ICC Judges Sue Trump Administration Over ICC Sanctions

NEW YORK—Three sitting judges of the International Criminal Court (ICC) have filed a lawsuit in the U.S. District Court for the Southern District of New York challenging the legality of Executive Order 14203, issued by President Trump. The case seeks declaratory and injunctive relief against sanctions which the U.S. government has imposed against the judges in connection with their decisions on ICC investigations into alleged crimes in Afghanistan and Palestine. 

The Executive Order declares a “national emergency” in relation to ICC investigations involving U.S. nationals and nationals of certain U.S. allies that have not consented to ICC jurisdiction, including Israel. It authorizes sanctions, including asset freezes and travel restrictions, against foreign individuals who have participated in or supported those investigations. 

The plaintiffs—Judges Kimberly Prost (Canada), Solomy Bossa (Uganda), and Reine Alapini-Gansou (Benin)—are among eight ICC judges whom the Trump administration has designated pursuant to the order. Each has served on ICC judicial panels addressing matters related to Afghanistan or Palestine. Others designated under the order include the ICC Prosecutor, both Deputy Prosecutors, the United Nations Special Rapporteur for Palestine (whose designation is the subject of a separate legal challenge), and three Palestinian human rights organizations. 

“Targeting international judges for carrying out their judicial duties is an unprecedented attack on judicial independence and the rule of law,” said James A. Goldston, executive director of the Open Society Justice Initiative. “This lawsuit seeks to reaffirm fundamental constitutional protections and the limits of executive power.” 

These sanctions are tantamount to a financial death penalty. The judges have had assets frozen in U.S. bank accounts, have been denied access to credit cards, online platforms, banking services and health insurance, and have been unable to participate in speaking engagements in the U.S.  

According to the lawsuit, the Executive Order and the designations are manifestly unlawful. The plaintiffs assert that the Executive Order exceeds statutory authority because it violates international law, contradicts other acts of Congress, and is based on a putative national emergency that does not exist. Judges Prost and Bossa also contend that the freezing of their assets violates due process in accordance with the Fifth Amendment of the U.S. Constitution, and all three judges assert that their designations are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.  

“These judges are being punished for discharging their judicial duties independently by rendering decisions with which the Trump administration disagrees. This is an effort to pressure them to render future decisions more to the administration's liking,” Goldston said. 

This is the fifth lawsuit brought to challenge Executive Order 14203. In prior cases, courts have found the order unconstitutional because it imposes impermissible free speech limitations on those assisting the ICC. This is the first time that ICC judges have gone to court themselves to challenge their designation. 

The Justice Initiative represents Judge Kimberly Prost in this action; Foley Hoag LLP serves as co-counsel. Judge Prost is venerated for her contributions to international justice. She has been a judge at the ICC since March 2018 and previously held numerous high-level legal positions in Canada and abroad, including within Canada’s Department of Justice, the Commonwealth Secretariat, and the United Nations. Legal representation is provided pursuant to the Office of Foreign Assets Control (OFAC) general license authorizing U.S. persons to provide legal services to designated individuals.