Unpacking Trump’s sanctions on the ICC
On Thursday, US President Donald Trump signed an executive order to sanction the International Criminal Court (ICC) over its investigations into top Israeli officials.
British barrister Karim Khan, who is the ICC's chief prosecutor, is the only person named as a sanctioned individual.
The order comes after a visit to the White House by Israeli Prime Minister Benjamin Netanyahu, who is wanted by the ICC over alleged war crimes and crimes against humanity committed in Gaza since October 2023.
Netanyahu and his then defence minister, Yoav Gallant, were issued arrest warrants in November last year, alongside three Hamas leaders, who have since been killed by Israel.
The order places financial and visa sanctions on Khan as well as other non-US individuals and their family members who assist in ICC investigations of US citizens or allies.
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The ICC president has previously warned that the sanctions may pose an existential threat to the court. Experts have also warned of the impact of the sanctions on the court's work beyond investigations into Israeli leaders.
“I fear the reverberations from this will be felt for a long time,” Todd F Buchwald, a legal scholar and former US ambassador-at-large for global criminal justice, told Middle East Eye.
Below, we unpack the order and how the court can be shielded from its impacts.
What is an executive order?
An executive order is a directive issued by the president of the United States that has the force of law. An executive order is not a legislation, meaning it does not require approval from Congress, but it must be based on existing constitutional or statutory authority.
Under the National Emergencies Act (NEA) of 1976, the president has the authority to declare a national emergency, which unlocks specific powers granted by various federal laws including the imposition of sanctions on foreign individuals or governments.
'I fear the reverberations from this will be felt for a long time'
Todd F Buchwald, former US ambassador-at-large
Although executive orders have significant authority, they are subject to judicial review and can be challenged in court if deemed unconstitutional.
But this is unusual when it comes to sanctions, said Adam Keith, accountability director at Human Rights First.
“US courts are very deferential to the executive branch, and often sanctions actions don't get raised in court,” he said.
Additionally, Congress can override an executive order by passing new legislation, though this would require a presidential signature or a veto-proof majority.
In his executive order of 6 February, Trump declared a national emergency to address the alleged threat of ICC investigations into persons deemed protected under this order.
Why is Trump sanctioning the ICC?
In his order, Trump said the ICC has “engaged in illegitimate and baseless actions targeting America and our close ally Israel".
The US and Israel are not state parties to the Rome Statute, the treaty that established the ICC in The Hague in 2002. Both states have opposed the court’s investigation into the situation in Palestine, launched by the ICC’s previous prosecutor Fatou Bensouda in 2021.
The court’s jurisdiction was based on the accession of the State of Palestine to the Rome Statute in 2015. Accordingly, the court can investigate Israeli individuals for crimes committed in occupied Palestine, which includes the Gaza Strip, the West Bank and East Jerusalem.
But Israel and the US have challenged the court’s jurisdiction, saying they do not recognise Palestine as a state, and that Israel is best placed to investigate itself under the principle of complementarity as set out in Article 17 of the Rome Statute.
Trump’s order reiterated this view and described the arrest warrants as an abuse of power.
The order added that the ICC’s investigations put US personnel and members of the armed forces at risk of “harassment, abuse, and possible arrest”. This in turn could threaten US and Israeli sovereignty and national security, it said.
The order referred to the 2002 American Servicemembers’ Protection Act (ASPA), passed under the administration of President George W Bush, which restricted US cooperation with the ICC and even authorises the use of force to free detained US personnel, earning it the nickname, the "Hague Invasion Act".
Who is the target of sanctions?
The order blocks all US property and assets of the ICC's Prosecutor Karim Khan (the only person named in the annex to the order), and foreign persons who have directly engaged in ICC efforts to investigate or prosecute a protected person.
Protected persons include US nationals or those of allied countries, including current and former government officials and members of the armed forces.
The sanctioned individuals and their immediate family members would also be banned from entry to the US.
'What Europe really needs to do is to set up a counter-sanctions regime that provides financial liquidity to any court personnel who are subject to Trump sanctions'
- Kenneth Roth, former HRW director
Human Rights Watch said that US sanctions have “a chilling effect” on banks and companies outside the US that could be blocked out of the US banking system if they do not support the sanctions. Additionally, US persons may face fines and imprisonment for not upholding the sanctions.
“The order appears designed not only to intimidate court officials and staff involved in the court’s critical investigations, but also to chill broader cooperation with the ICC, affecting the rights of victims globally,” the US rights group said.
The impact on the court's work depends largely on who is sanctioned and how many officials, Keith, of Human Rights First, said.
The EU on Friday warned that Trump's order has the potential to seriously affect the court's work in all investigations, not just that on Palestine.
The court is currently investigating alleged crimes in 16 situations, including Darfur, Ukraine, Venezuela, Afghanistan and Myanmar.
"The executive order could represent a serious challenge to the work of the ICC with the risks of affecting ongoing investigations and proceedings, including as regards Ukraine, impacting years of efforts to ensure accountability around the world," an EU spokesperson told MEE.
The court’s president, Tomoko Akane, warned in December against the possible sanctions, saying they represent an existential threat to the first permanent international criminal justice institution.
“These measures would rapidly undermine the court’s operations in all situations and cases and jeopardise its very existence,” she said.
How can the ICC be protected?
There are measures ICC member states can take to counter the effect of sanctions.
It is possible, for example, to use the EU Blocking Statute to protect the court within Europe. The statute is a regulation that aims to protect companies and individuals from the bloc from the effects of extra-territorial sanctions imposed by third countries.
It primarily focuses on shielding EU operators from certain US sanctions considered to have extraterritorial reach, like those against Cuba and Iran.
The EU Blocking Statute would assure EU-based service providers that their transactions with the ICC are protected, Liz Evenson, international justice director at HRW, explained.
Meanwhile, Kenneth Roth, US attorney and former executive director of HRW, noted that the EU should set up a financial system that would allow the court's staff to function irrespective of Trump's sanctions.
"Trump's sanctions are focused on the US dollar system, and a lot of international transactions operate through the dollar," he said.
"What Europe really needs to do is to set up a counter-sanctions regime that provides financial liquidity to any court personnel who are subject to Trump sanctions."
The ICC, on the other hand, has the right under article 70 of the Rome Statute to charge Trump and other US officials behind the sanctions with obstruction of justice.
The threat is not one of being arrested, but rather that Trump would not be able to travel to most European countries, said Roth.
All 125 member states of the ICC, including all EU countries, have an obligation to cooperate with the court if it charges an official.
"Trump's world will become much smaller," said Roth, pointing to the example of Russian President Vladimir Putin, who restricted his travels, including to a Brics summit in South Africa, following the ICC’s arrest warrant for him in 2022.
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