Legal Challenges Mount Against Renewed U.S. Sanctions on the ICC

On May 5, Eric Iverson, a U.S. citizen and decorated Army veteran who has worked as a prosecutor in the International Criminal Court (ICC) Office of the Prosecutor (OTP) since 2010, filed a lawsuit against the Trump administration over its imposition of sanctions against the ICC. Iverson v. Trump is the third set of lawsuits brought by U.S. citizens—law professors, human rights advocates, and even Iverson, an ICC prosecutor—challenging the legality of Executive Order 14203, “Imposing Sanctions on the International Criminal Court.”

Executive Order (EO) 14203, which President Trump issued in February, imposed sanctions on ICC Prosecutor, Karim Khan, designating him a specially designated national (SDN) under U.S. sanctions law. The executive action revives Executive Order 13928, a contentious policy advanced in 2020 during President Trump’s first term. Following legal challenges, international condemnation, and a general determination that concerns about potential ICC overreach were better addressed through engagement than the imposition of sanctions, the Biden administration rescinded the order in April 2021.

In resuming sanctions against the ICC, EO 14203 declares that efforts by the ICC to investigate, arrest, detain, or prosecute U.S. nationals—or those of certain allies—pose an “unusual and extraordinary threat” to U.S. national security and foreign policy. On that basis, President Trump invoked the International Emergency Economic Powers Act (IEEPA) to block the property and prohibit the provision of “services by, to, or for the benefit of” any individual designated under the order, including ICC Prosecutor Karim Khan.

All three lawsuits raise important constitutional and statutory claims with far-reaching implications for U.S. engagement with international justice institutions. In all three, the plaintiffs argue that EO 14203 replicates, in nearly identical terms, EO 13928—an executive order preliminarily enjoined by the U.S. District Court for the Southern District of New York in Open Society Justice Initiative v. Trump. In that case, the court issued a preliminary injunction after finding that plaintiffs were likely to succeed on their First Amendment challenge to EO 13928 since it constituted a content-based restriction on speech and was not narrowly tailored.

This article examines the legal and institutional consequences of EO 14203, focusing on the constitutional and statutory challenges now pending in federal court, their implications for U.S. engagement with international justice institutions, and the broader strategic risks posed by the sanctions regime.

First Amendment Claims: Penalizing Protected Speech and Legal Advocacy

All three lawsuits assert that EO 14203 imposes a content-based restriction on speech, targeting individuals not because of the nature of their expression, but because of its intended recipient—namely, a designated international prosecutor. Under long-standing First Amendment doctrine, such restrictions are subject to strict scrutiny: They must be narrowly tailored to advance a compelling government interest.

According to the complaints, the executive order sweeps too broadly. It does not distinguish between activities that directly implicate U.S. or allied personnel—referred to as “protected persons” under the EO—and those that are wholly unrelated. For example, Iverson leads investigations into atrocities committed in Darfur—which does not involve protected persons. Nonetheless, under the current sanctions framework, he is barred from continuing his work. Similarly, law professors Lisa Davis and Gabor Rona, the former of whom serves as a special adviser to Prosecutor Khan on gender and other discriminatory crimes, claim having curtailed or reconsidered their professional engagement with the ICC, including academic programming and policy contributions.

In all three cases, the plaintiffs argue that the EO 14203 not only censors protected expression but also restricts core legal work—such as providing legal analysis, facilitating cooperation with victims, or engaging in advocacy—solely because it may be construed as “benefiting” the designated prosecutor. They contend that the government could have achieved its policy objectives through more narrowly tailored means, such as licensing arrangements that allow for specific types of protected interaction while maintaining enforcement boundaries around genuinely sensitive matters. Under the current regime, no such pathways exist for individuals to clarify whether their work may lawfully continue.

The argument for narrower alternatives is particularly relevant in light of existing precedent. In Open Society Justice Initiative v. Trump, the federal court held that a substantively identical executive order likely violated the First Amendment because it burdened significantly more speech than necessary. That decision may weigh heavily in current proceedings absent further efforts by the administration, through the Office of Foreign Assets Control, to carve out a licensing scheme that might prevent over-inclusivity.

Ultimately, the factual circumstances of each case will shape how courts assess the asserted harms. Of the three challenges, those brought by human rights advocates and policy experts may face the steepest hurdle in demonstrating that their work is essential to the ICC’s functioning. While the complaints emphasize the significance of these individuals’ contributions, it appears that some may have overstated the extent to which their work directly informs or supports ongoing investigations. For instance, courts are likely to distinguish between core prosecutorial or investigative functions—such as those carried out by staff like Iverson—and more peripheral activities, including policy advice, external reporting, or academic commentary. In many cases, human rights organizations and advocates provide valuable contextual information to prosecutors, but their submissions are not typically treated as formal evidence unless independently corroborated and admitted through investigative procedures. In that light, claims such as those by Akila Radhakrishnan—who describes submitting legal analyses and investigative reports to the ICC—may be viewed as supportive but ultimately external to the court’s evidentiary process. Absent clear evidence that the ICC has relied on specific inputs from these plaintiffs in case filings or proceedings, their claims may be viewed as reflecting incidental rather than substantial burdens. As a result, they may be more vulnerable to arguments that the order regulates speech only indirectly, or that any interference with their activities is outweighed by the government’s asserted national security interest.

Moreover, there remains legal uncertainty about whether the types of advocacy and informational contributions described by some plaintiffs fall squarely within the scope of EO 14203. The order prohibits the provision of “services” to or for the benefit of designated persons, but it does not define the term with precision, leaving room for interpretation. Activities such as public advocacy, thematic legal reporting, or commentary—especially when not undertaken at the direction of the Prosecutor or as part of a formal engagement—may not clearly qualify as sanctionable “services” under existing OFAC precedent. If accepted, that interpretation could significantly narrow the reach of EO 14203 and undercut the government’s position that these plaintiffs are engaged in sanctionable conduct. Nonetheless, even where the legal argument for exclusion is plausible, the risks for individuals engaging with the ICC remain significant. The breadth and ambiguity of the order, coupled with the potential for aggressive enforcement, create a chilling effect regardless of how courts may ultimately interpret the term. For members of the OTP and affiliated professionals—particularly those operating under a formal or semi-formal relationship with the Court—the threat of sanctions remains credible and consequential, underscoring the need for clearer guidance or safe harbor mechanisms.

As it is, plaintiffs in this category may face a dual challenge: demonstrating that their work is both sufficiently burdensome to trigger constitutional protection and sufficiently tied to the prosecutor to fall within the order’s scope. Where neither condition is clearly met, courts may be more inclined to defer to the executive’s national security rationale and find that any incidental impact on speech is constitutionally permissible.

Nonetheless, all three lawsuits raise serious questions about the breadth of the order and the adequacy of safeguards available to U.S. persons who work with international institutions. The absence of a licensing process or formal guidance for distinguishing prohibited from permissible conduct further complicates the legal and practical landscape.

IEEPA Claims: Constraints on Presidential Sanctions Authority

In parallel to their constitutional claims, the plaintiffs argue that the president has exceeded the authority granted under IEEPA. These arguments are grounded in two primary statutory challenges: the informational materials exemption and the scope of the president’s authority to declare a national emergency.

First, plaintiffs invoke IEEPA’s statutory carve-out for “informational materials.” Under 50 U.S.C. § 1702(b)(3), the president may not regulate or prohibit the import or export of any information or informational materials, regardless of format or medium. Plaintiffs such as Matthew Smith and Akila Radhakrishnan—who claim to have provided legal analyses, evidentiary submissions, and investigative reports to the ICC—contend that their work fits squarely within this protected category. They challenge the government’s interpretation that providing such materials “for the benefit of” a designated person removes them from the exemption’s scope, arguing that this reading is overly narrow and inconsistent with both the statute’s text and its historical application.

Courts have generally interpreted IEEPA’s informational materials exemption broadly, recognizing that the law was designed to protect the free flow of expressive content—such as legal analysis, news, evidence, and academic work—even across borders and in digital form. When material is clearly communicative and not tied to paid services or commercial support, judges have been reluctant to permit sanctions that would block its exchange. While some past decisions deferred to narrower agency interpretations, those rulings typically hinged on ambiguity in specific cases—not a rejection of the exemption itself. In more recent contexts, particularly where expressive content is central and not incidental to a broader transaction, courts have treated the exemption as a firm limit on executive power. For plaintiffs sharing legal or evidentiary materials with international institutions like the ICC, and doing so outside of a service-for-compensation framework, the informational materials exemption may offer stronger protection than initially assumed.

Second, plaintiffs challenge whether EO 14203 is supported by a legitimate “unusual and extraordinary threat,” as IEEPA requires. They argue that the risk of ICC investigations involving U.S. or allied personnel is neither novel nor emergent and point to Congress’s prior consideration of the issue in the American Servicemembers’ Protection Act (ASPA) of 2002. ASPA provided a tailored legislative response to concerns over ICC jurisdiction—explicitly limiting U.S. cooperation with the court but stopping short of endorsing sanctions. Plaintiffs contend that EO 14203 circumvents that framework and effectively legislates where Congress has chosen not to act.

Yet this argument, while compelling from a separation-of-powers perspective, is also likely to be an uphill battle. Courts have traditionally granted the president wide discretion in defining what constitutes a national emergency under IEEPA, even in situations where the underlying “threat” has existed for years or lacks a sudden triggering event. Judicial review of such determinations is typically limited to whether the president has provided a facially plausible justification for the emergency designation—rather than assessing whether the declaration reflects sound policy or is consistent with prior congressional intent. In that light, even if EO 14203 addresses a long-standing concern, courts may be reluctant to second-guess the executive’s national security judgment absent clear statutory conflict.

Together, these IEEPA claims also face a dual challenge, but this of high judicial deference to executive emergency powers and interpretive ambiguity surrounding the statute’s exemptions. While these arguments may reinforce broader constitutional concerns about the scope of unilateral executive action, they are unlikely to serve as the primary grounds for judicial relief in the near term. Instead, the First Amendment claims—especially in cases like Iverson’s, where the factual record is strong and the burden on protected activity is clear—are more likely to drive early rulings and shape how EO 14203 is reviewed by the courts.

A Prosecutor Blocked From Prosecuting

Among the legal challenges to EO 14203, Iverson v. Trump presents the most direct clash between the executive order and established constitutional and statutory protections. Iverson leads the ICC’s investigation into atrocity crimes committed in Darfur, a situation referred by the United Nations Security Council and long supported by successive U.S. administrations. His work involves neither U.S. nor allied personnel and falls squarely within areas of historical U.S. interest in international accountability for crimes committed in Sudan, including by the current administration.

Despite this alignment, EO 14203 prohibits Iverson from continuing his work. Because the ICC prosecutor has been designated under U.S. sanctions law, Iverson is barred from providing services to or for the benefit of his direct supervisor. The result is that a U.S. citizen carrying out lawful, internationally mandated legal functions—in a role consistent with U.S. foreign policy—is prevented from doing so based solely on institutional association. His case thus illustrates the expansive and indiscriminate reach of the order.

On the merits, Iverson’s claims are especially strong. Unlike plaintiffs engaged in academic or advisory support, Iverson’s day-to-day prosecutorial responsibilities have been directly and materially obstructed. The disconnect between his work and any plausible national security rationale is particularly stark, highlighting the order’s potential overbreadth under both the First Amendment and IEEPA.

Procedurally, Iverson’s case is also the most likely to yield a near-term judicial ruling. His is the only of the three cases to request a temporary restraining order (TRO), seeking immediate injunctive relief to allow him to resume his duties. Courts reviewing TROs weigh the likelihood of success on the merits, the risk of irreparable harm, and the public interest. On each point, Iverson presents a compelling argument: His work has been halted mid-investigation, the harm is ongoing and concrete, and the public interest—particularly in prosecuting crimes referred by the Security Council—aligns with continued engagement.

If granted, the TRO not only would provide urgent relief to a single prosecutor but also could serve as an early test of the order’s legality more broadly. A ruling in Iverson’s favor may establish a judicial precedent that shapes how EO 14203 is applied—or whether it can be sustained at all—in cases where U.S. persons are engaged in international legal work consistent with American policy objectives.

Institutional, National, and International Consequences

The broader consequences of EO 14203 extend well beyond the courtroom. Institutionally, the ICC is navigating a period of acute internal challenge. Prosecutor Khan is under investigation for alleged sexual misconduct involving a staff member, as well as related claims that he retaliated against other members of his staff who reported the incident or urged him to step aside. These developments have amplified long-standing concerns about prosecutorial independence, workplace culture, and judicial accountability. Khan is also facing criticism that he has politicized the OTP’s mandate, particularly in his handling of the ICC’s two most high-profile investigations: the situations in Ukraine and the occupied Palestinian territories. Observers have raised concerns over inconsistencies in legal reasoning, public communication, and the perceived prioritization of certain cases, which some argue risks undermining the court’s legitimacy. Khan’s emphasis on “thematic” cases—while aimed at spotlighting under-prosecuted crimes—has drawn criticism for privileging narrative over evidentiary rigor, reinforcing broader concerns that the court is drifting from impartial, fact-driven justice toward politically curated prosecutions.

These challenges come despite an extensive institutional audit undertaken just a few years earlier: the 2020 Independent Expert Review produced over 300 recommendations aimed at strengthening the ICC’s governance, professionalism, and effectiveness. At a time when the court should be focused on implementing these reforms and restoring internal cohesion, the reimposition of U.S. sanctions has become both a distraction and a shield. The sanctions have allowed court leadership and some member states to frame criticism—whether internal or external—as politically motivated, deflecting scrutiny and delaying long-needed conversations around transparency, oversight, and institutional renewal.

That deflection is particularly consequential given what lies ahead. In July, ICC member states are scheduled to convene only the second Review Conference in the court’s 23-year history. Among the most significant items on the agenda are proposed amendments to the Rome Statute concerning the definition and scope of the court’s jurisdiction over the crime of aggression—an issue in which the United States played an active role during the 2010 Kampala negotiations and where U.S. legal experts have historically had significant influence. Yet EO 14203 effectively sidelines the United States and U.S.-affiliated experts from participating in or contributing meaningfully to the process. The sanctions risk could prevent U.S. legal professionals from formally engaging with the court, diminishing opportunities to help shape evolving legal norms, and constraining Washington’s ability to work with allies on shared priorities—whether related to institutional reform, prosecutorial policy, or jurisdictional limits. At a minimum, the imposition of sanctions has significantly diminished the credibility and influence of U.S. legal engagement, weakening its ability to shape the court’s future direction or align international justice mechanisms with broader U.S. policy goals.

Several European governments, and the European Union, have reiterated their support for the ICC’s independence in response to EO 14203 and are exploring options to shield institutions and individuals from the reach of U.S. sanctions. One such option under discussion is the invocation of EU blocking statutes—legal mechanisms designed to nullify the effect of extraterritorial U.S. measures within EU jurisdictions. But the practical utility of these statutes is limited. While they can prohibit EU nationals and entities from complying with foreign sanctions and allow for legal recourse in European courts, they cannot constrain U.S. enforcement actions or protect individuals operating in the U.S. financial system. For U.S. persons or dual nationals, or those dependent on U.S.-linked institutions, the risk remains acute. Moreover, the enforcement of such blocking statutes often lacks consistency, and their invocation risks exacerbating already sensitive transatlantic disputes over digital regulation, trade, and industrial policy. As a result, while EU opposition to EO 14203 may carry symbolic weight, it is unlikely to materially shield the ICC or its affiliates from the sanctions’ intended effects.

More broadly, the reimposition of sanctions marks a significant shift in the U.S. approach to the ICC and international justice institutions more generally. While changes in engagement with multilateral human rights institutions may reflect evolving strategic priorities or differences in policy emphasis, sanctions of this nature go further. They move beyond critique or disengagement by imposing legal and financial penalties on cooperation with an international judicial body. By designating the ICC prosecutor and restricting services provided to the court, the order places U.S. persons at risk of enforcement simply for participating in accountability processes. This approach reframes engagement with a treaty-based legal institution not as a matter of diplomatic discretion, but as conduct potentially subject to U.S. sanctions law—placing the ICC in a category of adversarial treatment typically reserved for terrorist groups and transnational criminal organizations.

Some may argue that the United States, not being a party to the Rome Statute, has little reason to care about the ICC’s direction or outcomes. But that view underestimates both the stakes and the leverage the U.S. has long exercised. Even as a non-member, the United States has played a meaningful role in shaping international justice through Security Council referrals, intelligence sharing, diplomatic coordination, and funding support to accountability efforts that align with its strategic interests—as in Sudan, Libya, and Ukraine. It has also benefited from the ICC’s deterrent and norm-setting effects in contexts where U.S. allies seek justice for atrocity crimes. Notably, it was sustained diplomatic engagement—not coercion or confrontation—that helped deescalate the court’s focus on U.S. personnel in the Afghanistan situation. Disengaging from that approach—or worse, penalizing cooperation with the court—diminishes U.S. credibility, reduces its ability to shape legal norms, and cedes influence to other actors.

In that context, the strategic costs of EO 14203 may outweigh any deterrent value. As the ICC takes on high-profile investigations involving Ukraine, Sudan, Myanmar, and beyond, the United States faces a choice: whether to shape the evolution of international justice through engagement, or to marginalize itself from that process through unilateral restriction.