National Security Abroad, Constitutional Rights at Home: United States Sanctions Against the ICC and the Ensuing Legal Challenges

[Gayane Khechoomian is a former Visiting Professional at the International Criminal Court in The Hague and an attorney admitted to practice in California and Illinois.]

Introduction

Last year, President Trump issued Executive Order (EO) 14203, “Imposing Sanctions on the International Criminal Court” (ICC), relaunching a sanctions regime with the stated purpose of protecting Americans and U.S. allies from certain exercises of its jurisdiction. Conversely, what followed was a string of lawsuits in the U.S. district courts alleging that the sanctions infringed on constitutional rights.

Relying primarily on the International Emergency Economic Powers Act, Executive Order 14203 renewed a sanctions policy first pursued in 2020 (later revoked by President Biden). The order, which referenced ICC investigations into U.S. personnel in Afghanistan, now includes actions taken against top Israeli officials. On its face, the policy specifically targets “foreign persons.” Interestingly, an early wave of litigation brought in 2020 and 2025 resulted in injunctive relief for its U.S. citizen plaintiffs on First Amendment grounds, though it left the broader constitutional validity of EO 14203 unresolved.

Following these initial legal challenges to the EO, the administration doubled down. Secretary of State Marco Rubio announced a campaign to “dismantle the threat” posed by the ICC for what the administration considered an encroachment on U.S. sovereignty and the targeting of U.S. personnel and political leaders of its allies. And in a sharp escalation, the administration is reportedly preparing to impose sweeping sanctions on the court itself, following which President Trump called on all ICC member states to withdraw from the ICC during his address to the United Nations (UN) General Assembly. The administration’s officials continue to urge U.S. allies to reject the ICC’s authority and aid in its dismantling.

Against this backdrop of national-security declarations, a new round of litigation raised a competing constitutional concern: the rights of Americans engaged in international justice through the ICC, and those who support them. The litigation added a new dimension to the landscape whereby sanctions directed at foreign persons could trigger consequences for familial, professional, and associational relationships in the United States.

In that regard, plaintiffs in the legal actions were not limited to the individuals targeted by the sanctions or even foreign nationals. Rather, many were American citizens or U.S.-based organizations adversely affected by a sanctions regime purportedly implemented to protect them. 

Executive Order 14203 and its Broadened Scope

At issue in the lawsuits is Executive Order 14203, which declared that “any effort by the ICC to investigate, arrest, detain, or prosecute” U.S. persons and nationals of non-consenting U.S. allies is considered an “unusual and extraordinary threat” to national security. Persons or entities that meet the criteria are named by the administration are then designated as “specially designated nationals” by the Office of Foreign Assets Control (OFAC) and subject to economic sanctions, according to which “[t]heir assets are blocked, and U.S. persons are generally prohibited from dealing with them.”

A number of individuals and entities have since been designated pursuant to the EO, including ICC prosecutors and judges, Palestinian human rights organizations, and a UN special rapporteur. Most recently, the administration expanded those designations to include the ICC President and a senior trial lawyer, describing it as part of an “unwavering mission to protect Americans from this sham of a court.”

However, in doing so, the administration’s policy takes on an unusually broad scope. At present, the class of persons the EO seeks to protect extends beyond U.S. citizens to include nationals of U.S. allies that have not consented to ICC jurisdiction, most notably, Israeli nationals. In fact, some of the designations include individuals whose efforts fall under the EO’s widened scope: former ICC Prosecutor Karim Khan, who sought warrants against sitting Israeli leaders in 2024; ICC Judge Reine Alapini-Gansou, who authorized ICC arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant; and UN Special Rapporteur Francesca Albanese, who advocated for prosecutions against Israeli nationals.

In practice, EO 14203 inhibits activities through which individuals engage with international justice institutions, namely the ICC. The resulting constitutional challenges to the sanctions policy underscore a familiar conflict: the curtailment of individual rights, including freedom of speech, due process, and association, in the name of national security.

Early First Amendment Challenges

Litigation immediately following the issuance of EO 14203 reached legal findings on First Amendment grounds. The courts concluded, either on the merits or at the injunction stage, that the restrictive nature of the sanctions raised First Amendment concerns, including barring plaintiffs ferom providing speech-based services to ICC prosecutions and investigations that were unrelated to the government’s interest in shielding protected persons. 

In Rona v. Trump, where the U.S. plaintiffs’ work included providing information and assistance to the ICC Office of the Prosecutor (OTP), the court reached the merits, holding that EO 14203 violated the plaintiffs’ First Amendment rights. Similarly, in Smith v. Trump, the court concluded that the U.S. plaintiffs, whose work included providing evidence, expertise, and advice to the ICC OTP, were likely to succeed on their First Amendment claims and granted a preliminary injunction while litigation continued. A third case, Iverson v. Trump, was voluntarily dismissed only after (and because) OFAC issued the U.S. plaintiff a license permitting his work as an ICC Prosecutor to continue, rendering his claims moot.

The prior revoked executive order imposing ICC sanctions in 2020 also triggered similar First Amendment claims. In Open Society Justice Initiative v. Trump, wherein an NGO and four law professor plaintiffs had engaged extensively with the ICC, the federal court enjoined the executive order’s enforcement against plaintiffs, finding it was overly burdensome of protected speech because, as the courts would later conclude in Rona and Smith, it restricted efforts to provide assistance to the ICC in prosecutions and investigations that the United States had endorsed.

These rulings, however, provided relief only to the particular plaintiffs before the courts and did not invalidate EO 14203 (or its 2020 predecessor). The broader constitutional validity of the sanctions regime therefore remained unresolved, and the latest wave of litigation placed that question back before the courts.

Challenges to Constitutional Burdens

In 2026, four additional lawsuits challenged the ICC sanctions regime in federal district courts, raising claims involving free speech, due process, association, and other constitutional and statutory protections (the latter which are not addressed in this article). These recent lawsuits continue to raise the fundamental question: to what extent does protecting U.S. and allied individuals from international investigations and prosecutions trump Americans’ own constitutional rights? 

The implications are significant: a U.S. person who provides prohibited support or services in furtherance of holding a foreign nation’s leadership or U.S. personnel accountable before the ICC may risk U.S. sanctions. Those restrictions reach further still, affecting Americans who maintain personal relationships with designated foreign nationals. That issue arose in L.C. v. Trump, brought by the minor U.S.-citizen daughter (L.C.) of designated UN Special Rapporteur Francesca Albanese and the child’s father. In granting a preliminary injunction, the district court found irreparable harm to L.C.’s constitutionally protected interests in L.C.’s familial relationship with her mother, L.C.’s freedom of travel (as “a constitutionally protected liberty interest”), and the family’s property interests in the United States. The court further concluded at the preliminary injunction stage that plaintiffs were likely to succeed on their First Amendment claim asserted on Albanese’s behalf, finding that the restrictions unnecessarily circumscribed protected speech.

In Prost v. Trump, by contrast, three ICC judges directly challenged their own designations. Although the constitutional injuries were asserted by foreign nationals, their allegations may have a corresponding effect on U.S. persons. The judges pleaded that the sanctions restricted their ability to engage with U.S.-based human rights NGOs, which in turn may restrict the ability of Americans to associate professionally with those judges, though that corresponding impact is not asserted by the Prost plaintiffs.

However, the more recent cases filed by several U.S.-based NGO plaintiffs in Dawn v. Trump and AFSC v. Trump, did assert such an impact resulting from the sanctions. Plaintiffs in DAWN plead that they stopped engaging in professional activities that may be considered as “providing support” to designated individuals and NGOs, in addition to halting work on ICC submissions because it implicated the United States and Israel in war crime investigations.

AFSC goes further. The AFSC plaintiffs alleged that the sanctions regime impermissibly prohibits speech also in support of non-designated individuals and entities, including those who “fear their own punishment” for engaging with the AFSC plaintiffs. This particular allegation highlights the EO’s chilling effect beyond designated individuals where the fear of violating the sanctions works to deter association and speech even when the activity at issue occurs between non-sanctioned individuals and entities.

The Prost, AFSC, and DAWN cases remain pending, leaving open the possibility of injunctive relief and broader determinations on the constitutional validity of the sanctions regime.

National Security Justification and First Amendment Scrutiny

The earlier litigation provides an indication of how the administration may defend EO 14203 against the pending First Amendment challenges. In both Rona and Smith, and later L.C., the government’s defense of its sanctions relied primarily on national-security and foreign policy interests in protecting U.S. and allied personnel from non-consensual ICC jurisdiction. However, none of the courts in these cases considered the government’s justifications sufficient to uphold the restrictions on speech, considering the restrictions to be overinclusive (see earlier discussion on First Amendment findings). 

Notably, the government invokes Holder v. Humanitarian Law Project, in which the Supreme Court afforded substantial deference to the government’s national-security judgment in upholding, against a First Amendment challenge, statutory restrictions on certain forms of coordinated support to designated foreign terrorist organizations. The extent to which Holder applies to EO 14203 presents a separate question, explored in greater depth here.

The early decisions suggest that a core First Amendment question going forward may be whether the government’s restrictions are adequately tailored to their stated national-security interests, or, as earlier courts found, restrict more speech than necessary to further those interests.

Whose Constitutional Rights? 

The more recent lawsuits also raise questions about who may bring constitutional challenges in the first place. L.C. involves the unusual issue of whether U.S. persons affected by sanctions may seek redress in court on behalf of sanctioned foreign nationals, an issue now before the D.C. Circuit. The District Court judge in L.C. concluded that the requirements for third-party standing to assert Albanese’s First Amendment rights had been satisfied and granted a preliminary injunction, finding that Albanese, a non-U.S. person, had substantial connections to the United States. The D.C. Circuit partially stayed the injunction pending appeal, putting the issue back before the courts, and Albanese, back on the list of designations. 

And in Prost, the sanctioned ICC judges directly asserted constitutional and statutory injuries resulting from their designations despite their status as foreign nationals. Pending in the Prost litigation is the administration’s challenge to the plaintiffs’ non-citizen standing and their Fifth Amendment (and other statutory) claims on the basis of national-security and foreign policy interests. The resolution of these issues will likely further define whose constitutional rights may be invoked when sanctions targeting foreign nationals have an impact in the United States. 

Final Thoughts

Executive Order 14203 reinstituted a sanctions regime to protect Americans and their allies against particular exercises of international jurisdiction. Yet, the ensuing legal challenges demonstrate that sanctions targeting foreign nationals and entities may burden the constitutional interests of both those targeted and U.S.-based persons engaging with them.

The question now is how far the President’s sanctions authority under the executive order may extend when it interferes with free speech, due process, and association. Ultimately, the answer may help define the limits of presidential sanctions authority where its exercise reaches constitutionally protected activity inside the United States.