Kimberly Prost 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, which declared a national emergency in relation to the International Criminal Court’s (ICC) investigation of U.S. and Israeli nationals. In particular, EO 14203 is being used by the Trump Administration as a means of objecting to the Court’s investigations into alleged mass atrocities in Afghanistan and Palestine.
The Executive Order authorizes sanctions, including asset blocking and travel restrictions, on foreign nationals who have participated in, assisted, or otherwise supported ICC investigations and prosecutions of U.S. nationals and nationals of ally countries. Pursuant to the order, several ICC officials have been designated and are now under sanctions, including eight ICC judges, the ICC Prosecutor and Deputy Prosecutors, a United Nations Special Rapporteur, and three leading Palestinian civil society organizations.
Three of the designated judges—Judges Kimberly Prost (Canada), Solomy Bossa (Uganda), and Reine Alapini-Gansou (Benin)—have challenged the Order and their designations pursuant to it before the U.S. District Court for the Southern District of New York. They seek a declaration that the Executive Order exceeds the President’s statutory authority, violates the Fifth Amendment of the U.S. Constitution, and contravenes the Administrative Procedure Act. They also seek injunctive relief preventing enforcement of the order.
The 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 ratified or acceded to 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 robust procedural safeguards that protect the rights of accused persons and interested states. The ICC’s founding treaty also recognizes a role for victims, who can be heard in cases that concern them.
According to the Rome Statute, judges, who are elected by the treaty’s Assembly of States Parties, must demonstrate “high moral character, impartiality, and integrity” and “possess the qualifications required in their respective states for appointment to the highest judicial offices.” The statute also states that judges “shall be independent in the performance of their duties” and “shall not engage in any activity which is likely to interfere in their judicial functions or to affect confidence in their independence.”
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.
Among the current ICC investigations are two to which the U.S. government objects, concerning alleged crimes in Afghanistan and Palestine.
Facts
The Executive Order establishes a framework for imposing sanctions on individuals who have directly engaged with, or provided material support to, the ICC. Invoking the National Emergencies Act (NEA), the President declared a national emergency in response to ICC efforts to investigate, detain, or prosecute U.S. nationals and nationals of allied states that have not consented to ICC jurisdiction.
The Trump administration specifically objects to the ICC’s assertion of jurisdiction over U.S. and Israeli personnel, including its issuance of arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant.
The President also invoked the International Economic Emergency Powers Act (IEEPA), pursuant to which he claimed power to authorize sanctions. Historically, the use of IEEPA has been reserved for accused terrorists, weapons proliferators, or human rights abusers, among others.
The Annex to the Order designates ICC Prosecutor Karim Khan. The order further authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate additional foreign persons who engage in, assist, or provide support to relevant ICC activities.
The U.S. government has subsequently designated the ICC’s two deputy prosecutors, eight ICC judges (from Uganda, Peru, Benin, Slovenia, France, Canada, Georgia, and Mongolia), the United Nations Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territories since 1967, and three Palestinian human rights organizations.
The three judges bringing this action were designated due to their involvement in judicial proceedings concerning alleged crimes in Afghanistan (Judges Prost and Bossa) and Palestine (Judge Alapini-Gansou). All have served as ICC judges since March 2018 and previously held distinguished judicial positions at home and aboard.
While the sanctions target specific ICC investigations and prosecutions, in practice they affect all of the investigations and prosecutions being undertaken by the court. Moreover, they also impede a designated individual’s ability to conduct their personal lives. The judges have been cut off from ordinary financial services, both professional and personal, including bank accounts, credit cards, online payment platforms, and insurance-related services. In addition, the judges’ U.S.-linked assets have been blocked, and the sanctions have severely restricted their ability to participate in U.S.-based professional opportunities. U.S. persons are prohibited from conduct that could be construed as serving a “benefit” to the judges, and violations carry criminal penalties, including imprisonment of up to twenty years. Despite these extraordinary pressures, the judges have continued to perform their work, adjudicating cases impartiality and objectively, in accordance with their oath of office.
This is the fifth lawsuit brought to challenge Executive Order 14203, but the first case that specifically challenges the designation of ICC judges. In prior cases (Iverson v. Trump, Smith v. Trump, Rona v. Trump, and L.C. v. Trump), courts ruled that the Executive Order violated the First Amendment of the U.S. Constitution because it imposes impermissible free speech limitations on those assisting the ICC.
Arguments
The Executive Order Exceeds the President’s Authority
The plaintiffs argue that the Executive Order exceeds statutory authority because it a) violates U.S. obligations under international law in a way that has not been authorized by Congress; b) contradicts other acts of Congress, in particular the American Service-Members’ Protection Act (ASPA); and c)exceeds the President’s authority under both the NEA and IEEPA.
The Order Violates U.S. Obligations Under International Law
The plaintiffs assert that the measures undermine cooperation with the United Nations, particularly in situations referred to the ICC by the UN Security Council, such as Sudan and Libya. They also state that the sanctions violate obligations concerning privileges and immunities of ICC officials.
Further, the plaintiffs contend the regime contravenes the duty not to interfere with other States’ efforts to investigate and prosecute 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.
Additionally, the plaintiffs argue that the sanctions undermine judicial independence by targeting judges’ personal interests in an attempt to influence their decision-making, in violation of a general principle of law also reflected in multiple treaties.
The Order Contradicts ASPA
Congress enacted ASPA to address the risk that U.S. persons and nationals of other countries, not party to the Rome Statute, could be investigated and prosecuted by the ICC. Congress subsequently amended ASPA to allow the U.S. to support certain ICC investigations.
The imposition of sanctions is not among the actions authorized by Congress. ASPA authorizes the president only to take the following actions: to provide legal representation or other legal assistance, to present exculpatory evidence, and to defend U.S. interests through appearance before the ICC. While ASPA authorizes the president to use “all means necessary” to obtain the release of certain protected persons, that circumstance has not materialized here. Even then, ASPA expressly withholds authority to use inducements to influence ICC-related action. That limitation reinforces the conclusion that Congress did not authorize the president to deploy financial measures to interfere with ICC proceedings, much less against ICC officials and those who support the court’s work.
The Order Exceeds the President’s Authority Under Both the NEA and IEEPA
NEA establishes the framework for declaring national emergencies. Because such declarations grant extraordinary powers, they are intended for genuine emergencies and the president may act only pursuant to statutory authority. IEEPA, which authorizes the president to impose sanctions in response to an “unusual and extraordinary” threat, is one such statute.
The plaintiffs contend that there is no national emergency and that there is nothing unusual or extraordinary about the ICC’s ability to exercise jurisdiction over alleged international crimes committed on the territory of Afghanistan and Palestine, since both Afghanistan and Palestine are ICC States Parties. The Rome Statute—in force since 2002—expressly permits the court to exercise jurisdiction over crimes committed on the territory of a State Party, regardless of the nationality of the perpetrator. This framework is longstanding and the U.S. has continuously objected to it when it could expose U.S. nationals or allies to ICC investigations, while at the same time supporting ICC investigations involving nationals of non-party States, including in Sudan, Libya, and Ukraine.
The Executive Order Violates the Fifth Amendment to the U.S. Constitution
Two of the plaintiffs in this case had their U.S. bank accounts blocked pursuant to the sanctions. The plaintiffs argue that the sanctions violate the Fifth Amendment to the U.S. Constitution in two respects.
First, the freezing of U.S.-based assets amounts to deprivation of property without due process. The affected plaintiffs were not provided with prior notice to appraise them of the allegations and provided an opportunity to be heard. Second, the blocking of those bank accounts constitutes the taking of private property without just compensation.
The Executive Order Violates the Administrative Procedure Act
The plaintiffs argue that their designations are unlawful under the Administrative Procedure Act because they are arbitrary, capricious, an abuse of discretion, and not in accordance with law. For example, the Trump administration has not presented specific evidence to support the designations. In addition, the administration 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. Most worryingly, the sanctions seek to target the judges’ personal, including financial, interests in order to pressure them into disregarding their oaths of office, in clear violation of the rule of law.
Open Society Justice Initiative Involvement
The Justice Initiative provides pro bono legal representation to Judge Prost in this case along with the law firm Foley Hoag LLP, who also represents Judges Bossa and Alapini-Gansou. In providing legal representation to the judges, the Justice Initiative and Foley Hoag operate under Office of Foreign Assets Control (OFAC) general license authorizing U.S. persons to provide legal services to designated persons in certain U.S. legal proceedings, including to initiate and conduct legal proceedings in U.S. courts (31 C.F.R. § 528.506(a)).
