency against an international court and personally sanctioned its chief prosecutor in order to stop an investigation into possible torture by US personnel. It is graded consistently with the 2025 ICC sanctions entry. It is not graded extreme because no Article 6, 7, 8 or 8 bis crime is involved, and no international-crime evidence classification is assigned.

International law engaged

InstrumentProvisionWhat it protects or prohibits
Rome Statute of the International Criminal CourtArticle 70(1)(d)Offence of impeding or intimidating an official of the Court to force or persuade them not to perform their duties. The United States is not a party to the Rome Statute.
UN CharterArticle 1(3)Purpose of promoting and encouraging respect for human rights; context for state cooperation with international justice mechanisms
UN Convention against TortureArticles 2, 4, 12 and 14Duty to prevent, criminalise, investigate and provide redress for torture (the United States is a party). The ICC investigation the order targeted concerned possible torture by US personnel.

Sequence of events

  1. Executive Order 13928 signed

    Trump declares a national emergency with respect to the ICC and authorises asset blocking and entry suspension for foreign persons involved in ICC efforts to investigate or prosecute US or allied personnel without consent (85 FR 36139, published June 15, 2020).

  2. Bensouda and Mochochoko designated

    The State Department designates ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko under the order, freezing their US assets (Human Rights Watch).

  3. Emergency terminated

    The national emergency declared in EO 13928 is terminated and the order revoked (Federal Register record of EO 13928, revoked by EO 14022; termination order published April 7, 2021).

Sources

  1. Executive Order 13928: Blocking Property of Certain Persons Associated With the International Criminal Court — Federal Register
  2. EO 13928 document record (signing date, citation, revocation by EO 14022) — Federal Register
  3. US Sanctions International Criminal Court Prosecutor — Human Rights Watch
  4. Federal Register search record: Termination of Emergency With Respect to the International Criminal Court (document 2021-07239, published April 7, 2021) — Federal Register

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