A Court Under Siege: US Sanctions and the Future of the International Criminal Court

Introduction

On the 6th of February, 2025, President Trump issued Executive Order 14203, which authorises sanctions on the International Criminal Court (ICC), its staff, and any person who assists ICC proceedings targeting citizens of the US and US allies who have not consented to the jurisdiction of the court. This article will critically analyse the effects of the sanctions, the rationale given by the Trump Administration, and the proportionality of the sanctions. This article will ultimately argue that the sanctions evidence an unwillingness to respect the rule of law and to respect the protection of individuals from violations of human rights and international humanitarian law.

The Sanctions

The Executive Order came as a direct response to ICC arrest warrants on senior Israeli officials Netanyahu and Gallant in relation to alleged crimes committed in the Palestinian territories post-October 7th. This is not the first time the Trump administration has sanctioned the ICC. In 2020, President Trump issued Executive Order 13928, in response to the ICC investigation on alleged crimes committed by the US in Afghanistan. As a result, sanctions were imposed on ICC prosecutors Bensouda and Mochochoko until President Biden revoked the Executive Order in 2021. 

The current sanctions exceed the 2020 ones, both in terms of scale and the types of people sanctioned. In addition to ICC prosecutors, several ICC judges have also been sanctioned, disregarding their impartiality in relation to the cases they hear. Persons not directly related to the ICC have also been sanctioned, including UN Special Rapporteur Francesca Albanese and three NGOs that have advocated for Palestinian human rights.

The effects of these sanctions are numerous and threaten the very existence of the ICC. In relation to those sanctioned, the Executive Order allows for the freezing of their assets in the US and travel restrictions for them and their immediate family. The Order also allows for sanctions for those who ‘materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to’ the ICC. 

As Burke-White comments, in relation to the same provision included in the 2020 Executive Order, this provision is overly broad and could encompass ‘a victim or witness who provided information’ to the ICC or ‘an academic whose scholarship the Court relied upon’. The scale and potential reach of the sanctions threaten the workings of the ICC, from administrative tasks to investigations, and puts its continued existence at risk. For instance, due to the risk of sanctions, the ICC has recently started shifting away from the use of products from the US-based Microsoft. 

The International Criminal Court (Image Credits: Tony Webster, Creative Commons)

Rationale

Moving onto the rationale for the Executive Order, one of the main reasons why sanctions have been posed is because the US rejects the jurisdiction of the ICC. As neither the US or Israel are signatories to the Rome Statute of the ICC, the Trump Administration contends that the exercise of jurisdiction would constitute an ‘[infringement] upon the sovereignty’ of the US and its allies.However, as a matter of law, the ICC decidedly has jurisdiction due to the fact that the crimes were committed in the territory of a party to the Rome Statute: Afghanistan in the case of alleged US crimes and Palestine in the case of alleged Israeli crimes. The authority for this is Article 12 of the Rome Statute and cases such as Bangladesh/Myanmar.

Another questionable rationale for the imposition of sanctions is that the ICC investigations into alleged US and Israeli crimes amounts to a ‘national emergency’. As Burke-White points out, the ICC is ‘[a]n underfunded Court with relatively little to show for two decades of work’. To say that their investigation will be a national emergency that ‘undermines the critical national security and foreign policy’ of the US is absurd. In arguing that the ICC investigation is a national emergency, the Trump administration admits ‘the power of international law’ and suggests ‘that the United States has something to hide’.

Proportionality

​Apart from the questionable rationale of the sanctions, it is submitted that they are out of proportion, considering the other alternatives that could have been chosen. For instance, the US could have challenged jurisdiction and the merits of the prosecutor’s claims of crimes in Afghanistan at the ICC, as Israel has done. They could have engaged in diplomacy and cooperated with the ICC, as the previous Obama and Biden Administrations have done. By choosing to impose comprehensive sanctions, the Trump administration paralyses the court and impedes on other ongoing investigations of the ICC in places such as Ukraine, Sudan, and the DRC. In their unwillingness for them and their allies to be judged by the ICC, the US has made it harder for those in the 125 state parties of the Rome Charter to seek justice in a legitimate, treaty-based court. As such, the sanctions are decidedly out of proportion.

Conclusion

​In conclusion, the US sanctions imposed on the ICC have the potential to cause severe detrimental effects to the court’s workings. The exaggerated weight of a designated ‘national emergency’ makes the rationale questionable, while the disproportionality of the measure indicates that the US is striking at the workings of the court, to the detriment of the parties to the Rome Statute. Though the best way forward would be to revoke the sanctions and engage in dialogue with the ICC, the Trump Administration currently shows no signs of doing so. As such, it is unclear whether this is a challenge the ICC can weather. If the doors to the court were to close, the international community will be taking a large step backwards in ensuring the accountability of war criminals and the protection of human rights and international humanitarian law.