U.S. Sanctions on the Worldwide Prison Courtroom – Model Slux

For the reason that negotiation of the Rome Statute – the treaty establishing the Worldwide Prison Courtroom (ICC) – U.S. relations with the Courtroom 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 govt 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 licensed the investigation into Afghanistan and two of whom accredited the Netanyahu and Gallant arrest warrants. This submit 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 previous. Whereas the US has by no means develop into a celebration to the Rome Statute, its relations with the ICC have different 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 suggest that my successor submit the treaty to the Senate for recommendation and consent” till sure “elementary 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 geared toward minimizing the potential extradition of U.S. navy personnel and residents to the ICC, and signed into regulation the congressional invoice that’s colloquially often called “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 scenario 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 scenario 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 licensed an investigation into Afghanistan within the spring of 2020 that might embody alleged struggle crimes dedicated by U.S. personnel, President Trump issued an govt 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 govt order regardless of its personal considerations concerning the investigation in Afghanistan. President Biden spoke favorably of the 2023 arrest warrant towards Vladimir Putin, whereas objecting to these issued towards 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 govt orders

Throughout his first few weeks in workplace, President Trump took two measures towards the ICC. First, instantly after taking workplace on January 20, 2025, he issued an govt order that revoked many Biden-era orders, together with the one which had repealed Trump’s 2020 govt order imposing ICC-focused sanctions (thus reviving this 2020 order). Second, on February 6, he issued one other a brand new govt order – EO 14,203 – “Imposing Sanctions on the Worldwide Prison Courtroom.” The place the sooner govt 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 towards the ICC. The ICC is certainly the motivation for these sanctions, and one portion of the order expressly denies entry into the US to non-citizens “decided by the Secretary of State to be employed by, or appearing as an agent of, the ICC.”

However in any other case, the methodology of EO 14,203 is to deal with specific people. The order offers the U.S. Secretary of State the facility to designate non-U.S. residents who’re supporting the ICC investigations into residents or lawful residents of the US or its allies (learn: Israel). It additionally instantly listed Karim Khan, the ICC Prosecutor, as a delegated particular person. 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, until exceptions are granted.

First, they’re denied the power to enter the US, 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 probably the most dramatic attain – EO 14,203 prohibits anybody, together with U.S. residents, from offering “funds, items, or providers” 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 licensed the investigation into Afghanistan and two of whom accredited 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 called 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 US.” As soon as a nationwide emergency is asserted – as is finished within the order – this unlocks varied different powers, together with the facility to dam belongings and to stop anybody from any transactions relating to the property of sanctioned individuals. This comes with sure exceptions I’ll talk about later. Due to its broad attain and minimal procedural necessities, IEEPA has develop into a favourite device of U.S. presidents. As Tim Meyer mentioned earlier on this weblog, in a historic first, President Trump is presently making an attempt 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 US of designated individuals, their spouses/youngsters, and ICC personnel depends on a U.S. regulation that offers the President appreciable discretionto deny non-citizens entry into the US. This is identical 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 nations, a lot 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 applying of EO 14,203. The plaintiffs are U.S. residents who have interaction with the Prosecutor’s workplace as regulation professors and human rights advocates. (Word: one other case, introduced by a U.S. citizen who works within the Workplace of The Prosecutor (OTP) on the scenario in Darfur, was voluntarily dismissed on Could 13 after that citizen obtained 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 below IEEPA and violates their constitutional rights. They’re searching for preliminary injunctions. I anticipate we are going to see preliminary choices from the federal district courts pretty quickly – though Khan’s depart of absence could diminish the stress for pace, as no lively members of the OTP are presently designated individuals.

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

First, the plaintiffs argue that the President can not sanction their provision of authorized assist to the Prosecutor, as a result of this assist primarily takes the type of “info” and the IEEPA can’t be used to control the importation or exportation of data. Their arguments have appreciable advantage for my part, and likewise come at a superb second. A latest U.S. Supreme Courtroom determination has instructed courts to be much less deferential to companies in relation to statutory interpretation, and the tariff instances are opening the eyes of judges to the abusive prospects of IEEPA, particularly when learn broadly. This may additionally be a second to revisit extra usually the extent to which the availability of “providers” to designated individuals could be prohibited by way of 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 an identical case introduced towards the sooner govt 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 might draw the enforcement line between protected speech on the one hand and prohibited conduct on the opposite.

Third, it is very important acknowledge the restricted nature of those instances. Even when plaintiffs are totally profitable, their lawsuits won’t terminate EO 14,203. Profitable lawsuits would chop the scope of the order with respect to what counts as “funds, items, and providers” – a minimum of for U.S. residents (if finished on First Modification grounds) and presumably for everybody (if finished on IEEPA grounds). However the asset-blocking, the journey prohibitions, and important parts of the prohibition on offering “funds, items, and providers” 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, nonetheless, the story is a couple of change of diploma relatively than of sort. The second Trump administration has principally 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 best way 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. Actually, the Bush administration put much more work into opposing the ICC than has the Trump administration up to now. It takes rather 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’s, for instance, draft laws pending in Congress – however I doubt we are going to see a lot till the ICC itself takes additional steps corresponding to searching for arrest warrants for U.S. personnel primarily based on the scenario in Afghanistan or issuing additional arrest warrants towards Israeli leaders.

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

As to prices, the Trump administration disdains ideas of worldwide justice and the rules-based worldwide order. However even when it continues to take action, it might nonetheless come to comprehend that gentle energy is actual and that it’s going to lose leverage from attacking establishments which can be pricey to different and higher actors – simply because the Bush administration got here to comprehend how a lot political capital it was dropping by way of its antagonism to the ICC. We’re already seeing sturdy 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 ideas 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 towards the ICC occurred between Could and August of 2002, because the ICC was coming into into pressure, and but these months additionally noticed one of many highest intervals of ratification by different nations. I hope the months and years forward will present nations around the globe equally stepping as much as assist the ICC and worldwide legal justice extra usually. For the ICC is imperfect, however we’d like it – and the accountability that it was created to offer.