The Power and Responsibility of the EU to Protect the ICC from US Sanctions

[Jens Iverson is an assistant professor of international law at Leiden University] 

The Trump Administration has sanctioned ICC high officials, UN officials, and human rights groups. There is concern this is not the end of the US bullying — without pushback, further sanctions against individuals, organizations, and the ICC itself may continue throughout President Trump’s term and beyond.  States Parties face a choice: continue to capitulate to the bullying of the US, or meet the challenge posed by the sanctions, past and future, and respond appropriately.  Which choice they make will reveal the actual values of the states who as a matter of law are pledged to combat atrocity and impunity.

There have been some responses to the sanctions so far, and it is hard to know what is happening beyond the scenes.  A 22 August 2025 letter from civil society lists reasons why the sanctions against ICC Judges and Deputy Prosecutors and previous sanctions are objectionable and collect responses from civil society, States Parties, the EU, and the UN.  The European Parliament’s response is of particular note, calling on all EU institutions and Member States to take all necessary measures to support and shield the Court, including through the activation of the Blocking Statute.  This call is valuable, and could be amplified.

States and International Organizations can respond substantively to the US sanctions if they choose to.  One good place to organize a response is the EU, where the ICC is seated and many of the states most able to stand up to US coercion are located.  The EU has its own objective international legal personality.  It is the second largest economy.  It is an ideal place to solve the collective action problem facing supporters of the ICC (and international legal institutions in general): big enough to stand up to a bully, while potentially integrated enough to respond coherently. 

The EU has felt bullied before, not only by the US, but by China.  After China bullied Lithuania regarding relations with Taiwan, the EU built a legal tool: the Anti-Coercion Instrument, (AKA “the Big Bazooka”) which is intended as an deterrent to avoid being bullied, is an example of how states can use retorsion in response to the US abuse of its position at the center of the international financial system.  Using the Anti-Coercion Instrument, the European Commission can “impose punitive sanctions on individuals, companies and countries [including] tariffs and quotas; the restriction of intellectual property rights; and limiting access to the bloc’s financial markets, public procurement and E.U.-funded research programs.”  It has not been used.  It is intended to deter “economic coercion” including “refusing (or threatening to refuse) authorisation needed to do business” — arguably including authorization needed to use the US financial system. The EU’s official line is that, as it is meant as a deterrent, “The instrument will, therefore, be most successful if there is no need to use it.”  But if there is not at least the threat of using it, its deterrent effect is extremely limited.

There has been some discussion of the EU using the Extraterritoriality (Blocking) Statute in order to protect “EU operators engaged in lawful international trade and/or movement of capital, as well as related commercial activities, against the effects of the extra-territorial legislation.”  The EU has used this with respect to U.S. measures concerning Cuba and Iran.  The blocking statute can be used to nullify the effect in the EU of any foreign court ruling based on the foreign laws and allow EU operators to recover in court damages caused by the extra-territorial application of the specified foreign laws.  This may not be the best tool for the job, but it should be kept at the ready in case circumstances call for it.

EU members should make clear to the US that the Anti-Coercion Instrument and the Blocking Statute will be used to shield the ICC and European operators and to cause pain for the US should the bullying continue.  These are just examples of existing tools and obligations that can be deployed and invoked.  New tools can be developed, and EU states and non-EU states can adopt their own versions of these instruments.  

Beyond legal steps, the EU can continue to develop and provide European-based tools less subject to US bullying.  These include the ongoing effort to provide the ICC with Open Desk, a German-developed open source software, part of the European Commission supported Digital Commons European Digital Infrastructure Consortium (EDIC) that will also work in key areas such as AI, cloud computing, cybersecurity, and social networks.  

The EU’s Common Foreign and Security Policy’s aims are to maintain peace, strengthen international cooperation and security, and consolidate democracy, the rule of law, human rights, and the principles of international law. Accordingly, the EU has committed in the Agreement between the EU and the International Criminal Court to an “Obligation of cooperation and assistance” (Art. 4) and the obligation that “Upon request of the Court, the EU shall, subject to availability, provide for the purposes of the Court, such facilities and services as may be required[.]” (Art. 14).   

The US sanctions against ICC high officials, as well as UN officials, and human rights groups, are tools originally designed as an intelligent way to go after terrorists and drug dealers non-violently.  Now, the US is essentially telling the large majority of states of the world that while they may technically have the ability to ratify treaties, create international organizations, and generally act with sovereign autonomy, in reality their ability to do so is subject to the whims of whoever is in charge of the executive branch of the US federal government at the moment, unfettered by laws, reason or review.  The reason why the US has this effective power is not because states have agreed to give the US their sovereignty, but because the US has been seen as a trustworthy state to do business, under which the rule of law was generally beyond political or partisan exploitation.  Using that privileged position to go after those on the outermost periphery of power, terrorist and drug dealers that threatened global order, was unobjectionable to most states.  When the EU began to be bullied by China with regards to Taiwan, and the US with regards to states such as Iran, the EU began to build the tools it needed to guard its strategic autonomy.  Now is the time to use the tools and policies they have built.

What if the Trump Administration responds?  Trump famously threatened that if states raised tariffs in response to his tariff increases, he would further respond, trying to establish what is called in the military domain “escalation dominance,” where every possible response by an adversary can be matched with a credible escalating response.  Not every state caved into these threats: China and Canada for example immediately retaliated.  A lucrative approach to financial markets has relied on Trump ultimately backing down when faced with any substantial pressure, the so called “TACO trade,” meaning Trump Always Chickens Out.  It is reasonable for different states to take different approaches to tariffs, given that reprisal tariffs are essentially taxes on imports that may harm their own economies.  But the Trump Administration’s bullying with respect to the ICC is different.  The ICC has no active investigations into US conduct.  It is no real threat to the US.  The attempt of the US to destroy a central institution of international order (to score political points at home) strikes at the heart of what the EU and States Parties to the Rome Statute claim to stand for.  

Supporters of the ICC can save it if they act as though the project of the ICC really matters to them.  The Trump Administration’s approach to the ICC has echoed the maxim frequently but dubiously attributed to Lenin: “You probe with bayonets: if you find mush, you push. If you find steel, you withdraw.”  There was no substantive response after the first Trump Administration sanctioned ICC officials.  He returned to his practice of sanctioning ICC officials under his second administration, and the response was mush.  The Trump Administration has pushed repeatedly, only to find mush.  If States Parties value the project of justice for victims of atrocities, and their own sovereign ability to set up and sustain independent international organizations, they will have to find their steel.