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.

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.