U.S. Sanctions on the ICC: Are They Legal Under International Law?
- Edmarverson A. Santos
- 1 hour ago
- 21 min read
Introduction
The latest U.S. sanctions on the ICC were announced on 18 August 2026, when the U.S. Treasury Department designated Tomoko Akane, President and Judge of the International Criminal Court, and Abdoulaye Seye, a Senior Trial Lawyer at the Court. Both were added to the Specially Designated Nationals and Blocked Persons List under the sanctions regime established by Executive Order 14203. The ICC itself was not designated as a blocked entity (OFAC, 2026; ICC, 2026; Assembly of States Parties, 2026).
Executive Order 14203, issued on 6 February 2025, provides the foundation for the current sanctions program. It targets foreign persons connected with specified ICC efforts involving individuals defined by the order as “protected persons,” while also providing for entry restrictions. The measures form part of a broader U.S. policy opposing ICC proceedings against American personnel and certain nationals or residents of allied states where Washington considers the Court to be acting without the relevant state’s consent (United States, 2025).
The dispute predates the present sanctions campaign. The United States is not a State Party to the Rome Statute and has long rejected the proposition that the ICC may legitimately prosecute U.S. nationals without American consent. Similar objections have been advanced regarding Israeli nationals because Israel is also outside the Rome Statute system. Nonparty status, however, does not by itself resolve the question of the Court’s jurisdiction.
Article 12 of the Rome Statute recognizes territoriality and nationality as alternative jurisdictional links in the situations governed by that provision. As a result, the nationality of an accused person is not always decisive: alleged conduct occurring on territory subject to ICC jurisdiction may provide a separate basis for the Court to act. This distinction lies at the center of the disagreement between Washington and the ICC over nationals of nonparty states (ICC, 1998).
The jurisdictional dispute must also be kept separate from the legality of the sanctions imposed in response to it. Executive Order 14203 invokes U.S. domestic authorities for economic and immigration measures, but domestic authority does not determine compliance with international law. Nor does the unilateral character of a sanction make it inherently unlawful. International legality depends on whether a particular measure breaches an international obligation binding on the United States.
Sanctions directed at judges, prosecutors, Court personnel, or persons supporting ICC activities consequently raise questions beyond the validity of ICC jurisdiction itself. Depending on the measure and the person affected, relevant international-law issues may include privileges and immunities, human rights obligations, the independent functioning of international institutions, and interference with activities undertaken by Rome Statute States Parties. The legality of the U.S. sanctions on the ICC cannot be assessed without identifying which of those rules actually bind the United States and whether the sanctions fall within their scope.
1. U.S. Sanctions on the ICC: Scope and Operation
The current sanctions program does not designate or block the International Criminal Court itself as an entity. Executive Order 14203 instead authorizes measures against specified foreign persons connected with ICC action involving individuals whom the order defines as “protected persons.” OFAC has implemented that authority through individual designations under the ICC-related sanctions program (Executive Order 14203, 2025).
Those designated have not all occupied the same institutional position. The sanctions have reached ICC judges, prosecutors, and other Court personnel, but they have also been applied to actors outside the Court. Francesca Albanese is a UN Special Rapporteur, while Al-Haq, Al Mezan Center for Human Rights, and the Palestinian Centre for Human Rights are Palestinian organizations rather than ICC bodies.
Designation primarily blocks property and interests in property subject to U.S. jurisdiction and generally prohibits U.S. persons from dealing with blocked persons without authorization. Executive Order 14203 separately provides for restrictions on entry into the United States. International banks and service providers may also limit dealings because of their exposure to the U.S. financial system, but these commercial consequences should not be confused with the formal jurisdictional scope of OFAC's prohibitions.
1.1 Executive Order 14203 and OFAC
President Donald Trump issued Executive Order 14203 on 6 February 2025. For its economic restrictions, the order principally invokes the International Emergency Economic Powers Act and the National Emergencies Act. Section 212(f) of the Immigration and Nationality Act supports the separate entry restrictions, while 3 U.S.C. § 301 concerns presidential delegation (Executive Order 14203, 2025).
The American Service-Members' Protection Act of 2002 occupies a different place in the framework. ASPA restricts specified forms of U.S. cooperation with the ICC and reflects longstanding congressional concern about proceedings involving American and certain allied personnel. EO 14203 invokes that legislation as part of its statutory and policy background, but IEEPA supplies the principal authority for the asset-blocking mechanism.
The order permits designation of foreign persons who directly participate in specified ICC efforts to investigate, arrest, detain, or prosecute protected persons. It also reaches specified forms of material assistance, sponsorship, financial or technological support, and the provision of goods or services connected with targeted conduct or blocked persons. “Protected persons” include U.S. persons and, under defined conditions, citizens or lawful residents of qualifying U.S. allies (Executive Order 14203, 2025).
OFAC implemented the regime through the International Criminal Court-Related Sanctions Regulations, codified at 31 C.F.R. Part 528 in July 2025. The executive order establishes the presidential framework; Part 528 administers it within the Treasury sanctions system; and subsequent OFAC notices, licenses, removals, and designations determine how the regime applies to particular persons (OFAC, 2025).
1.2 The August 2026 Designations
On 18 August 2026, OFAC designated Tomoko Akane and Abdoulaye Seye under Executive Order 14203. Akane is President and Judge of the ICC. Seye is a Senior Trial Lawyer in the Office of the Prosecutor and should not be described as an ICC judge merely because he has also been a candidate for judicial office (OFAC, 2026a; Assembly of States Parties, 2026).
The United States sanctioned Akane and Seye individually; the ICC itself was not placed on the SDN List. OFAC also issued General License 12, permitting transactions ordinarily necessary to wind down dealings involving them until 12:01 a.m. EDT on 17 September 2026, subject to the license's conditions (OFAC, 2026b).
Their designation followed several earlier rounds. Karim Khan, then ICC Prosecutor, was sanctioned in February 2025. Four judges were designated in June; two judges and two Deputy Prosecutors followed in August. Later measures reached three Palestinian organizations and two additional ICC judges, while Francesca Albanese was separately designated despite not being an ICC official.
The August action also followed a broader State Department campaign announced in July 2026. Washington described that initiative as a response to what it regarded as a threat by the ICC to U.S. sovereignty. That is the administration's characterization of the Court and its jurisdiction, not an independent legal conclusion about the ICC's authority.
2. Why the United States Rejects ICC Jurisdiction
The present confrontation predates both the Gaza proceedings and Executive Order 14203. The United States participated in the Rome negotiations and voted against the Statute adopted in 1998. President Bill Clinton nevertheless authorized U.S. signature on 31 December 2000 while recommending that the treaty not be submitted for Senate consent until U.S. concerns about the Court had been addressed.
In May 2002, the Bush administration formally notified the UN Secretary-General that the United States did not intend to become a party to the Rome Statute. Congress also enacted the American Service-Members' Protection Act that year, restricting specified forms of cooperation with the Court. The United States has never ratified the Statute and remains outside its system of State-Party obligations.
The Afghanistan investigation brought the jurisdictional dispute into direct conflict with the Court. In March 2020, the ICC Appeals Chamber authorized an investigation into alleged crimes connected with Afghanistan, potentially including conduct by U.S. personnel. President Trump responded with Executive Order 13928, and OFAC later designated then-Prosecutor Fatou Bensouda and senior Office of the Prosecutor official Phakiso Mochochoko.
President Joe Biden revoked that sanctions regime in April 2021 through Executive Order 14022. His administration nevertheless maintained the U.S. objection to ICC jurisdiction over nationals of nonparty states absent their government's consent or another accepted jurisdictional basis. The disagreement over jurisdiction thus survived the change in policy toward sanctions.
Proceedings concerning Palestine later intensified the dispute. By majority, Pre-Trial Chamber I held in February 2021 that the Court's territorial jurisdiction for the Situation in the State of Palestine extended to Gaza and the West Bank, including East Jerusalem. Judge Péter Kovács issued a partly dissenting opinion, illustrating that important aspects of the jurisdictional reasoning were contested within the Chamber itself (ICC, 2021).
Pre-Trial Chamber I issued arrest warrants for Benjamin Netanyahu and Yoav Gallant on 21 November 2024 in relation to alleged war crimes and crimes against humanity. Those warrants are judicial orders based on allegations and are not convictions. In April 2025, the Appeals Chamber held that Israel's Article 19 jurisdictional challenge had been wrongly rejected as premature and remanded the issue for substantive consideration; it did not suspend the warrants. Israel's jurisdictional challenges remained in litigation through 2025–2026.
This procedural history is important because the 2021 situation-level territorial ruling and Israel's later case-specific Article 19 challenge are not the same decision. U.S. policy nevertheless treats the broader exercise of ICC jurisdiction over Israeli and American nationals without nationality-state consent as illegitimate. That objection is the central jurisdictional premise behind the present sanctions regime.
3. ICC Jurisdiction Over Nationals of Nonparty States
The United States is not bound by the Rome Statute as a State Party. It has not accepted the treaty's ordinary cooperation obligations, and its nonparty status cannot simply be disregarded. That proposition, however, does not establish that every U.S. national is beyond the ICC's criminal jurisdiction.
Treaty obligations imposed on a state and criminal jurisdiction exercised over an individual are different legal questions. A state may remain outside a treaty while one of its nationals becomes subject to criminal jurisdiction because of where alleged conduct occurred. The dispute over the ICC turns largely on whether the Rome Statute validly permits that result.
For war crimes, crimes against humanity, and genocide in situations governed by Article 12, the Statute recognizes territory and nationality as alternative jurisdictional links. The U.S. position gives greater weight to nationality-state consent; the ICC framework permits territorial jurisdiction even where the suspect's state of nationality is not a party.
3.1 Territorial Jurisdiction Under Article 12
Article 12(2) provides that, in situations triggered under Article 13(a) or 13(c), the Court may exercise jurisdiction where the relevant state of territory is a State Party or has accepted the Court's jurisdiction. Alternatively, jurisdiction may rest on the nationality of the accused where the nationality state satisfies the relevant condition (Rome Statute, 1998, arts 12–13).
The two links are not cumulative. Where territorial jurisdiction exists, Article 12 does not additionally require the accused to be a national of a State Party. Nonparty nationality alone consequently does not eliminate territorial jurisdiction under the ordinary Article 12 framework.
One academic explanation is that a state possessing territorial criminal jurisdiction may participate in a treaty-based court through which that jurisdiction is exercised. This “delegation” theory offers a rationale for jurisdiction over nonparty nationals, but it is an interpretive justification rather than uncontested treaty law. Its adequacy and limits remain subjects of scholarly debate.
Article 12 should not be generalized beyond its proper scope. Security Council referrals under Article 13(b) operate through a different jurisdictional route, while the crime of aggression is subject to special restrictions. In particular, Article 15 bis(5) limits jurisdiction over aggression involving nonparty states in circumstances governed by Article 15 bis. The territorial analysis relevant to Palestine and Afghanistan should not be presented as a universal rule for every ICC crime or trigger mechanism.
3.2 Third-State Consent and Treaty Obligations
The U.S. consent argument draws support from the rule pacta tertiis nec nocent nec prosunt. Article 34 of the Vienna Convention on the Law of Treaties states that a treaty does not create obligations or rights for a third state without its consent (VCLT, 1969, art. 34).
The United States is not a party to the Vienna Convention, so Article 34 does not bind Washington simply as a treaty provision. The rule it expresses, however, is generally recognized as part of customary international law. The Rome Statute accordingly cannot make the United States a treaty party or impose the ordinary obligations of States Parties merely because other states have accepted the Court.
That conclusion is particularly important for cooperation. The United States is not generally obliged on a Rome Statute treaty basis to execute ICC arrest requests, surrender suspects, provide evidence, or perform other cooperation duties imposed on States Parties. Nonmembership has substantial legal consequences.
The harder question is whether prosecuting an individual national of a nonparty state itself imposes an obligation on that state. Territorial criminal jurisdiction over an individual does not necessarily create treaty duties for the person's state of nationality. Article 12 is structured on that distinction: territorial jurisdiction may exist even though the nationality state has not accepted the Statute.
The U.S. argument is strongest when it insists that Washington cannot be treated as a Rome Statute State Party without its consent. It is less persuasive if that principle is extended into a categorical claim that no U.S. or allied national may ever fall within ICC jurisdiction. Under the Statute's ordinary territorial model, nationality-state consent is not the only possible jurisdictional connection.
4. U.S. Domestic Authority and International Legality
Executive Order 14203 operates within the U.S. legal system through statutes including the International Emergency Economic Powers Act and the National Emergencies Act, together with separate immigration authority for entry restrictions. Whether the President has remained within those domestic powers is a question of U.S. constitutional, statutory, and administrative law.
International legality is separate. The ILC Articles on State Responsibility reflect the principle that the international characterization of state conduct is not determined by its characterization under internal law. Although the Articles are not themselves a treaty, several of their central rules reflect customary international law. Domestic authorization consequently cannot, by itself, prevent conduct from being internationally wrongful (ILC, 2001, arts 2–3).
The converse also applies. Establishing that a sanction breaches an international obligation would not automatically show that the President exceeded IEEPA or violated the Constitution. The domestic and international inquiries concern different rules, causes of action, and legal consequences.
4.1 Challenges to Executive Order 14203
U.S. courts have already confronted parts of the sanctions regime. In Rona v. Trump, the Southern District of New York granted a permanent injunction in July 2025 protecting Gabor Rona and Lisa Davis from enforcement of EO 14203 against specified activities. The court held that applying the order to their work violated the First Amendment (Rona v. Trump, 2025).
Litigation concerning Francesca Albanese followed a different procedural path. In May 2026, a federal district court granted preliminary relief in a case brought by her husband and daughter, finding likely First Amendment harm. The government appealed, and the D.C. Circuit subsequently stayed the operative injunction sufficiently to permit renewed enforcement while the appeal continued. A preliminary injunction and an appellate stay do not amount to a final determination of the sanctions regime's validity (L.C. v. Trump, 2026).
Separate actions brought by sanctioned ICC judges and U.S. civil-society organizations remain pending. They raise claims under IEEPA, the Administrative Procedure Act, the First and Fifth Amendments, and other domestic law. These proceedings may determine whether particular applications of EO 14203 are lawful within the United States, but they do not constitute international adjudications of U.S. responsibility.
5. How International Law Treats Unilateral Sanctions
International law does not contain a generally accepted rule making every unilateral economic sanction unlawful simply because the Security Council did not authorize it. Restrictions on trade, financial dealings, entry, or diplomatic relations must instead be tested against the international obligations binding on the state imposing them.
Retorsion and countermeasures must also be distinguished. Retorsion consists of unfriendly but otherwise lawful conduct. Countermeasures involve temporary non-performance of an obligation that would otherwise bind an injured state, undertaken in response to a prior internationally wrongful act and subject to conditions including proportionality and procedural requirements (ILC, 2001, arts 22, 49–53).
The countermeasures framework is difficult to transpose directly to the ICC dispute. The 2001 Articles on State Responsibility principally address relations between states, while the ICC is an international organization. The ILC's 2011 Draft Articles on the Responsibility of International Organizations address responsibility involving international organizations, including countermeasures, but they are nonbinding and rest on a thinner body of practice in this area (ILC, 2011).
EO 14203 does not itself characterize the sanctions as countermeasures under international law. Treating them as such would require proof of a prior internationally wrongful act attributable to the ICC, an appropriate legal relationship between the United States and the Court, and compliance with the conditions governing countermeasures. Those propositions cannot simply be assumed.
5.1 Retorsion or Internationally Wrongful Conduct?
Some U.S. measures may operate as retorsion. A state generally exercises broad authority over admission to its territory and over assets and transactions within its jurisdiction. Economic severity or political hostility does not, without more, make those restrictions internationally unlawful.
The analysis changes when a sanction conflicts with another applicable obligation. A measure affecting an international official, a treaty-protected person, or another state's legally protected interests may engage rules that restrict otherwise lawful discretion. The relevant question is not whether the measure is called a sanction, but whether the United States was internationally obliged to act differently.
That inquiry requires identification of the specific rule, proof that it binds the United States, and an assessment of whether the particular sanction falls within its scope. This measure-specific approach is essential to evaluating EO 14203.
6. International-Law Limits on the ICC Sanctions
International criticism of the sanctions is extensive, but condemnation does not establish illegality. The stronger arguments depend on identifiable legal rules concerning the administration of justice, privileges and immunities, human rights, or relations with Rome Statute States Parties.
A recurring difficulty is applicability. The United States is not a Rome Statute State Party and has not accepted several treaties associated with the ICC. Treaty protections directed exclusively at States Parties cannot automatically be converted into obligations binding Washington.
6.1 Interference With the Administration of Justice
The Rome Statute protects both judicial and prosecutorial independence. Article 40 addresses the independence of judges, while Article 42 provides that the Office of the Prosecutor shall act independently as a separate organ of the Court (Rome Statute, 1998, arts 40, 42).
Article 70 is also relevant. Article 70(1)(d) concerns intentionally impeding, intimidating, or corruptly influencing a Court official for the purpose of affecting the performance of official duties. Where sanctions are intended to deter future judicial or prosecutorial conduct, that provision may be engaged conceptually.
Article 70(1)(e) is potentially more directly relevant to retaliation for duties already performed. Sanctions expressly imposed because an official participated in an investigation, warrant, or prosecution could raise that issue. No ICC judgment has held that EO 14203 satisfies the elements of an Article 70 offense, and such a conclusion cannot be presumed.
Even if Article 70 were engaged in relation to particular individuals, individual criminal responsibility and state responsibility remain distinct. Article 70 does not, by itself, establish that the United States as a nonparty state has breached an international obligation owed under the Rome Statute.
6.2 Privileges and Immunities of ICC Officials
Article 48 of the Rome Statute protects the Court and its officials within States Parties, while the Agreement on the Privileges and Immunities of the International Criminal Court elaborates those protections. Their purpose is functional: they safeguard the independent exercise of Court duties rather than confer personal advantages (Rome Statute, 1998, art. 48; United Nations, 2002).
The treaty problem is substantial. The United States is neither a State Party to the Rome Statute nor a party to the ICC privileges agreement. Those treaty provisions cannot therefore be applied to Washington as though it had accepted them.
A separate customary-law argument would require evidence of state practice and opinio juris establishing a sufficiently specific rule protecting ICC personnel from economic sanctions imposed by nonmember states. The existence and scope of such a rule are not settled, so it should not be treated as an established basis of U.S. responsibility.
Francesca Albanese presents a different issue because she is a UN Special Rapporteur rather than an ICC official. The United States is a party to the Convention on the Privileges and Immunities of the United Nations, under which UN experts on mission receive specified functional privileges and immunities. Special Rapporteurs fall within that institutional category.
That treaty status makes the Albanese case legally distinct from sanctions against ICC judges. It does not automatically follow that an OFAC designation violates the UN Convention, because the scope of functional immunity and its application to economic sanctions require separate interpretation. The relevant protections, however, cannot be dismissed on the ground that the United States is outside the Rome Statute.
6.3 Human Rights and Extraterritorial Effects
Human-rights arguments also depend on the person affected and the location of the relevant conduct. The United States is a party to the International Covenant on Civil and Political Rights, under which expression, association, privacy, and family life may become relevant to sanctions affecting advocacy, professional activity, or family relationships.
The United States has declared Articles 1–27 of the ICCPR non-self-executing for domestic purposes. That affects their direct enforceability in U.S. courts but does not eliminate the United States' international treaty obligations.
Extraterritorial application is more contested. The United States has historically adopted a narrower interpretation of the Covenant's territorial reach than the UN Human Rights Committee. Foreign persons experiencing financial or professional consequences abroad cannot automatically be treated as falling within U.S. jurisdiction for every ICCPR purpose.
Indirect commercial effects require similar caution. Banks and service providers outside the United States may terminate relationships because of exposure to the U.S. financial system. Such consequences demonstrate the practical reach of OFAC designation, but international unlawfulness still depends on identifying an applicable rule and establishing a breach.
6.4 Pressure on Rome Statute States Parties
Rome Statute States Parties have undertaken cooperation obligations, including the general duty in Article 86 to cooperate fully with the Court. U.S. measures that increase the political or economic cost of such cooperation can place pressure on states and private actors involved in the ICC system (Rome Statute, 1998, art. 86).
Pressure alone is not prohibited intervention. In Nicaragua, the ICJ identified coercion as the defining element of unlawful intervention in matters in which a state is entitled to decide freely (ICJ, 1986). Economic influence, diplomatic criticism, and political persuasion do not automatically satisfy that threshold.
The distinction becomes important where the United States seeks different outcomes. Encouraging a state lawfully to withdraw from the Rome Statute is not the same legal act as coercing a State Party to disregard obligations that remain binding while it continues to be a party. Any non-intervention argument must identify the specific conduct, the sovereign choice or legal obligation affected, and the degree of coercion involved.
7. Are the U.S. Sanctions on the ICC Legal?
The strongest U.S. argument begins with nonparty status. Washington is not bound by the ordinary obligations that the Rome Statute imposes on States Parties and generally cannot be required, merely because of that treaty, to cooperate with the Court as though it had ratified the Statute.
International law also does not impose a general prohibition on unilateral sanctions. The United States retains considerable authority over entry into its territory and transactions or property within its jurisdiction. Where no independent international obligation restricts that authority, such measures may amount to lawful retorsion.
The administration's broader objection to ICC jurisdiction is less persuasive. Article 12 does not establish a general nationality-state veto where its territorial conditions are satisfied. The principle that the Rome Statute cannot impose treaty obligations on the United States is analytically different from a claim that every U.S. or allied national is immune from ICC jurisdiction.
That weakness does not make EO 14203 unlawful as a whole. International responsibility requires a breach of an obligation binding on the United States. Different designations may consequently produce different answers depending on the person targeted, the right or immunity invoked, and the legal basis of the sanction.
The most serious questions arise where sanctions target officials because of judicial or prosecutorial functions or affect persons protected by separate treaty regimes. Article 70 raises potential concerns about interference or retaliation, although no court has held that EO 14203 constitutes an offense under that provision. ICC privileges treaties face the obstacle of U.S. nonparticipation, while Albanese's position as a UN expert engages a separate treaty framework to which the United States is party.
The legally defensible conclusion is consequently limited. Washington can insist that it is not bound by obligations the Rome Statute imposes on States Parties and can exercise substantial control over its own financial and immigration systems. A particular sanction would nevertheless be internationally wrongful if it breached another applicable treaty or customary obligation.
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Conclusion
U.S. sanctions on the ICC are not automatically lawful because Washington is outside the Rome Statute, nor are they automatically unlawful because they are unilateral. Their international legality depends on the particular measure and the international obligation alleged to restrict it.
The United States is on strong legal ground when it rejects the ordinary treaty duties undertaken by Rome Statute States Parties. Its broader claim that nationality-state consent is always necessary for ICC criminal jurisdiction is harder to reconcile with Article 12 where the Statute's applicable territorial preconditions are satisfied.
Sanctions against judges, prosecutors, Court personnel, and cooperating actors raise more difficult questions. Judicial and prosecutorial independence, Article 70, privileges and immunities, human rights, and pressure on States Parties may all become relevant, but each argument has its own jurisdictional and treaty limitations.
The dispute consequently cannot be resolved by a single proposition about sovereignty or sanctions. The ICC may exercise territorial jurisdiction where the Rome Statute's applicable jurisdictional conditions are satisfied, while the United States retains substantial authority over its financial and immigration systems. International law determines where those powers encounter an obligation that the United States has actually accepted, or that binds it under customary law.
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United States Department of State (2026) ‘State Department Launches Campaign to Dismantle International Criminal Court’s Threat to American Sovereignty’ [online], 13 July. Available at: https://www.state.gov/releases/office-of-the-spokesperson/2026/07/state-department-launches-campaign-to-dismantle-international-criminal-courts-threat-to-american-sovereignty (Accessed: 18 August 2026).
United States District Court for the District of Columbia (2026) L.C. et al. v. Trump et al., Memorandum Opinion granting preliminary injunction, 13 May 2026, Civil Case No. 26-688 (RJL).
United States District Court for the Southern District of New York (2025) Rona v. Trump, Opinion and Order, 30 July 2025, 797 F. Supp. 3d 278.
United States District Court for the Southern District of New York (2026a) American Friends Service Committee et al. v. Trump et al., Complaint, 11 August 2026, No. 1:26-cv-06830.
United States District Court for the Southern District of New York (2026b) Prost v. Trump, Complaint, 24 June 2026, No. 1:26-cv-05305.
Vienna Convention on the Law of Treaties (1969) adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331.
