Authored by Ujjwal Gupta who is a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow.
I. Introduction
In 2025, the United States took extreme measures in its sanctioning regime by targeting sitting judges and prosecutors of the International Criminal Court (“ICC”). Through Executive Order 14203 (“the EO”) and subsequent designations in June, August, and December, the US took the lead in imposing asset freezes, travel restrictions, and transaction limitations on ICC officials who merely carried out their judicial mandate.
The sanctions were justified by the US as a response to the ICC’s imposition of jurisdiction over US and Israeli individuals without their consent, even though neither country is a member of the Rome Statute. The measures taken were clearly linked with the decisions leading to the investigation and the issuance of the arrest warrants, which also included voting in appellate and pre-trial stages. Consequently, the sanctions went beyond the usual patterns of non-cooperation or jurisdictional objection and, instead, punished adjudication itself.
The novelty behind this approach can hardly be overstated. Generally, international sanctions are imposed against states, armed groups, or executive actors who are accused of misconduct. In this case, however, judicial acts, such as the authorisation of investigations and decisions on jurisdictional challenges, were framed as a danger to national security. As a result, there is a direct clash between unilateral coercive measures and the principle of judicial independence in international adjudication.
Against this backdrop, this article examines the United States’ 2025 sanctions against officials of the International Criminal Court by analysing, firstly, the legal basis under US law and their legality under international law; secondly, the ICC’s broader crisis of authority, including long-standing scepticism from India and the Global South; and lastly, the legal and institutional responses necessary to resist coercion and restore confidence in the ICC. This article argues that the 2025 US sanctions on ICC officials undermine judicial independence and reflect a more profound crisis of authority in the ICC.
II. The Legal Basis For US Sanctions Against ICC Officials
The legal basis for the 2025 sanctions regime is Executive Order 14203 issued by the United States President on the 6th of February 2025. The EO was adopted under domestic emergency powers, mainly the International Emergency Economic Powers Act and the National Emergencies Act, following a formal declaration that the activities of the International Criminal Court constituted an “unusual and extraordinary threat” to US national security and foreign policy interests.
Most significantly, the EO allows for the identification of ICC judges and prosecutors as “foreign persons”, a term commonly used in US sanctions regimes for executive officials, private actors, or entities involved in terrorism, rather than officials performing judicial functions. The closest precedent is the 2020 designation of ICC Prosecutor Fatou Bensouda as a “foreign person” under US sanctions, but prior measures did not extend to sitting judges or judicial officials. According to Section 1(a)(ii)(A) of the EO, individuals may be targeted as having “directly engaged” in the ICC’s efforts to investigate, arrest, detain or prosecute a “protected person” without the consent of the person’s state of nationality. The phrasing here conflates judicial decision-making with sanctionable conduct; thus, it is the adjudication itself that is being treated as a hostile act.
The US legal rationale is based on three interrelated arguments. Firstly, the US highlights the fact that it is a non-party to the Rome Statute, pointing out that it has never recognised the Court’s jurisdiction. Secondly, it claims that a jurisdiction exercised over US and Israeli nationals without their consent is a violation of state sovereignty. Thirdly, the EO brings in a new class of “protected persons”, which includes US nationals and nationals of designated allies, such as Israel, whose exposure to ICC proceedings is presented as a concern of national security. As Morris explains, ICC jurisdiction over nationals of non-party states flows from the delegation of territorial criminal jurisdiction by States Parties, and therefore does not violate the sovereignty of third states.
The sanctioned acts cover a broad range of areas. The individuals so named will have their assets frozen [Section 1(a)], meaning all property and interests in property within US jurisdiction will be blocked. They will also be prohibited from entering the US (Section 4), and US persons will not be allowed to carry out any transactions or provide any services to the sanctioned officials [Section 3(a)].
III. Assessing The Legality of US Sanctions Under International Law
The first question that must be addressed is whether unilateral sanctions imposed on officials of an international court are compatible with general international law and the Rome Statute governing the ICC. This has been approached in a three-pronged analysis.
Firstly, imposing sanctions on court personnel for simply carrying out the responsibilities of their profession constitutes a flagrant violation of human rights and undermines the principles of judicial independence and the rule of law. As ICC President Judge Tomoko Akane has observed, “when judges are pressured, threatened, or undermined, the credibility of international law itself is weakened”. This has also been voiced by a number of European governments. These measures also threaten to violate the UN Basic Principles on the Independence of the Judiciary and pose a systemic threat to international adjudication. Secondly, the legality of the US sanctions should also be looked at through the institutional law of the International Criminal Court, read with the protections given under general international law. Article 48 of the Rome Statute grants judges and the Prosecutor privileges and immunities equivalent to those of diplomatic agents, meant to ensure judicial independence. While the requirement to grant such privileges mainly binds the States Parties, the provision shows the broader principle of functional immunity under general international law, which safeguards international officials in respect of acts performed in their official capacity. Among these privileges are non-interference with property, including bank accounts, as laid down in Article 30 of the Vienna Convention on Diplomatic Relations, which is relevant by analogy, given that Article 48 accords equivalent protections to ICC officials. Moreover, Article 48 also engages the Protection of Diplomats Convention, which provides officials of international organisations special protection against attacks on their person, liberty and dignity under Articles 1 and 2 of the Convention. Asset freezes, travel bans, and denial of financial or digital services essentially restrict liberty as well as the performance of official duties. Therefore, these actions go against the raison d’être of Article 48, however, non-party states cannot be made liable for the same.
Moreover, Article 70 of the Rome Statute criminalises offences against the administration of justice. Among other things, it specifically mentions impeding, intimidating, or retaliating against a Court official on account of duties performed. While the provision is primarily designed to impose individual criminal liability, its elements help to illustrate the nature of conduct that international criminal law treats as interference with judicial functions. Herein, sanctions were implemented as a result of ICC judges and prosecutors giving the green light to investigations and ruling on jurisdiction against the US and Israel. To the extent that these measures were adopted with the purpose or foreseeable effect of pressuring officials in relation to their judicial duties, they resemble retaliation against Court officials within the meaning of Article 70(1)(e), even though the provision itself can likely not be enforced against the US due to its non-party status.
Thirdly, the US’s key justification for the sanctions is based on the denial of the ICC’s authority over nationals of non-States Parties. However, according to Article 12(2)(a) of the Rome Statute, the ICC can exercise jurisdiction over crimes committed on the territory of a State Party, irrespective of the accused’s nationality. The Court’s jurisdiction on this ground has been litigated and confirmed by its Pre-Trial Chambers in the Afghanistan and Palestine cases, and has been supported by UN Special Procedures as being in line with international law. Therefore, the US’s justification is not sustainable in law.
There is also a deeper historical irony in the US’s position. The country that was instrumental in the Nuremberg trials and the establishment of the modern international criminal law is now, by imposing sanctions, trying to dilute the contemporary embodiment of this law.
IV. The ICC’s Crisis Of Authority
Not long back, the International Criminal Court celebrated its twentieth anniversary, a milestone that prompted an assessment of its promise as a permanent institution of international criminal justice. However, the sanctions incident reveals that the ICC’s present problem is not temporary but structural. The crisis unfolding is a crisis of authority that predates 2025 and extends beyond sanctions.
At its core, there is an entrenched enforcement deficit. The Court does not have a police force and is entirely dependent on the cooperation of states to execute arrest warrants, collect evidence, enforce sentences, and secure the custody of the accused. When states choose not to cooperate, the Court’s ability to enforce its decisions is significantly constrained.
The failures to arrest well-known figures, like Omar al-Bashir, even with the Court’s binding orders, may lead one to believe that the Court’s authority is often formal and ineffective. Therefore, arrest warrants often become merely symbolic gestures rather than legitimate mechanisms of accountability.
The insufficiency directly nurtures a much bigger legitimacy crisis. Critics have suggested that the Court often appears to be selective, particularly in its focus on Africa and the uneven pace of investigations directed at influential states. Amnesty International has cautioned that such patterns might lead to the establishment of a hierarchical system of international justice, in which some victims are given priority, while others are deprioritised under the pretext of a lack of resources.Limits of jurisdictions add to the vulnerability of the ICC. Its authority is conditioned on the consent of the states, as envisaged in Article 12 of the Rome Statute, which allows the Court to have jurisdiction only where the crimes are committed in the territory of a State Party, the accused is a national of a State Party, or where jurisdiction is activated by a Security Council referral. In the absence of a referral from the Security Council, the Court lacks jurisdiction over major powers such as the United States, Russia, China, India, and Israel, because their non-membership acts as a political constraint in cases where neither the territorial jurisdiction nor a Council referral is available. This exclusion significantly limits its reach and provides these powerful actors a shield from investigation.As Martti Koskenniemi points out, international law is governed by a fragmented system where authority stems from acceptance by powerful states. The sanctions incident is a clear example of this. When the ICC’s jurisdiction was in conflict with influential geopolitical interests, the legal disagreement gave way to coercive pressure and revealed an institution that is an authority in name but weak in practice.
V. India And The Global South’s Scepticism Of The ICC
Scepticism toward the ICC is not limited to Western resistance. The Court has been regarded as structurally imbalanced by the Global South, and especially India, for a long time. India’s choice to stay out of the Rome Statute since 1998 is the result of a careful sovereign assessment rather than defiance against international criminal law. Indian objections have revolved around three issues: the Security Council’s power over the ICC through referral and deferral, the exposure of non-consenting nationals to jurisdiction, and the risk of internal conflicts becoming international.
Similar concerns can be found in the African critiques of the Court. Historically, ICC investigations have mostly focused on African cases, which has been seen as selective justice. This disparity is exacerbated by the Court’s complementarity regime under Article 17, which allows the ICC to act only where states are unwilling or unable to prosecute. Although intended to respect sovereignty, in reality, it allows powerful states to neutralise ICC jurisdiction through formal domestic investigations and avoid meaningful prosecutions. Weaker states, on the other hand, that do not have the same level of legal and institutional capacities, are unable to protect their nationals, which results in a structural asymmetry that is further amplified by veto powers and non-membership of powerful states.
Among recent withdrawals from Mali, Burkina Faso, and Niger is a reflection of decreasing confidence in the ICC. The US sanctions then acted as a catalyst that helped to consolidate the Global South’s long-standing suspicions of international criminal justice and its dependency on powers.
VI. The Way Forward
So far, we see that the ICC is confronted with two interrelated yet distinct challenges. The first is the issue of immediate sanctions aimed at judges and prosecutors. The second is the crisis of authority that makes the Court structurally vulnerable to such kind of pressure. Any adequate response should consider both aspects.
Firstly, to respond to sanctions imposed on ICC officials. The main objective should be to raise the cost of coercion through legal countermeasures. Under general international law, countermeasures must be aimed at inducing compliance, and consequently, they must also satisfy the conditions of necessity and proportionality. The latter conditions imply that countermeasures not only have to be suitable to ensure cessation and reparation but also should not go beyond the injury inflicted. Third States should utilise blocking statutes, like that of the EU, to stop the implementation of extraterritorial sanctions. It is necessary to implement Article 48 immunities, which should include protection of bank accounts and financial access. The Protection of Diplomats Convention offers another legal basis for characterising sanctions as unlawful interference with internationally protected officials. Domestic lawsuits in the United States, under constitutional and administrative law, can also delay the implementation of sanctions. Reputational countermeasures, while not legal countermeasures under international law, are equally important political responses. Sanctions must always be presented as a hindrance to the administration of justice, rather than as a mere difference of opinion regarding policy. This can be strengthened through coordinated diplomatic condemnation and professional censure.
Secondly, dealing with the ICC’s crisis of authority. Besides merely refraining from sanctioning the Court, the Parties to the Statute must actually enforce the Court by carrying out arrest and surrender operations. Complementarity should be more rigorously monitored so that superficial domestic proceedings cannot be used to shelter powerful actors. Cooperation and funding should be dealt with transparently. Lastly, wider universality and more profound interaction with the concerns of the Global South are necessary for the ICC to be considered as a fair institution.
None of these steps will immediately abolish power asymmetries. However, they have the potential to slow down coercion and safeguard institutional space for adjudication. International criminal justice cannot be sustained as a universal project whose functioning is dependent on the tolerance of the powerful. It can, however, endure if power is made to pay a price for undermining the law.
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