The United States has a long history of supporting international criminal law, dating back to the Nuremberg tribunal 80 years ago. At that time, the US played a central role in establishing the tribunal, providing a judge and a chief prosecutor, and ensuring that the defendants received due process of law. This legacy has continued, with the US instrumental in establishing modern international criminal tribunals, including the International Criminal Court (ICC).
After a long Cold-War hiatus, the discipline experienced a revival in the 1990s, drawing directly on the Nuremberg legacy.
The Trump administration’s move to impose sanctions on judges serving at the International Criminal Court has drawn sharp criticism, both as an alarming expansion of executive power and a betrayal of long-standing moral commitments. The order justifying these penalties cites the International Emergency Economic Powers Act (IEEPA), a law intended for true national security crises. Yet the claim that ICC probes into possible crimes in Gaza and other regions amount to an equivalent danger has been widely questioned by legal experts.
Sanctions Without Statutory Basis
The ICC’s actions fall squarely within its legal mandate under the Rome Statute, a treaty ratified by over 120 United Nations member states. While the US has never joined this agreement, its absence does not justify treating a judicial inquiry as a security threat. Historically, the US has even submitted formal arguments to the ICC when disputing its rulings, demonstrating that non-membership does not negate the court’s legitimacy.
No proof exists that the sanctioned judges—citizens of US allies—pose any direct risk to American security or personnel. In fact, the US has repeatedly assisted the ICC through intelligence sharing, witness protection programs, and other forms of cooperation. The very institution now framed as a menace has long received support from the same government that suddenly portrays it as an existential danger.
The administration‘s position fails the basic administrative law test: government agency actions must be grounded in facts, not on conjecture, political preferences, or fear-mongering. Courts typically require a clear link between the claimed threat and the law being invoked. Here, that connection is entirely absent, leaving the sanctions legally indefensible.
A Moral Failure
During the Yugoslavia Tribunal, the United States seconded roughly 22 professionals to the Office of the Prosecutor, and in subsequent years dozens of American citizens have served at the International Criminal Court, showing the depth of U.S. involvement.
By targeting ICC judges, the Trump administration aligns the US with regimes that suppress international justice. It weakens the standing of American diplomats who have urged other nations to uphold human rights and engage with global courts. Worse, it sends a warning to victims of atrocities: that the US may now dismantle the only remaining body capable of holding perpetrators accountable.
The NGOs challenging the sanctions order have argued that it exceeds presidential authority because it invents a threat that Congress never contemplated. The President cannot manufacture an emergency simply because he disagrees with a court‘s decisions. That is not how IEEPA, or the separation of powers, works. As plaintiffs have noted, the Executive Order is arbitrary, capricious, and unsupported by the administrative record.
The federal courts reviewing the preliminary injunction motions now face a defining question: whether the President may invoke emergency powers – without evidence, without statutory grounding, and without regard for the constitutional principles that restrain executive authority. The answer must be no. The US cannot abandon its role as a defender of international justice. Former war crimes envoys Stephen J. Rapp and Beth Van Schaack have filed a legal brief supporting the NGOs challenging the sanctions, arguing that the order directly attacks the principle of judicial independence.
The United States has long advanced the latter principle in its global human rights policy, criticizing foreign government officials who threaten or attempt to intimidate judges for carrying out their judicial functions. The Executive Order does not merely target the ICC-it targets the very foundation of judicial independence itself.
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