AFSC et al. v. Donald J. Trump et al.

On February 6, 2025, President Donald J. Trump issued Executive Order 14203, Imposing Sanctions on the International Criminal Court, declaring a national emergency with respect to any effort by the International Criminal Court (ICC) to investigate or prosecute U.S. nationals and those of certain U.S. allies and mentioning the investigations into the situations in Afghanistan and Palestine. 

The executive order allows the U.S. government to impose sanctions, including asset freezing and travel bans, on foreign nationals who have “directly engaged,” “materially assisted,” or “provided financial, material, or technological support for, or goods or services to or in support of,” ICC investigations or prosecutions of U.S. nationals or nationals of allied countries.

To date, the following persons have been sanctioned (“designated”) under the order: the former ICC Prosecutor and the two ICC Deputy Prosecutors, eight ICC judges, a United Nations Special Rapporteur, and three leading Palestinian human rights organizations. 

U.S. individuals and organizations that provide support to designated persons—including education, advice, information, analysis, legal assistance, or other services—may face serious civil or criminal penalties. Foreign individuals and organizations that provide such support may themselves be sanctioned.

Four prominent U.S.-based human rights organizations—the American Friends Service Committee (AFSC), the Center for Constitutional Rights, Human Rights Watch, and the Open Society Institute, a part of the Open Society Foundations—that have worked closely with the ICC, the Special Rapporteur and/or the designated human rights organizations filed this case challenging the sanctions regime in the U.S. District Court for the Southern District of New York.

The lawsuit argues that the sanctions regime is unlawful. In particular, the plaintiffs claim that the President went beyond the powers granted by law when issuing the order because there is no national emergency, because the order conflicts with other acts of Congress, and because it violates international law. They also contend that the designations issued under the order violate federal administrative law and that the sanctions regime violates their constitutional rights to free speech, free association, and due process. Plaintiff AFSC also argues violation of its religious freedom. The plaintiffs request that the sanctions regime be struck down as a whole.

International Criminal Court and the United States

The ICC is an international tribunal based in The Hague, established by the Rome Statute. It has jurisdiction over individuals accused of war crimes, crimes against humanity, and genocide. States that have joined the Rome Statute—currently 125 states worldwide—consent to the court’s jurisdiction over crimes committed on their territory or by their nationals. The court may also exercise jurisdiction when the United Nations Security Council refers a situation to it.

The ICC is a court of law with an independent office of the prosecutor and procedures designed to ensure fair trials and to protect the rights of both accused persons and affected states. The ICC’s founding treaty also recognizes a role for victims, who can be heard in cases that concern them and seek reparations, including through representation by legal counsel.

Although the United States is not a party to the Rome Statute, it has supported numerous ICC investigations and prosecutions, including in the Democratic Republic of the Congo, the Central African Republic, Libya, Mali, Darfur, Uganda, and Ukraine. The sanctions stand in sharp contrast to the United States’ long history of support for international criminal justice, including through the Nuremberg trials, the tribunals for Rwanda and the former Yugoslavia, and the negotiations that led to the adoption of the Rome Statute.

The International Criminal Court and Civil Society

Civil society played a crucial role in the negotiations leading up to the adoption of the Rome Statute and the creation of the ICC. In particular, civil society organizations advocated for a permanent, independent, impartial, and effective criminal court capable of delivering justice for victims of genocide, crimes against humanity, and war crimes.

Since the ICC’s establishment, civil society has continued to support its work in a variety of ways. This has included monitoring trials and disseminating accurate information about the ICC, sharing documentation and analysis with the Office of the Prosecutor, and advocating for state support and cooperation. Some organizations have also facilitated victim participation in ICC proceedings, including by providing legal representation in court. Others have appeared before ICC judges as amici curiae, offering expert legal perspectives on issues before the judges.

Much of this work has been carried out through coalitions and working groups. Collaboration among civil society organizations has been central to advancing the international criminal justice project and has proven particularly effective because different organizations contribute their unique expertise, networks, and strengths. Meaningful engagement with other civil society groups, as well as with the ICC, the United Nations, states parties, and other stakeholders, relies on the ability to exchange information and services freely.

The sanctions regime has had a significant chilling effect on civil society efforts to advance justice for victims of mass atrocities. Many civil society organizations and individuals now hesitate to engage with the ICC or sanctioned organizations out of concern that they could face penalties or become subject to sanctions themselves. This has constrained both individual advocacy and collaborative work across civil society networks.

Facts

The executive order creates a framework for imposing sanctions on individuals and organizations that engage with or support the ICC. The President declared a national emergency in response to ICC efforts to investigate, arrest, detain, or prosecute U.S. nationals and nationals of allied countries that have not accepted the ICC’s jurisdiction.

The executive order specifically identifies the ICC’s investigations concerning Afghanistan and Palestine, including the issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant.

The President invoked the International Economic Emergency Powers Act (IEEPA), pursuant to which he claimed power to authorize sanctions. IEEPA has historically been used for accused terrorists, weapons proliferators, and human rights abusers, among others.

The executive order’s annex designates former ICC Prosecutor Karim Khan. It also authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate other foreign individuals or organizations that directly engage, materially assist, sponsor, or provide support to the ICC activities covered by the order.

The U.S. government has since designated the ICC’s two deputy prosecutors and a senior trial lawyer from the Office of the Prosecutor (OTP), nine ICC judges, including the ICC president, the UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory, and three Palestinian human rights organizations (Al-Haq, Al Mezan Center for Human Rights, and the Palestinian Centre for Human Rights).

The sanctions have caused significant harm to designated individuals and organizations, including cutting off their access to the U.S. financial system, provoking ripple effects over virtually every financial transaction.

More broadly, the sanctions have impaired efforts to ensure accountability for the world's most serious crimes and have caused significant harm to the global human rights community and the international justice ecosystem. The regime affects all of the court’s investigations and prosecutions.

This is not the first legal challenge to the executive order (see Iverson v. Trump, Smith v. Trump, Rona v. Trump, L.C. v Trump, Judge Prost v. Trump, and DAWN v. Trump). Courts have found that the executive order imposes unconstitutional limits on speech on those assisting the ICC. To date, however, the relief granted has been limited to protecting the specific plaintiffs bringing the challenge. This case argues that, in order to enjoy full redress, the ICC sanctions regime must be invalidated in its entirety.

Arguments

The Executive Order Exceeds the President’s Authority

The plaintiffs argue that the executive order and resulting designations (the sanctions regime) exceeds the authority granted by Congress because a) there is no national emergency as required under the IEEPA, b) the sanctions regime conflicts with other acts of Congress, including the American Service-Members’ Protection Act (ASPA), and c) it violates U.S. obligations under international law in a way that Congress has not authorized.

Lack of National Emergency and Excess of Authority Under IEEPA

The executive order relies on powers that Congress delegated to the President to take certain actions during a national emergency, particularly where there is an urgent need to act before Congress can pass legislation. Because emergency powers are exceptional, they may only be used in the circumstances authorized by Congress. Under IEEPA, the President may impose sanctions in response to an “unusual and extraordinary” threat to the United States.

The plaintiffs argue that these requirements are not met. The ICC’s exercise of jurisdiction over crimes allegedly committed on the territory of a state party to the Rome Statute by nationals of states that are not a party to that treaty is neither unusual nor extraordinary. There is nothing new about the ICC, the scope of its jurisdiction, or its efforts to end impunity for international crimes, including its investigations concerning Afghanistan and Palestine. Both are parties to the Rome Statute, and since the treaty entered into force in 2002, it has expressly permitted the ICC to investigate crimes committed on the territory of a state party, regardless of the perpetrator’s nationality. The U.S. has continuously objected to this framework when ICC investigations might expose U.S. nationals or allies, while at the same time supporting other ICC investigations involving nationals of non-state parties, including in Sudan, Libya, and Ukraine. 

Congress Has Not Authorized Sanctions to Address the ICC

The plaintiffs also argue that the sanctions regime conflicts with ASPA, a law Congress enacted to address any risks concerning the possibility that the ICC could exercise jurisdiction over nationals of non-state parties. ASPA lists the actions authorized in such circumstances: providing legal representation and other legal assistance, submitting exculpatory evidence, and appearing in court to defend U.S. interests. The imposition of sanctions was not only not contemplated in ASPA, but the type of inducements to influence ICC decision-making envisaged in the executive order were expressly forbidden.

Violations of U.S. Obligations Under International Law 

The sanctions regime violates several rules of international law, which Congress did not authorize.

First, the sanctions regime is inconsistent with the obligation of the U.S. to cooperate with the UN and to abide by UN Security Council resolutions, particularly in situations referred to the ICC by the UN Security Council, such as Sudan and Libya.

Second, the sanctions regime violates the privileges and immunities afforded to ICC and UN officials under customary and treaty law.

Third, the regime violates the international legal obligations of the U.S. with respect to the investigation, prevention, and punishment of international crimes—efforts that ICC states parties have collectively entrusted to the ICC. This obligation is reflected in instruments such as the Geneva Conventions, the Genocide Convention, and customary international law.

Finally, the sanctions regime undermines the independence of judges, prosecutors, and UN officials by targeting them personally in an effort to influence their decision-making. This is inconsistent with the general principle of law requiring respect for judicial and prosecutorial independence and violates the U.S. obligation to ensure the right to a fair trial.

Violation of the Administrative Procedure Act

The plaintiffs claim that the designations violate the Administrative Procedure Act because they are arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.

First, the designations are arbitrary and capricious because they are outside the framework established by Congress to address ICC investigations and prosecutions. In addition, the government has not presented substantial evidence of the designated persons’ direct engagement in the prohibited activities. Further, the government failed to consider the impact that the designations would have on the international regime for accountability for international crimes, including with respect to investigations that the U.S. supports. 

Furthermore, the designations are an abuse of discretion because their evident purpose is to target the personal, including financial, interests of judges, prosecutors, and UN officials as a means of pressuring them into disregarding their oaths of office, and to silence and punish civil society groups and lawyers for their efforts to support victims of serious international crimes in accessing justice. The designations are a gross abuse of the sanctions regime, which has to date been used to target alleged terrorists, narco-traffickers, weapon proliferators, and human rights abusers, all of whom bear no resemblance to the judges, prosecutors, UN officials, and human rights organizations targeted under the ICC sanctions regime. The fact that the designations aim to obstruct the investigation and prosecution of the worst crimes known to humankind makes the abuse of discretion undeniable.

Finally, the designations are contrary to law. As described above and below, they exceed statutory authority under IEEPA, and violate the first and fifth Amendments as well as international law. They are also contrary to law because they regulate the exchange of personal communications “which [do] not involve a transfer of anything of value” and the import or export of “information or informational materials,” in violation of two IEEPA exceptions. 

Violation of First Amendment Rights

The plaintiffs argue that the sanctions regime unlawfully restricts their rights under the first amendment of the U.S. Constitution to engage freely in speech, association, and expressive grant-making.

The sanctions regime restricts speech based both on its subject matter (content) and on the views expressed (viewpoint). Because these restrictions affect constitutional rights to free speech, they must satisfy the highest level of judicial review, known as “strict scrutiny.” Under this standard, the government must show that the restrictions serve a compelling interest and are narrowly tailored to achieve that objective.

Here, the government cannot demonstrate a compelling interest because there is no genuine national emergency. Even if such an interest existed, the restrictions are far broader than necessary to achieve it. The government’s stated objective is to shield nationals of non-state parties from ICC prosecution. However, the sanctions sweep far wider, prohibiting any kind of services to, for the benefit of, or from designated persons—regardless of whether those services are connected to the situations in Afghanistan and Palestine, or even to the ICC at all.

Unconstitutional Restrictions on the Plaintiffs’ First Amendment Rights

The plaintiffs contend that two main categories of speech are affected:

1. the right to engage in speech which constitutes “services by, to, or for the benefit of” designated individuals and organizations and “the receipt” of such speech-based “services from” those entities. The plaintiffs have refrained from such activities due to fear of enforcement penalties; and
2. the right to associate with the designated entities and other organizations and individuals. Indeed, individuals and entities that have not themselves been designated and that would normally associate themselves with the plaintiffs, have stopped attending meetings, speaking at events, and engaging in strategy discussions because they fear penalties (those based in the U.S.) or designation (those based abroad). 

Unconstitutional Restrictions Beyond the Plaintiffs

The sanctions regime should be declared unconstitutional “on its face,” i.e., beyond its application to the plaintiffs, because the speech prohibitions are overbroad. A law is unconstitutionally overbroad if its unconstitutional applications substantially outweigh its constitutional ones, which is the case here. The restrictions on speech are vastly overinclusive given its indiscriminate impact on speech-based services that are unrelated to the purported government interest. The order’s unconstitutional vagueness (see below) expands the reach of its unconstitutional applications. These expansive restrictions have imposed a palpable chill not just on the plaintiffs, but also across many individuals and entities in a variety of contexts.

Violation of the Religious Freedom Restoration Act

Plaintiff AFSC’s human rights advocacy and humanitarian work is animated by religious convictions, but that work—as it concerns human rights violations in the Palestinian territory in partnership with designated entities—is seriously limited by the sanctions regime. AFSC therefore argues that the executive order and designations hinder the exercise of religion by subjecting it to potential civil or criminal penalties for engaging in religiously motivated activities. 

Violation of Due Process

The executive order violates constitutional due process requirements because it is too vague. A measure is considered unconstitutionally vague if it does not give ordinary people fair notice of what conduct is prohibited.

In particular, the meaning of the term “services” is vague and ambiguous, as is the meaning of “for the benefit of.” So, too, is the distinction between providing services “to” and providing services “for the benefit of” a designated person. Such vagueness makes it difficult to determine what conduct is permitted and what is prohibited, contributing to the regime's broad chilling effect.

Relief

The plaintiffs request that the sanctions regime be struck down in its entirety.

An ultra vires executive order cannot be implemented or enforced. Separately, as explained, the designations made under the order are arbitrary and capricious, abuses of discretion, and contrary to law. The defendants should therefore be enjoined from implementing or enforcing all existing designations or making new ones.

Given the unconstitutional application of the sanctions regime, an injunction barring defendants from enforcing civil and criminal penalties against plaintiffs alone would be insufficient to fully restore plaintiffs' exercise of their first amendment rights. The plaintiffs’ constitutional injuries include their inability to engage with partners, associates, and interlocutors due to the order’s broad chilling effect.

Complete relief therefore requires enjoining the defendants from implementing the sanctions regime as a whole.

Open Society Justice Initiative Involvement

The Open Society Institute, of which the Open Society Justice Initiative is a program, is co-plaintiff in the case and is represented by the law firm Foley Hoag LLP.