The Details and The Pattern

Since the negotiation of the Rome Statute—the treaty that established the International Criminal Court (ICC)—the relationship between the United States and the ICC has resembled a pendulum, swinging between moments of tentative support and overt hostility. With President Trump now back in office, the pendulum has swung back to confrontation.

In February 2025, Trump issued an executive order that accused the ICC of engaging in “illegitimate and baseless actions” targeting the U.S. and its close ally, Israel. This order imposed U.S. sanctions on ICC prosecutor Karim Khan and instructed the Secretary of State to consider additional sanctions within a 60-day timeframe. Although the designations came a bit later, by June 5, four ICC judges were named under the sanctions—two involved in the investigation into Afghanistan and two who authorized arrest warrants against Israeli leaders Netanyahu and Gallant. This post explores these developments and situates them within the broader context of U.S.-ICC relations.

A Quarter-Century of Oscillation

The specifics of Trump’s current confrontation with the ICC are new, but the underlying themes are not. Throughout the last 25 years, U.S. relations with the ICC have fluctuated significantly, often mirroring changes in presidential administrations.

• Clinton Administration: The Clinton administration was integral in the negotiation of the Rome Statute. While Clinton signed the Statute, he declared that he would not recommend its submission for Senate ratification until “fundamental concerns” were addressed.

• Bush Administration: The George W. Bush era marked a period of robust resistance to the ICC. The administration “unsign” the Rome Statute, executed various bilateral agreements to minimize U.S. military personnel’s potential extradition, and passed the “Hague Invasion Act.” By Bush’s second term, there was a slight thaw in relations, exemplified by the U.S. not vetoing the Security Council’s 2005 referral of the situation in Darfur.

• Obama Administration: Under President Obama, relations warmed again. The U.S. engaged positively with the ICC by attending the Kampala Review Conference and supporting the Security Council’s 2011 referral of the Libya situation.

• First Trump Administration: The first Trump administration reverted to a hostile posture, led by John Bolton—an influential figure in the Bush-era approach. When the ICC authorized an investigation into Afghanistan regarding alleged U.S. war crimes, President Trump issued sanctions against ICC personnel.

• Biden Administration: The Biden administration attempted renewed engagement with the ICC, terminating Trump’s earlier executive orders despite ongoing concerns about the Afghanistan investigation. Biden expressed favorable opinions on the 2023 arrest warrant issued against Vladimir Putin while objecting to those against Netanyahu and Gallant.

With Trump now elected for a second term, it was predictable that the pendulum would swing again—and indeed, it did, quickly.

President Trump’s Executive Orders

In the initial weeks of his second term, Trump took two significant actions against the ICC. On January 20, 2025, he issued an executive order revoking many of Biden’s decisions, including the one that had nullified Trump’s previous 2020 executive order concerning ICC sanctions. On February 6, he rolled out a new executive order—EO 14,203—imposing sanctions on the ICC. While the previous order primarily concentrated on the Afghanistan investigation, the new one also focused on the arrest warrants against Netanyahu and Gallant.

The sanctions initiated by EO 14,203 are often characterized as aimed at the ICC itself. However, the order carefully designates specific individuals, allowing the Secretary of State to sanction non-U.S. citizens associated with ICC investigations into U.S. persons or its allies, primarily Israel. Initially, Karim Khan was explicitly named as a designated individual, even before his leave of absence from the ICC over allegations of misconduct.

Three main consequences arise from these designations: denial of entry into the U.S. for those named, blocking of U.S.-controlled assets, and prohibitions on anyone—including U.S. citizens—from providing funds, goods, or services to the designated individuals. Violating these sanctions carries severe potential penalties.

These tactics rely on long-standing U.S. legislative frameworks like the International Emergency Economic Powers Act (IEEPA), which empowers the President to declare national emergencies that threaten national security, foreign policy, or the economy. Once invoked, IEEPA allows a range of actions, including asset-blocking and transaction prohibitions. The authority for denying entry into the U.S. is grounded in a law that grants the President significant discretion in regulating non-citizens’ entry.

Challenges to the Executive Orders in U.S. Domestic Courts

In spring 2025, multiple lawsuits were initiated to contest the application of EO 14,203. Plaintiffs include U.S. citizens—law professors and human rights advocates—who engage collaboratively with the ICC’s Prosecutor’s office. They argue that the executive order exceeds the President’s authority under IEEPA and infringes upon their constitutional rights, aiming for preliminary injunctions. Initial decisions from federal courts are anticipated soon, although Khan’s leave may reduce the urgency.

A thoughtful examination by Nema Milaninia on the Lawfare blog highlights various legal issues in these challenges. Three points are particularly noteworthy:

1. Scope of IEEPA: Plaintiffs assert that the President cannot sanction their provision of legal support to the Prosecutor, primarily because this support consists of "information," which IEEPA does not regulate. Their arguments have merit, particularly given a recent Supreme Court decision advocating less deference to agencies in statutory interpretation.

2. First Amendment Rights: The executive order appears to limit plaintiffs’ ability to engage in protected speech with the ICC, which succeeded in a similar 2020 case. The current administration seems to recognize this potential infringement but has been vague about delineating protected speech from prohibited engagement.

3. Limited Nature of Suits: Even if plaintiffs succeed, their victories would not terminate EO 14,203. They may only narrow its scope regarding what constitutes “funds, goods, and services.” Other significant repercussions of the order would remain intact, including asset-blocking and travel prohibitions, alongside the overarching hostile stance of the Trump administration.

The Bigger Picture

The actions of Trump’s second administration are indeed more dramatic and unsettling than the first. However, in terms of the ICC, the narrative reflects a continuity more than a radical departure. The second Trump administration primarily recycles approaches from the first, maintaining significant hostility towards the ICC, reminiscent of the Bush administration’s disdain for international justice.

While it may be tempting to overlook the earlier efforts against the ICC by the Bush administration, it’s vital to note that much greater effort went into their opposition than what we have seen so far from Trump. A mere executive order can be implemented more readily than negotiating bilateral agreements or pushing legislative changes through Congress. Future developments from the Trump administration remain to be seen—draft legislation is already pending—but it appears the administration will refrain from deeper actions unless further ICC initiatives arise, such as seeking arrest warrants for U.S. personnel related to Afghanistan or additional warrants against Israeli leaders.

Regrettably, this pattern of hostility from Republican administrations toward the ICC is likely to endure. Nonetheless, past experiences suggest that these sanctions may carry significant costs for the Trump administration and may not be entirely detrimental to the ICC. While Trump may dismiss principles of international justice, there’s potential for a shift in sentiment regarding the ICC, as global protest against these recent sanctions mounts. History indicates that heightened animosity can sometimes galvanize broader international support for institutions like the ICC.

While the ICC is far from perfect, its role in international justice is indispensable. It stands as a beacon for accountability in a world that often struggles to uphold the principles it was designed to promote.