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

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.

Legal analysis

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.