Imagine a Western head of government sanctioning the attorney general and judges of the supreme court because they have brought criminal proceedings against his party colleagues. He has their assets seized, their bank accounts frozen, and their freedom of movement restricted. He prohibits national companies from doing business with the sanctioned individuals, including their family members. A fundamental attack on the separation of powers and the work of the judiciary? Yes! Unimaginable? Unfortunately, no!

This is precisely what the Trump administration has now done with the leadership of the Office of the Prosecutor (OTP) and six judges of the International Criminal Court (ICC). The sanctions were imposed by Presidential Executive Order 14203 (“EO”) on February 6, 2025.¹⁾ It was initially limited to (then) Chief Prosecutor Karim Khan (currently on leave), but was expanded by Secretary of State Marco Rubio²⁾ to four judges³⁾ on June 5, 2025, and to the two deputy prosecutors⁴⁾ and two other judges⁵⁾ on August 20, 2025. Furthermore, there is the threat of institutional sanctions against the ICC, which, although so far unsuccessful at the legislative level in the US Senate at the beginning of the year (“Illegitimate Court Counteraction Act”),⁶⁾ can be taken up again by Congress at any time or ordered by a new EO. The ICC, too, therefore needs a kind of “Judicial Resilience Project” against the threat of right-wing populism,⁷⁾ but at the supranational level.

Justification for the sanctions

The sanctions are justified on the grounds that the ICC, through the aforementioned individuals, has initiated investigations “without a legitimate basis” against US personnel and “certain of its allies“⁸⁾ – so-called “protected persons”⁹⁾ – and that this “malign conduct” by this “bankrupt institution” violates the sovereignty of the US and undermines its national security. Specifically, the sanctioned individuals are allegedly “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality” (Section 1(a)(ii)(A) EO 14203). However, apart from Israel, no US allies are mentioned, and in fact, at the time the EO was issued, the only proceedings still ongoing were those in the “Situation in the State of Palestine”, which on November 21, 2024, led to the issuance of (unpublished) arrest warrants against Israeli Prime Minister Netanyahu and then-Defense Minister Gallant (as well as three Hamas leaders who have since been killed).

In contrast, Prosecutor Khan had already limited the investigations in the Afghanistan proceedings to the Taliban¹⁰⁾ on September 27, 2021, and effectively discontinued (“deprioritised”) them with regard to US citizens. This means that there are currently no investigations whatsoever against US citizens. The sanctioning of the aforementioned individuals can thus, apart from the Trump administration’s ideological hostility toward the ICC as a representative of international (criminal) law accountability, only be explained by the Israel/Palestine/Gaza investigations. This is further evidenced by the (additional) sanctioning of the UN Special Rapporteur on Palestine, Francesca Albanese, by Secretary of State Rubio on July 9, 2025.

Only Prosecutor Khan (and his two deputies since his leave) and Judges Alapini Gansou, Guillou, and Hohler (as members of the Pre-Trial Chamber that issued the above-mentioned arrest warrants) have been involved in the Israel/Palestine investigations to date. The other sanctioned judges (Balungi Bossa, Ibáñez Carranza, and Prost) authorized, as part of the Appeals Chamber – alongside the now-retired (and unsanctioned) judges Hofmánski and Morrison –, the Afghanistan investigation on March 5, 2020. This makes the US government’s sanctions strategy clear: only judges who are still active and those who, as part of the Appeals Chamber, authorized the original Afghanistan investigations (including US citizens in addition to the Taliban, among others) should be sanctioned, but not all judges involved in the Afghanistan proceedings (such as Italian judge Aitala, who played a key role in the PreTrial Chamber II’s decision on April 12, 2019 declining to authorize the investigation).

The US government is therefore solely concerned with protecting its own nationals and those of allied States (Israel), not with ICC proceedings in general. As long as these are directed against adversaries or enemies of the US (Taliban) or Israel (Hamas), the US government has no problem with the ICC’s alleged “overreach.” But when the law is to be enforced against the US or its friends, the court itself becomes the enemy. These double standards are not new; they can also be observed in the so-called war on drugs: while the Trump administration extrajudicially executes alleged “narco-terrorists” in the Caribbean (for evidence of the clear violation of international law, see here, here, and also here), it simultaneously pardons the former president of Honduras, Juan Orlando Hernández, who had previously been sentenced to 45 years in prison by an US court in a fair trial for, inter alia, drug trafficking.

Sanctions with grave consequences

A designated person and their family members are prohibited from traveling to the United States. All of their property and property interests located in the United States, or in the possession or control of U.S. persons, are blocked and must be reported to the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. In addition, all natural or legal persons that are directly or indirectly owned, individually or in the aggregate, 50 percent or more by one or more blocked persons are themselves blocked. All transactions by U.S. persons, or within (or transiting) the United States, that involve property or property interests of designated or otherwise blocked persons are prohibited, unless authorized by a general or specific OFAC license or covered by an applicable exemption. These prohibitions include the provision or supply of funds, goods, or services by, to, or for the benefit of any sanctioned person and the receipt of any contribution or provision of funds, goods, or services from any such person (see also Galbraith and Hovell).

However, these are only the primary effects of the sanctions, also known as primary sanctions. Secondary sanctions can be even more serious. They extend beyond US territory and US citizens and companies, i.e., they have an extraterritorial and global effect. Sometimes they are also a consequence of overcompliance, which at the same time demonstrates the chilling effect of the primary sanctions. By way of example, a European bank based in the EU, which is not itself directly subject to the sanctions, terminates the account of a sanctioned person because it fears negative consequences for its U.S. business. Two of the six judges involved have commented publicly on the concrete effects of the sanctions: the French judge Guillou (here) and the Canadian judge Prost (here and here). Beyond the ban on entry into the US, they report that from one day to the next they could no longer receive goods, services, or funds from US companies (e.g., Amazon, Airbnb, PayPal, Visa, Master Card), along with indirect (secondary) effects on transactions with European companies as well, such as their domestic bank or a travel company. Similar accounts were given by UN Special Rapporteur Albanese during a hearing in the Italian Senate; at the same time, the manager of her Italian “Banca Etica” (!) regretted that he had to close her account and asked politicians to take countermeasures.

On the EU’s (possible) countermeasures

In order to avoid such (extraterritorial) effects, the EU previously issued – in connection with US sanctions against Cuba and Iran – a so-called blocking regulation (Regulation 2271/96 of November 29, 1996), which prohibits EU “persons” (natural and legal persons, Art. 11) from complying with such sanctions. In a landmark decision of December 21, 2021 (“Bank Melli Iran v. Telekom Deutschland GmbH”)¹¹⁾, the European Court of Justice (ECJ, Grand Chamber) first confirmed, in accordance with the recitals of the regulation, that the extraterritorial effect of US sanctions “harm[s] the interests of the European Union, as well as those of the persons referred to, in violating international law and compromising the realisation of the European Union’s objectives [in contributing to the development of world trade]” (para. 37). The prohibition (pursuant to Art. 5 of Regulation 2271/96) on complying with such sanctions also applies, “in the absence of an order directing compliance issued by the administrative or judicial authorities of the third countries which adopted those laws.” (para. 42-51). An EU company may terminate contracts with sanctioned persons—even without giving reasons—but not solely on the basis of US sanctions; it must adduce and demonstrate other reasons, e.g., of an economic nature (para. 52-68).¹²⁾ The resulting conflict with the fundamental right of entrepreneurial freedom (Art. 16 EU Charter of Fundamental Rights) must ultimately be resolved through a proportionality assessment, balancing the pursuit of the aforementioned Union objectives against the economic interests of the undertaking concerned. Those interests must give way insofar as the invalidity of a termination of a contract with a sanctioned person—as a consequence of the EU-mandated non-compliance with extraterritorial sanctions—has no “disproportionate effects” on the company concerned (para. 69-95).¹³⁾

Such a blocking regulation was also discussed in response to US sanctions against the ICC (see European Parliament here and here). Another EU countermeasure that could be considered in this context is the instrument against economic coercion (Regulation (EU) 2023/2675) adopted in 2023. It dates back to Chinese coercive measures against Lithuania over its Taiwan policy in 2021. Article 2(1) of the Regulation defines economic coercion as “third-country measure affecting trade or investment in order to prevent or obtain the cessation, modification or adoption of a particular act by the Union or a Member State, thereby interfering in the legitimate sovereign choices of the Union or a Member State.” This instrument is therefore primarily a response to economic coercive measures (such as the tariffs imposed by the Trump administration). However, if one assumes that measures of this kind (such as the ICC sanctions) also interfere with the EU’s sovereign foreign policy (in this case, its unconditional support for the ICC),¹⁴⁾the activation of Regulation 2023/2675 could certainly be justified. Otherwise, the EU could also adopt a more tailor-made legal act.

So far, the EU has not produced any such formal response—not only because of the legal (and economic) problems outlined above, but (probably) also because it fears that the US government could then sanction the Court as a whole. On the one hand, this possibility, as noted at the outset, must be taken seriously; if it were to materialize, the very existence of the Court would be at stake. On the other hand, however, verbal protests and declarations of solidarity¹⁵⁾ alone cannot mitigate the effects of the sanctions. Even the commendable and important efforts of the ICC Registry to strengthen the resilience, adaptability, and sustainability of the ICC,¹⁶⁾ including through the use of national circumvention strategies,¹⁷⁾ as well as the domestic dialogue of certain States Parties with relevant national economic actors cannot replace the effects of a formal EU response (in particular through a blocking regulation).

Attack on the Law

It is an irony of history that the US, the country that was largely responsible for the Nuremberg trial of the major war criminals, now wants to destroy the very court that would not exist without Nuremberg. Unlike in the Caribbean, the Trump administration’s sanctions do not kill physically, but they do destroy the civil existence of the ICC’s representatives sanctioned. The sanctions amount to a form of civil death because those sanctioned can no longer participate in normal business and social life. Independent prosecutors and judges are being equated with terrorists, organized criminals, and corrupt dictators. In other words, they are being punished for doing their job—a “job” for which they were elected and appointed and for which they enjoy special protection (Art. 48(2) ICC Statute).¹⁸⁾ At the same time, the sanctions and the accompanying reprisals and threats against members of the ICC and the Court as a whole – as well as the Russian prosecution and conviction (in absentia) of ICC leadership personnel – can be classified as crimes against the administration of justice within the meaning of Art. 70 (1) (d), (e) ICC Statute (see also the ASP Resolution of December 5, 2025, para. 4; also Hovell).

The US sanctions policy thus proves to be not only an attack on the ICC, but an attack on the law itself. This requires an institutional response, more than just verbal protest. Words must be followed by concrete action. An EU legal act in the form of a blocking regulation or a more tailored instrument (possibly based on the Regulation against economic coercion) could be such an action (see also Hovell [with further measures also within the US] and Iverson). It would not only help like-minded EU actors to maintain their contractual relations with the ICC, but would also send a strong, not merely symbolic signal of European determination beyond the EU and Europe. It would represent a first step towards achieving European sovereignty, long overdue in this area as well. At the same time, the ICC should – as a preventive measure with a view to possible institutional sanctions – make itself independent of US companies (e.g., Microsoft Office).

For a brief audio version (in German) see here.