US Sanctions on the ICC: Legality and Implications

Abstract

In 2020, the Trump administration took the unprecedented step of sanctioning senior officials of the International Criminal Court (ICC). Although briefly lifted under President Biden, these sanctions returned in 2025, this time in response to arrest warrants against Israeli leaders. Unlike traditional sanctions targeting states, these measures were aimed at an international organisation and its officials, raising new questions about legality under international law. This blog explores why such sanctions lack a solid legal basis, how they undermine judicial independence and the ICC’s immunities, and what they mean for the future of international justice. More than a legal dispute, the sanctions risk setting a precedent where powerful states can intimidate or punish courts that hold them accountable, threatening both the credibility of the ICC and the multilateral order it represents.

Introduction

In June 2020, the Trump administration took the unprecedented step of sanctioning senior officials of the International Criminal Court (ICC), including Prosecutor Fatou Bensouda and Phakiso Mochochoko, head of the Jurisdiction, Complementarity and Cooperation Division. Adopted through Executive Order 13928, these measures authorised asset freezes and travel restrictions in response to the Court’s investigation into alleged war crimes committed by US personnel in Afghanistan.

As a non-party to the Rome Statute, the United States rejected the ICC’s jurisdiction over its nationals and characterised the investigation as a threat to its sovereignty and national security. The sanctions represented a direct challenge to the independence of the Court and drew widespread condemnation from allies and international organisations.

The measures were lifted in April 2021, when President Biden issued Executive Order 14022, terminating the national emergency declared by his predecessor. While maintaining objections to the ICC’s exercise of jurisdiction over non-States Parties such as the United States and Israel, the Biden administration considered sanctions an inappropriate and ineffective response, signalling a shift back toward diplomatic engagement with international institutions.

In February 2025, however, following his return to office, Trump reinstated and expanded sanctions through Executive Order 14203, this time in reaction to the Court’s arrest warrants against Israeli leaders. These developments raise fundamental questions about the legality of such measures under international law and their broader implications for the international legal order.

The Problem of Legality

Unilateral sanctions have long been a feature of international relations. What makes the case of US sanctions against the ICC unique, however, is that they are directed not at another state but at an international organisation and its officials. This raises novel legal questions about the scope of unilateral coercive measures under international law.

Most international institutions were established in the aftermath of global conflicts, their very raison d’être being to prevent the recurrence of such crises. The ICC, for example, was created out of the post-Cold War consensus that those responsible for the most serious crimes of concern to the international community (genocide, crimes against humanity, war crimes, and the crime of aggression) should not remain beyond accountability. These crimes have been characterised as engaging obligations erga omnes and, at least in part, rules of jus cogens. The Court’s independence from states is therefore not merely a legal safeguard but a legitimacy requirement. If subject to manipulation by powerful states, the ICC would be unable to fulfil its mandate of preventing abuses and ensuring accountability, thereby undermining international peace and justice. A core principle underpinning such institutions is thus the non-interference of states in their operations.

Against this background, the legality of US sanctions against ICC officials is highly questionable under international law. While unilateral sanctions may be permissible under domestic legal orders, they generally lack a firm basis in international law unless authorised by the UN Security Council under Article 41 of the UN Charter. This is particularly true where sanctions target international organisations, which enjoy a distinct legal personality and immunities necessary for their functioning.

There have been attempts, however, to articulate a more nuanced framework for assessing the responsibility of international organisations and the permissibility of countermeasures. Barbar has observed a gradual move away from absolute immunity for international organisations, in part driven by a greater emphasis on human rights and accountability. This shift is reflected in the work of the International Law Commission (ILC) on the Articles on the Responsibility of International Organisations (ARIO). While ARIO recognises in principle that countermeasures may be directed against international organisations, it sets stringent limitations on their use.

As Hernández explains, countermeasures against an international organisation are particularly complex because the threshold for their legality is high. ARIO provides two essential conditions: (1) countermeasures must not violate the rules of the organisation itself; and (2) member states must first exhaust other appropriate means of inducing compliance. This effectively rules out the possibility of countermeasures where the founding instrument of the organisation does not contemplate them. To date, no international organisation has included in its constituent treaty a rule authorising countermeasures against itself, making this avenue legally impossible. For the US, the situation is even more untenable: as a non-party to the Rome Statute, it cannot rely on membership-based claims or countermeasures within the ICC framework.

Furthermore, by targeting ICC officials personally, the sanctions arguably breached the immunities provided under Article 48 of the Rome Statute and the Agreement on Privileges and Immunities of the ICC (APIC, 2004). These provisions guarantee that Court officials, including judges and prosecutors, enjoy privileges and immunities comparable to those of diplomatic envoys, enabling them to perform their functions without external pressure. Even though the US is not a party to these treaties, the immunities of international officials are widely recognised in international practice as essential for the proper functioning of international organisations. As Reinisch has emphasised, without such protections, organisations cannot operate independently or impartially.

The sanctions also raise questions of extraterritoriality. By imposing asset freezes and visa restrictions on non-US nationals acting under an international mandate, the US sought to project its domestic legal order beyond its borders. This extraterritorial application of unilateral sanctions is controversial in international law, as it interferes with the sovereign prerogatives of other states that are bound to protect the officials concerned under the Rome Statute and APIC. It also risks undermining the principle of sovereign equality by privileging the interests of powerful states over the collective commitments of the international community.

Taken together, these considerations demonstrate that the US sanctions against the ICC lack a sound legal foundation in international law. They conflict with principles of non-interference, judicial independence, and the immunities of international officials, while also raising concerns about the legitimacy of unilateral extraterritorial measures.

Implications for International Politics

The sanctions carried significant political implications. First, they risked creating a chilling effect on the ICC’s investigations, undermining the Court’s credibility and independence. Second, they set a dangerous precedent, signalling that powerful states could bypass or punish international judicial bodies that threaten their interests. More broadly, they challenged the multilateral consensus around international criminal accountability, contributing to the erosion of global cooperation in addressing atrocity crimes.

Conclusion

The Trump administration’s sanctions against ICC officials represented a novel and controversial challenge to international law. They lacked clear legal basis, conflicted with the principles of non-interference and judicial independence, and undermined the immunities of international officials. The implications extended far beyond the US-ICC relationship, striking at the heart of the international legal order and raising concerns about the future of multilateralism and accountability. Defending the independence of institutions like the ICC remains essential to maintaining the integrity of international justice.