U.S. Sanctions on the International Criminal Court

Since the negotiation of the Rome Statute – the treaty establishing the International Criminal Court (ICC) – U.S. relations with the Court have zig-zagged between quiet support and open hostility. With President Trump’s return to office, we are back to confrontation.

In February, Trump issued an executive order stating that the ICC “has engaged in illegitimate and baseless actions targeting America and our close ally Israel.” The order imposed U.S. sanctions on the ICC prosecutor Karim Khan. That same order instructed the Secretary of State to make additional sanctions designations within 60 days. Although delayed, on June 5, the Secretary of State made these designations of four ICC judges – two of whom authorized the investigation into Afghanistan and two of whom approved the Netanyahu and Gallant arrest warrants. This post describes these developments and situates them within the broader context of U.S.-ICC relations.

A quarter-century of oscillation

The specifics of Trump’s confrontation with the ICC are new, but the themes are old. While the United States has never become a party to the Rome Statute, its relations with the ICC have varied over the last twenty-five years in ways that are tied closely to changes in U.S. presidential administrations.  As a refresher:

• The Clinton administration participated in the negotiation of the Rome Statute.President Clinton then signed the Rome Statute but stated that “I will not, and do not recommend that my successor submit the treaty to the Senate for advice and consent” until certain “fundamental concerns” are satisfied.
• The administration of George W. Bush energetically resisted the ICC. Among other actions, it “unsigned” the Rome Statute, negotiated various bilateral agreements aimed at minimizing the potential extradition of U.S. military personnel and citizens to the ICC, and signed into law the congressional bill that is colloquially known as “The Hague Invasion Act.” George W. Bush’s second term saw a slight thaw, as the Administration did not veto the Security Council’s 2005 referral of the situation in Darfur.
• The Obama administration interacted more positively with the ICC, including by attendance at the Kampala Review Conference “in the spirit of renewed engagement,” by supporting the Security Council’s 2011 referral of the situation in Libya, and by helping the ICC gain custody over certain suspects.
• The first Trump administration returned to a posture of hostility (spearheaded by John Bolton, one of the key architects of the Bush-era approach). After the ICC authorized an investigation into Afghanistan in the spring of 2020 that could encompass alleged war crimes committed by U.S. personnel, President Trump issued an executive order – discussed more below – imposing sanctions on certain ICC personnel.
• The Biden administration turned to re-renewed engagement with the ICC, revoking President Trump’s executive order despite its own concerns about the investigation in Afghanistan. President Biden spoke favorably of the 2023 arrest warrant against Vladimir Putin, while objecting to those issued against Benjamin Netanyahu and Yoav Gallant.

With the election of President Trump to his second term, it was predictable that the pendulum would swing again – and it did, swiftly.

President Trump’s executive orders

During his first few weeks in office, President Trump took two measures against the ICC. First, immediately after taking office on January 20, 2025, he issued an executive order that revoked many Biden-era orders, including the one that had repealed Trump’s 2020 executive order imposing ICC-focused sanctions (thus reviving this 2020 order). Second, on February 6, he issued another a new executive order – EO 14,203 – “Imposing Sanctions on the International Criminal Court.” Where the earlier executive order had emphasized concerns about the investigation of U.S. personnel in Afghanistan, the new order also appeared motivated by the arrest warrants for Netanyahu and Gallant. The scope of the new order is slightly broader than the revived order, so I will focus just on it.

The sanctions imposed by EO 14,203 are often described as against the ICC. The ICC is indeed the motivation for these sanctions, and one portion of the order expressly denies entry into the United States to non-citizens “determined by the Secretary of State to be employed by, or acting as an agent of, the ICC.”

But otherwise, the methodology of EO 14,203 is to focus on particular individuals. The order gives the U.S. Secretary of State the power to designate non-U.S. citizens who are supporting the ICC investigations into citizens or lawful residents of the United States or its allies (read: Israel). It also immediately listed Karim Khan, the ICC Prosecutor, as a designated person. EO 14,203 was issued before Khan took a leave of absence from the ICC following grave allegations of sexual misconduct.

Once persons are designated, three consequences kick in, unless exceptions are granted.

First, they are denied the ability to enter the United States, as are their spouses and children. Second, any U.S.-controlled assets of these designated persons are blocked.  Third – and this is the provision with the most dramatic reach – EO 14,203 prohibits anyone, including U.S. citizens, from providing “funds, goods, or services” to designated persons. These last two consequences come with high potential penalties for their violation.

In addition to immediately designating Khan, EO 14,203 instructed the Secretary of State to make additional designations within 60 days. It took about twice that long, but, on June 5, Marco Rubio made additional designations of four ICC judges, two of whom authorized the investigation into Afghanistan and two of whom approved the Netanyahu and Gallant arrest warrants.

Like the 2020 order, EO 14,203 relies for its legal authority on long-standing U.S. statutes that delegate considerable powers to the President. The primary basis is the International Emergency Economic Powers Act, known as IEEPA, which authorizes the President to declare a national emergency to deal with an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.” Once a national emergency is declared – as is done in the order – this unlocks various other powers, including the power to block assets and to prevent anyone from any transactions regarding the property of sanctioned persons. This comes with certain exceptions I will discuss later. Because of its broad reach and minimal procedural requirements, IEEPA has become a favorite tool of U.S. presidents. As Tim Meyer discussed earlier on this blog, in a historic first, President Trump is currently attempting to use IEEPA as domestic authority for most of his recent tariffs.

In addition to IEEPA, the portion of EO 14,203 that bans entry into the United States of designated persons, their spouses/children, and ICC personnel relies on a U.S. law that gives the President considerable discretionto deny non-citizens entry into the United States. This is the same law that President Trump invoked in 2017 and invoked again on June 4, 2025, to impose “travel bans” on the entry of categories of persons from various countries, many of them Muslim-majority.

Challenges to the executive orders in U.S. domestic courts

Multiple lawsuits have been brought this spring challenging the application of EO 14,203. The plaintiffs are U.S. citizens who engage with the Prosecutor’s office as law professors and human rights advocates. (Note: another case, brought by a U.S. citizen who works in the Office of The Prosecutor (OTP) on the situation in Darfur, was voluntarily dismissed on May 13 after that citizen received a license from the U.S. government authorizing him to continue his work). The plaintiffs argue that the order exceeds the scope of President Trump’s authority under IEEPA and violates their constitutional rights. They are seeking preliminary injunctions. I expect we will see initial decisions from the federal district courts fairly soon – although Khan’s leave of absence may diminish the pressure for speed, as no active members of the OTP are currently designated persons.

A thoughtful post by Nema Milaninia on the Lawfare blog covers the legal issues in these cases in detail, but I want to add three thoughts.

First, the plaintiffs argue that the President cannot sanction their provision of legal support to the Prosecutor, because this support primarily takes the form of “information” and the IEEPA cannot be used to regulate the importation or exportation of information. Their arguments have considerable merit in my view, and also come at an excellent moment. A recent U.S. Supreme Court decision has instructed courts to be less deferential to agencies when it comes to statutory interpretation, and the tariff cases are opening the eyes of judges to the abusive possibilities of IEEPA, especially when read broadly. This might also be a moment to revisit more generally the extent to which the provision of “services” to designated persons can be prohibited via IEEPA (whose authorizing text centers around transactions that relate to those persons’ “property”).

Second, the plaintiffs argue that EO 14,203 violates their First Amendment speech rights because it appears to prohibit their speech-based engagement with the OTP.  This argument succeeded with a district court in 2020 in a similar case brought against the earlier executive order. I think it is likely to succeed again. Indeed, the Trump administration seems to recognize that some engagement with the ICC by the plaintiffs would be protected speech – while being unhelpfully reluctant to specify where exactly it would draw the enforcement line between protected speech on the one hand and prohibited behavior on the other.

Third, it is important to recognize the limited nature of these cases. Even if plaintiffs are fully successful, their lawsuits will not terminate EO 14,203. Successful lawsuits would narrow the scope of the order with respect to what counts as “funds, goods, and services” – at least for U.S. citizens (if done on First Amendment grounds) and possibly for everyone (if done on IEEPA grounds). But the asset-blocking, the travel prohibitions, and significant portions of the prohibition on providing “funds, goods, and services” would remain in effect – as would the Trump administration’s underlying posture of hostility.

The bigger picture

On many matters, the actions of the second Trump administration are far more dramatic and appalling than those of the first Trump administration. With respect to the ICC, however, the story is about a change of degree rather than of kind. The second Trump administration has mostly recycled the approach from the first Trump administration, while doing so earlier in Trump’s term and at a modestly higher degree of magnitude. Indeed, we can see the 2020 attack on the ICC by the first Trump administration as a precursor to his broader 2025 attacks on lawyers, courts, and the rule of law.

In other ways, the continuity runs all the way back to the Bush administration, with its disdain for the ICC and for the without-fear-or-favor vision of international justice that the ICC embodies. In fact, the Bush administration put far more work into opposing the ICC than has the Trump administration to date. It takes much more effort for an administration to negotiate bilateral agreements and get a congressional law passed than it takes to invoke IEEPA. There may be more moves ahead from the Trump administration – there is, for example, draft legislation pending in Congress – but I doubt we will see much until the ICC itself takes further steps such as seeking arrest warrants for U.S. personnel based on the situation in Afghanistan or issuing further arrest warrants against Israeli leaders.

All this suggests, regrettably, that the pattern of open hostility towards the ICC during Republican administrations is likely to continue. Yet lessons from earlier times also suggest that these sanctions will be neither entirely costless to the Trump administration nor, I believe, entirely bad for the ICC.

As to costs, the Trump administration disdains principles of international justice and the rules-based international order. But even if it continues to do so, it may nonetheless come to realize that soft power is real and that it will lose leverage from attacking institutions that are dear to other and better actors – just as the Bush administration came to realize how much political capital it was losing through its antagonism to the ICC. We are already seeing strong statements from around the world in opposition to the recent sanctions on the judges.

As for effects on the ICC, the current sanctions have severe impacts for it and especially for the designated individuals – including honorable judges who are striving to uphold principles of international criminal justice. Yet the attacks by the Trump administration on the ICC may have the counter-intuitive effect of galvanizing support for the ICC and the cause of international criminal justice generally. The most dramatic actions by the Bush administration against the ICC occurred between May and August of 2002, as the ICC was entering into force, and yet those months also saw one of the highest periods of ratification by other countries. I hope the months and years ahead will show countries around the world similarly stepping up to support the ICC and international criminal justice more generally. For the ICC is imperfect, but we need it – and the accountability that it was created to provide.