U.S. Sanctions on the Worldwide Prison Court docket – Model Slux

Because the negotiation of the Rome Statute – the treaty establishing the Worldwide Prison Court docket (ICC) – U.S. relations with the Court docket have zig-zagged between quiet assist and open hostility. With President Trump’s return to workplace, we’re again to confrontation.

In February, Trump issued an government order stating that the ICC “has engaged in illegitimate and baseless actions concentrating on America and our shut ally Israel.” The order imposed U.S. sanctions on the ICC prosecutor Karim Khan. That very same order instructed the Secretary of State to make extra sanctions designations inside 60 days. Though delayed, on June 5, the Secretary of State made these designations of 4 ICC judges – two of whom approved the investigation into Afghanistan and two of whom authorized the Netanyahu and Gallant arrest warrants. This put up describes these developments and situates them throughout the broader context of U.S.-ICC relations.

1 / 4-century of oscillation

The specifics of Trump’s confrontation with the ICC are new, however the themes are outdated. Whereas the USA has by no means grow to be a celebration to the Rome Statute, its relations with the ICC have assorted during the last twenty-five years in methods which can be tied carefully to adjustments in U.S. presidential administrations.  As a refresher:

• The Clinton administration participated within the negotiation of the Rome Statute.President Clinton then signed the Rome Statute however acknowledged that “I can’t, and don’t advocate that my successor submit the treaty to the Senate for recommendation and consent” till sure “basic considerations” are happy.
• The administration of George W. Bush energetically resisted the ICC. Amongst different actions, it “unsigned” the Rome Statute, negotiated varied bilateral agreements aimed toward minimizing the potential extradition of U.S. army personnel and residents to the ICC, and signed into regulation the congressional invoice that’s colloquially often known as “The Hague Invasion Act.” George W. Bush’s second time period noticed a slight thaw, because the Administration didn’t veto the Safety Council’s 2005 referral of the state of affairs in Darfur.
• The Obama administration interacted extra positively with the ICC, together with by attendance on the Kampala Assessment Convention “within the spirit of renewed engagement,” by supporting the Safety Council’s 2011 referral of the state of affairs in Libya, and by serving to the ICC achieve custody over sure suspects.
• The primary Trump administration returned to a posture of hostility (spearheaded by John Bolton, one of many key architects of the Bush-era method). After the ICC approved an investigation into Afghanistan within the spring of 2020 that might embody alleged conflict crimes dedicated by U.S. personnel, President Trump issued an government order – mentioned extra under – imposing sanctions on sure ICC personnel.
• The Biden administration turned to re-renewed engagement with the ICC, revoking President Trump’s government order regardless of its personal considerations concerning the investigation in Afghanistan. President Biden spoke favorably of the 2023 arrest warrant in opposition to Vladimir Putin, whereas objecting to these issued in opposition to Benjamin Netanyahu and Yoav Gallant.

With the election of President Trump to his second time period, it was predictable that the pendulum would swing once more – and it did, swiftly.

President Trump’s government orders

Throughout his first few weeks in workplace, President Trump took two measures in opposition to the ICC. First, instantly after taking workplace on January 20, 2025, he issued an government order that revoked many Biden-era orders, together with the one which had repealed Trump’s 2020 government order imposing ICC-focused sanctions (thus reviving this 2020 order). Second, on February 6, he issued one other a brand new government order – EO 14,203 – “Imposing Sanctions on the Worldwide Prison Court docket.” The place the sooner government order had emphasised considerations concerning the investigation of U.S. personnel in Afghanistan, the brand new order additionally appeared motivated by the arrest warrants for Netanyahu and Gallant. The scope of the brand new order is barely broader than the revived order, so I’ll focus simply on it.

The sanctions imposed by EO 14,203 are sometimes described as in opposition to the ICC. The ICC is certainly the motivation for these sanctions, and one portion of the order expressly denies entry into the USA to non-citizens “decided by the Secretary of State to be employed by, or performing as an agent of, the ICC.”

However in any other case, the methodology of EO 14,203 is to give attention to specific people. The order provides the U.S. Secretary of State the ability to designate non-U.S. residents who’re supporting the ICC investigations into residents or lawful residents of the USA or its allies (learn: Israel). It additionally instantly listed Karim Khan, the ICC Prosecutor, as a chosen individual. EO 14,203 was issued earlier than Khan took a depart of absence from the ICC following grave allegations of sexual misconduct.

As soon as individuals are designated, three penalties kick in, except exceptions are granted.

First, they’re denied the flexibility to enter the USA, as are their spouses and kids. Second, any U.S.-controlled belongings of those designated individuals are blocked.  Third – and that is the availability with essentially the most dramatic attain – EO 14,203 prohibits anybody, together with U.S. residents, from offering “funds, items, or companies” to designated individuals. These final two penalties include excessive potential penalties for his or her violation.

Along with instantly designating Khan, EO 14,203 instructed the Secretary of State to make extra designations inside 60 days. It took about twice that lengthy, however, on June 5, Marco Rubio made extra designations of 4 ICC judges, two of whom approved the investigation into Afghanistan and two of whom authorized the Netanyahu and Gallant arrest warrants.

Just like the 2020 order, EO 14,203 depends for its authorized authority on long-standing U.S. statutes that delegate appreciable powers to the President. The first foundation is the Worldwide Emergency Financial Powers Act, often known as IEEPA, which authorizes the President to declare a nationwide emergency to take care of an “uncommon and extraordinary menace … to the nationwide safety, overseas coverage, or financial system of the USA.” As soon as a nationwide emergency is said – as is finished within the order – this unlocks varied different powers, together with the ability to dam belongings and to forestall anybody from any transactions relating to the property of sanctioned individuals. This comes with sure exceptions I’ll focus on later. Due to its broad attain and minimal procedural necessities, IEEPA has grow to be a favourite instrument of U.S. presidents. As Tim Meyer mentioned earlier on this weblog, in a historic first, President Trump is at present trying to make use of IEEPA as home authority for many of his latest tariffs.

Along with IEEPA, the portion of EO 14,203 that bans entry into the USA of designated individuals, their spouses/kids, and ICC personnel depends on a U.S. regulation that provides the President appreciable discretionto deny non-citizens entry into the USA. This is similar regulation that President Trump invoked in 2017 and invoked once more on June 4, 2025, to impose “journey bans” on the entry of classes of individuals from varied international locations, lots of them Muslim-majority.

Challenges to the chief orders in U.S. home courts

A number of lawsuits have been introduced this spring difficult the appliance of EO 14,203. The plaintiffs are U.S. residents who interact with the Prosecutor’s workplace as regulation professors and human rights advocates. (Be aware: one other case, introduced by a U.S. citizen who works within the Workplace of The Prosecutor (OTP) on the state of affairs in Darfur, was voluntarily dismissed on Could 13 after that citizen acquired a license from the U.S. authorities authorizing him to proceed his work). The plaintiffs argue that the order exceeds the scope of President Trump’s authority beneath IEEPA and violates their constitutional rights. They’re in search of preliminary injunctions. I anticipate we’ll see preliminary choices from the federal district courts pretty quickly – though Khan’s depart of absence could diminish the strain for pace, as no energetic members of the OTP are at present designated individuals.

A considerate put up by Nema Milaninia on the Lawfare weblog covers the authorized points in these circumstances intimately, however I wish to add three ideas.

First, the plaintiffs argue that the President can’t sanction their provision of authorized assist to the Prosecutor, as a result of this assist primarily takes the type of “data” and the IEEPA can’t be used to control the importation or exportation of knowledge. Their arguments have appreciable benefit in my opinion, and likewise come at a superb second. A latest U.S. Supreme Court docket choice has instructed courts to be much less deferential to companies in relation to statutory interpretation, and the tariff circumstances are opening the eyes of judges to the abusive prospects of IEEPA, particularly when learn broadly. This may also be a second to revisit extra usually the extent to which the availability of “companies” to designated individuals will be prohibited through IEEPA (whose authorizing textual content facilities round transactions that relate to these individuals’ “property”).

Second, the plaintiffs argue that EO 14,203 violates their First Modification speech rights as a result of it seems to ban their speech-based engagement with the OTP.  This argument succeeded with a district court docket in 2020 in the same case introduced in opposition to the sooner government order. I feel it’s prone to succeed once more. Certainly, the Trump administration appears to acknowledge that some engagement with the ICC by the plaintiffs can be protected speech – whereas being unhelpfully reluctant to specify the place precisely it could draw the enforcement line between protected speech on the one hand and prohibited habits on the opposite.

Third, it is very important acknowledge the restricted nature of those circumstances. Even when plaintiffs are absolutely profitable, their lawsuits won’t terminate EO 14,203. Profitable lawsuits would cut the scope of the order with respect to what counts as “funds, items, and companies” – not less than for U.S. residents (if achieved on First Modification grounds) and presumably for everybody (if achieved on IEEPA grounds). However the asset-blocking, the journey prohibitions, and vital parts of the prohibition on offering “funds, items, and companies” would stay in impact – as would the Trump administration’s underlying posture of hostility.

The larger image

On many issues, the actions of the second Trump administration are much more dramatic and appalling than these of the primary Trump administration. With respect to the ICC, nevertheless, the story is a few change of diploma somewhat than of variety. The second Trump administration has largely recycled the method from the primary Trump administration, whereas doing so earlier in Trump’s time period and at a modestly greater diploma of magnitude. Certainly, we will see the 2020 assault on the ICC by the primary Trump administration as a precursor to his broader 2025 assaults on legal professionals, courts, and the rule of regulation.

In different methods, the continuity runs all the way in which again to the Bush administration, with its disdain for the ICC and for the without-fear-or-favor imaginative and prescient of worldwide justice that the ICC embodies. In truth, the Bush administration put much more work into opposing the ICC than has the Trump administration thus far. It takes way more effort for an administration to barter bilateral agreements and get a congressional regulation handed than it takes to invoke IEEPA. There could also be extra strikes forward from the Trump administration – there may be, for instance, draft laws pending in Congress – however I doubt we’ll see a lot till the ICC itself takes additional steps akin to in search of arrest warrants for U.S. personnel based mostly on the state of affairs in Afghanistan or issuing additional arrest warrants in opposition to Israeli leaders.

All this implies, regrettably, that the sample of open hostility in direction of the ICC throughout Republican administrations is prone to proceed. But classes from earlier occasions additionally counsel that these sanctions will likely be neither fully costless to the Trump administration nor, I imagine, fully dangerous for the ICC.

As to prices, the Trump administration disdains rules of worldwide justice and the rules-based worldwide order. However even when it continues to take action, it might nonetheless come to understand that delicate energy is actual and that it’ll lose leverage from attacking establishments which can be pricey to different and higher actors – simply because the Bush administration got here to understand how a lot political capital it was dropping by its antagonism to the ICC. We’re already seeing robust statements from around the globe in opposition to the latest sanctions on the judges.

As for results on the ICC, the present sanctions have extreme impacts for it and particularly for the designated people – together with honorable judges who’re striving to uphold rules of worldwide legal justice. But the assaults by the Trump administration on the ICC could have the counter-intuitive impact of galvanizing assist for the ICC and the reason for worldwide legal justice usually. Essentially the most dramatic actions by the Bush administration in opposition to the ICC occurred between Could and August of 2002, because the ICC was getting into into drive, and but these months additionally noticed one of many highest durations of ratification by different international locations. I hope the months and years forward will present international locations around the globe equally stepping as much as assist the ICC and worldwide legal justice extra usually. For the ICC is imperfect, however we want it – and the accountability that it was created to offer.