The Biden Administration has announced several significant decisions over the past few days. On April 1, President Biden signed Executive Order 14022 (the “EO 14022”), terminating the national emergency declared in Executive Order 13928, dated on June 11, 2020 (“EO 13928”). EO 14022 reverses EO 13928, which blocked the property of certain persons associated with the International Criminal Court (“ICC”).

EO 14022 explained that, although the United States continues to object to assertions of ICC jurisdiction over US military personnel, “the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

In addition, on April 2, the Department of State terminated a 2019 policy on visa restrictions on certain ICC personnel. In a press statement, Secretary of State Antony Blinken explained that, “[t]hese decisions reflect our assessment that the measures adopted were inappropriate and ineffective.” In addition, OFAC removed Fatou Bensouda, ICC Prosecutor, and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC, from its Specially Designated Nationals List.

The ICC was created by the Rome Statute, to prosecute war crimes. It has been operating since July 1, 2002. Although then-President Bill Clinton signed the Rome Statute in 2000, he did not submit the treaty to the Senate for ratification. In 2002, then-President George W. Bush indicated that the US no longer intended to ratify the treaty. Thus, the US has never been a “member state” of the ICC. As a result, the United States has maintained that its citizens are not subject to its jurisdiction. In contrast, the ICC argues that it has jurisdiction over all acts committed in the territory of a member state, including acts committed by citizens of non-member states.

Simultaneously, the US appears to be moving toward negotiating the terms of a US re-entry into the 2015 nuclear deal with Iran. On April 5, the US and Iran agreed to participate in discussions in Vienna to attempt to revive the 2015 Joint Comprehensive Plan of Action (“JCPOA”). Over the past few days, senior officials from the governments of Iran, France, the UK, Germany, Russia, China, the US and the EU have participated in these discussions, although US and Iranian officials have not met directly.

The participants have established two working groups to discuss a resumption of compliance with the JCPOA. One working group is focusing on reaching an agreement with the US to lift certain sanctions against Iran. The other working group is focusing on reaching an agreement with Iran, to bring it back into compliance with the JCPOA’s limitations on nuclear enrichment and stockpiles of enriched uranium.

On April 9, a senior State Department official, who participated in the Vienna discussions, stated that “our view is that all sanctions that are inconsistent with the JCPOA and inconsistent with the benefits that Iran expects from the JCPOA, we are prepared to lift those if Iran comes back into compliance with its obligations.” The discussions in Vienna are scheduled to resume this week.

Previously, we discussed the Biden Administration’s decision to rescind the United States’ efforts to trigger a “snapback” of previous United Nations sanctions against Iran. We also discussed the difficulties of predicting how the Iran sanctions program could change if the United States rejoins the JCPOA.

We will continue to monitor developments in this area. Please contact the authors or your usual Herbert Smith Freehills contacts for more information.

Jonathan Cross
Jonathan Cross
Counsel, New York
+1 917 542 7824
Christopher Boyd
Christopher Boyd
Associate, New York
+1 917 542 7821
Brittany Crosby-Banyai
Brittany Crosby-Banyai
Associate, New York
+1 917 542 7837
Christopher Milazzo
Christopher Milazzo
Associate, New York
+1 917 542 7807