Gabor Rona and Lisa Davis 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, threatening severe sanctions, including monetary penalties, and imprisonment on persons who assist the International Criminal Court (ICC). The Executive Order impermissibly prohibits free speech, fails to provide adequate notice as to what conduct is prohibited, and exceeds its legal authority.
Those impacted by the Executive Order include U.S. persons, including U.S. entities, as well as foreign persons and foreign entities. This case focuses on the impact of the Executive Order on U.S. persons.
Two U.S. law professors, who have engaged extensively with the ICC, brought this case in the U.S. District Court for the Southern District of New York seeking a declaration that the Executive Order violates the First Amendment and Fifth Amendment Due Process Clause of the U.S. Constitution and unlawfully purports to restrict acts exempted from regulation under statutory law. The lawsuit also sought an order enjoining the Trump Administration from enforcing the Order.
On July 30, 2025, U.S. District Court Judge Jesse M. Furman granted plaintiffs a permanent injunction on the ground that the Executive Order violates their First Amendment rights. The court held that the Executive Order unlawfully imposes a content-based regulation of their speech-based activities that cannot survive strict scrutiny.
International Criminal Court and the United States
The ICC is an international court, based in The Hague, the Netherlands, created by the Rome Statute of the ICC. The ICC may exercise jurisdiction over the investigation and prosecution of individuals accused of war crimes, crimes against humanity, and genocide. States that ratify or accede to the Rome Statute—currently 125 States from every region of the world—consent to the ICC’s investigation and prosecution of crimes that have occurred on their territory or by their nationals. The ICC may also exercise jurisdiction where the United Nations Security Council, to which the U.S. is one of five permanent members, refers a situation to the Court.
The ICC has no independent enforcement power and relies on States to arrest individuals who are subject to its arrest warrants. While the U.S. is not a party to the Rome Statute, it has supported numerous investigations and prosecutions by the ICC, including in the Democratic Republic of the Congo, the Central African Republic, Libya, Mali, Darfur, Uganda, and Ukraine. The ICC is also investigating alleged crimes committed in Afghanistan and Palestine, which may implicate U.S. nationals and nationals of U.S. allies.
Facts
The Executive Order outlines a framework to impose sanctions on persons supporting the ICC. Under the Order, President Trump invokes the National Emergencies Act, declaring a state of emergency with respect to any effort by the ICC to investigate, arrest, detain, or prosecute U.S. nationals and nationals of ally countries that have not consented to ICC jurisdiction. President Trump objected, in particular, to the ICC’s assertion of jurisdiction on personnel of the U.S. and Israel and the issuance by the ICC of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant.
As the basis for enforcement of the Order, the President also invoked the International Economic Emergency Powers Act (IEEPA), pursuant to which the President claimed power to authorize sanctions on persons who violate the Order. Historically, the use of IEEPA has been reserved for accused terrorists, weapons proliferators, or human rights violators.
The Annex to the Order designates the ICC’s chief prosecutor, Karim Kahn. The Order also authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate additional foreign persons who, among other actions, have directly engaged, materially assisted or provided goods or services to or in support of any effort by the ICC to investigate, arrest, detain, or prosecute a protected person. The Order further permits the designation of any foreign person that engages with a designated person.
The U.S. government issued further designations after this case was filed. On June 5, 2025, the U.S. government designated four ICC judges – Solomy Balungi Bossa of Uganda, Luz del Carmen Ibáñez Carranza of Peru, Reine Adelaide Sophie Alapini-Gansou of Benin and Beti Hohler of Slovenia – because they had actively engaged in cases concerning U.S. nationals’ actions in Afghanistan and Israel’s actions in Palestine. Additionally, on July 9, 2025, it designated United Nations Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories since 1967, Francesca Albanese, for “having directly engaged with the [ICC] in efforts to investigate, arrest, detain, or prosecute nationals of the United States or Israel, without the consent of those two countries.”
The Order subjects U.S. persons who make any contribution or provision of funds, goods, or services by, to, or for the benefit of a designated individual to civil and criminal penalties. As a result, virtually any interaction with a designated person can result in the full enforcement of IEEPA’s penalties, including steep financial penalties and imprisonment.
Prior to the Executive Order, Plaintiffs provided education, training, advice, information and other forms of assistance to the ICC Prosecutor and his office. One of the Plaintiffs is a Special Adviser to the ICC Prosecutor. However, the threat of enforcement of IEEPA’s civil and criminal penalties pursuant to the Executive Order caused Plaintiffs to discontinue or refrain from continuing to undertake these activities.
This is not the first Executive Order issued by President Trump against the ICC. During his first term, he issued an almost identical order, Executive Order 13928 of 2020, Blocking Property of Certain Persons Associated With the International Criminal Court. One of the Plaintiffs in this action (among others) sued the government on similar claims to the ones alleged in the current lawsuit. In the prior case, a U.S. federal court preliminarily enjoined the defendants from enforcing the Order against the plaintiffs, finding that they were likely to succeed on the merits of their claim that the 2020 Executive Order constituted an unjustifiable restriction on their right to free speech.
Arguments
The Executive Order’s Restrictions on Speech Violate the First Amendment to the U.S. Constitution
The Executive Order impermissibly restricts First Amendment rights to freedom of speech by prohibiting speech-based services and assistance to the ICC Prosecutor. Under the First Amendment, the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” However, the Order restricts expression based on both content and viewpoint. In particular, persons are prohibited from engaging with Prosecutor Khan or his office in a way that may directly or indirectly benefit him, but they remain free to engage in expressive activities that endorse a contrary viewpoint. The Order also sweeps far wider than necessary to achieve the government’s purported interests, encompassing any effort to provide assistance to the ICC’s investigation and prosecution of all crimes, including in countries where the United States has endorsed ICC action.
The Executive Order Is Unconstitutionally Vague, Violating the Due Process Clause of the Fifth Amendment
Under the Fifth Amendment, clarity in the law “is essential to the protections provided by the Due Process Clause” and thus laws which regulate conduct must give fair notice to persons so they know what conduct is prohibited. The Executive Order violates due process protections because it includes the term “services by, to or for the benefit of” the designated individual (here, the ICC Prosecutor), but fails to provide the required notice as to which activities, specifically, are proscribed. Where, as here, the law restricts speech, clarity is demanded at an even higher degree, which the Executive Order fails to satisfy.
The Executive Order Is Ultra Vires under IEEPA
IEEPA contains a relevant exception to the President’s authority pursuant to a declaration of emergency. The President may not prohibit the import or export of “any information or informational materials.” However, the Executive Order attempted to do just that, by purporting to regulate and prohibit the provision of information and informational materials exported to the Netherlands, the ICC’s location, and transmitted telephonically or via the internet. As such, Plaintiffs argued that the Executive Order’s restrictions on speech exceeded the President’s authority under IEEPA. After the lawsuit was filed, OFAC issued implementing regulations that incorporate IEEPA’s exception for informational materials.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative is co-counsel in the case along with the law firm Foley Hoag, LLP.
