The contentious debate over President Donald Trump’s sanctions on the International Criminal Court (ICC) took a new turn recently when a federal judge’s preliminary injunction (PI) blocked enforcement of the sanctions against two U.S. citizens in specified circumstances. Trump’s Executive Order (EO) 14203, titled “Imposing Sanctions on the International Criminal Court,” authorizes sanctions in response to the ICC’s assertion of jurisdiction over nationals of the United States and Israel, neither of which has consented to ICC jurisdiction.
Contrary to misleading media headlines, the judge’s ruling did not block the sanctions already imposed by Trump on six foreign persons located outside the United States: International Criminal Court (ICC) Prosecutor Karim Khan, UN Special Rapporteur Francesca Albanese, and four ICC judges. Those sanctions, which remain in place following the PI, have reportedly severely hindered the ICC’s work and resulted in the sanctioned persons losing access to their email and bank accounts.
Judge Torresen’s narrow ruling
The PI issued by federal district court judge Nancy Torresen on July 18 barred enforcement of EO 14203 only against the two named plaintiffs, Matthew Smith and Akila Radhakrishnan, both of whom are U.S. citizens located in the United States, and only in response to any provision by these plaintiffs “of speech-based services to the ICC.”
Crucially, nothing in the PI blocks the EO 14203 sanctions already imposed on the six foreign persons located outside the United States. Nor does the PI stand in the way of the Trump administration imposing EO 14203 sanctions on additional such foreign persons which the administration determines have directly engaged in, or have materially supported, the ICC’s assertion of jurisdiction over nationals of the United States and Israel.
Details of the preliminary injunction
Judge Torresen issued the PI upon determining that the two plaintiffs “have established likely success on the merits of their First Amendment challenge to” the EO’s section 3(a), which prohibits “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to section 1 of this order.”
Section 1 of the EO explicitly authorizes the imposition of primary sanctions only on a “foreign person,” such as Khan, who is formally determined to be directly engaged with the ICC taking action against nationals of the United States and Israel.
However, the Justice Department, in a May 16 submission to Judge Torresen, specified that as a result of the section 1 sanctions imposed on Khan on February 6, section 3(a) means that “Plaintiffs, two individual U.S. citizens based on the United States, may not deal in the property or interests in property of [Khan], including by providing goods, funds, or services to him or for his benefit or receiving the same from him.” Albanese and the four ICC judges were not referenced because the sanctions were not imposed on them until after May 16.
Although the U.S. government has given no indication that it plans to prosecute the plaintiffs, they nevertheless sought injunctive relief, expressing concern that they could in theory be penalized pursuant to section 3(a) if they were to provide speech-based services to the ICC. In seeking this relief, Smith said he had regularly provided the ICC with evidence of crimes against the Rohingya people, and Radhakrishnan said she had regularly advised the ICC regarding gender-based violence, particularly in Afghanistan. Both claimed that they immediately halted their activities with the ICC after the issuance of EO 14203, “for fear of incurring penalties.”
Implications for enforcement against other U.S. citizens and foreign persons
While Judge Torresen’s injunction protects only the two named plaintiffs, if other judges adopt Torresen’s reasoning then other U.S. citizens will similarly prevail on challenges relating to those U.S. citizens providing speech-based services to the ICC. There is at least one other such case currently pending, the case of Rona v. Trump.
Torresen’s reasoning is similar to that of another federal district court judge in a 2021 case, in which four U.S. citizens received an order preliminarily enjoining the first Trump administration from enforcing against them, in analogous circumstances, a nearly identical section 3(a) in EO 13928 titled “Blocking Property of Certain Persons Associated with the International Criminal Court.” That EO was rescinded by President Biden in April 2021, after which the plaintiffs voluntarily withdrew their suit.
Judge Torresen clearly did not invalidate EO 14203 or restrict its enforcement against foreign persons outside the United States. All of those sanctioned under the EO thus far—Khan, Albanese, and the four ICC judges—remain sanctioned. All six are foreign persons located outside the United States.
The reasoning of Judge Torresen’s PI does signal a First Amendment issue with enforcing section 3(a) of EO 14203 against U.S. citizens, especially those located in the United States, who provide “speech-based services to the ICC.” In contrast, as the Supreme Court stated in a 2020 case, “foreign citizens outside U. S. territory do not possess rights under the U. S. Constitution” (the Court noted that in contrast “foreign citizens in the United States may enjoy certain constitutional rights”).
As the policy debate about Trump’s ICC sanctions continues, both advocates and opponents of such sanctions should understand that nothing in Judge Torresen’s PI, or the reasoning behind it, undercuts the legal validity of the sanctions on those six foreign persons who have already been sanctioned pursuant to EO 14203. Nor does it raise questions about the legality of potential future EO 14203 sanctions on other foreign persons located outside the United States.
In the wake of Judge Torresen’s PI, the Trump administration is likely to impose additional EO 14203 sanctions on foreign persons located outside the United States, while continuing to refrain from enforcement against persons, and particularly U.S. citizens, located within the United States.
Orde Kittrie is a law professor at Arizona State University’s Sandra Day O’Connor College of Law and senior fellow at the Foundation for Defense of Democracies (FDD). He is also a member of CERL’s Advisory Council. Read his bio here.
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