What happened? As part of his omnibus day one executive order (E.O.) called “Initial Recissions of Harmful Executive Orders and Actions,” President Donald Trump has revoked former President Joe Biden’s April 1, 2021, E.O. that terminated controversial sanctions against the International Criminal Court (ICC). Biden’s E.O. (14022) had made clear that “the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”
Prior to Biden’s April 2021 E.O., Trump-era sanctions that applied to “any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government” remained in effect, alienating the United States from its allies and partners and making it more difficult for the United States to assert its interests before the ICC. (See Amb. Todd Buchwald’s May 2024 analysis following the ICC’s issuance of arrest warrants for Israeli and Hamas officials, for an explanation of why sanctions are counterproductive to the U.S.’ stated interests in this context).
What is the effect? Trump’s actions, thus far, are largely symbolic of a policy turn away from the ICC as a venue for international criminal accountability for war crimes, crimes against humanity, and genocide.
President Biden’s 2021 E.O. terminated the “national emergency” Trump had declared in order to levy sanctions against the ICC in the first place. Trump’s day one E.O. revoking Biden’s revocation of that national emergency, though, doesn’t spring the prior ICC sanctions back to life.
Instead, Trump would have to declare a new “national emergency” justifying the use of financial sanctions against an independent court. The first time he did this, Trump relied on the ICC’s open investigation into alleged U.S. torture and other war crimes in Afghanistan as his justification for sanctions (a novel and, in our view, a gross misuse of U.S. financial power). Now, however, the ICC has long since turned its attention away from that investigation, having announced in 2021 that it would focus on Taliban and ISIS-K actions within Afghanistan, and essentially dropping the investigation into U.S. torture during the war there. Without an active investigation into U.S. actions, it is harder for Trump to make the case that the Court’s actions necessitate the declaration of a “national emergency” for the United States.
What happens next? That said, the Trump administration may well attempt to jump through the hoops needed to declare a new national emergency and re-impose sanctions on the ICC and its personnel. He may try to rely on the Court’s indictments of purported U.S. allies (Israel’s Benjamin Netanyahu and Yoav Gallant) in justifying the action.
Those actions would surely be challenged in litigation. And even if upheld, they could range from essentially symbolic to extraordinarily damaging sanctions that cripple the ability of the ICC to work even on cases for which there has been bipartisan U.S. congressional support, like the investigation into the situation in Ukraine.
Sanctions Regardless? Even if President Trump does not move forward with declaring another national emergency, the ICC continues to be threatened by legislation that passed in the House (240- 143) last week with the Illegitimate Court Counteraction Act. The Act would sanction any foreigner who aids, materially assists, sponsors, or provides “financial, material, or technological support for, or goods or services to or in support of” ICC efforts to “investigate, arrest, detain or prosecute” any American or foreigner of a “U.S. ally” that has not consented to the ICC’s jurisdiction or has not joined the Court.
Such sanctions, which extend to asset freezes and visa revocations for the immediate family members of those sanctioned, sweep much more broadly than those issued under the Executive Order during the first Trump Administration. Indeed, the provisions related to financial, material, and technological support mean that businesses who provide software or banking services to the Court are implicated. Americans also risk being caught up in the legislation, since anyone who supports work being done by someone who is sanctioned can incur enforcement penalties of up to $250,000 in civil fines and up to 20 years of imprisonment.