Imagine that, overnight, the President of the United States orders sanctions against sitting Supreme Court justices and senior federal prosecutors for pursuing cases against his political allies – freezing their bank accounts, cutting off their email and threatening anyone who works with them with criminal prosecution.
The political and legal aftershocks would be immediate. Lawsuits would be filed within hours, racing through the federal courts. Cable news would run wall-to-wall coverage, featuring law professors and soundbites on the separation of powers. And most people, across the political spectrum, would recognize the move for what it is: a president using the machinery of State to shield himself and his allies from accountability.
Now change the venue.
The judges aren’t in Washington; they’re in The Hague. The prosecutors aren’t investigating corruption; they’re investigating genocide, crimes against humanity, and war crimes. And the case isn’t hypothetical. On February 6, 2025, President Trump issued Executive Order 14203 granting himself the power to impose sanctions on individuals directly engaging “in any effort by the International Criminal Court (ICC) to investigate, arrest, detain, or prosecute” officials of the United States or certain allied countries.
On 20 August 2025, the US Department of State made its latest round of designations, issuing sanctions against two judges, Judge Kimberly Prost of Canada and Judge Nicolas Guillou of France, and two additional ICC prosecutors. This follows three previous waves of designations, imposing sanctions against the ICC Prosecutor Karim Khan, four sitting ICC judges, and the UN Special Rapporteur on the situation of human rights in the Palestinian territory. These ten lawyers are now on the U.S. Treasury’s Specially Designated Nationals list, alongside terrorists, warlords, and drug traffickers. More designations may follow.
The impact of the sanctions is severe, with both primary and secondary effects. All property of designated individuals that is in the United States, or under the control of US individuals or corporations anywhere in the world, is blocked, and travel to the U.S. by designated individuals and their immediate family members is banned. U.S. individuals and corporations are prohibited from providing goods or services to, or for the benefit of, designated persons or entities. Violations are enforceable under the International Emergency Economic Powers Act (IEEPA), carrying civil fines of up to $377,700 per violation (or twice the value of the underlying transaction) and, for wilful breaches, criminal penalties of up to 20 years’ imprisonment and a $1 million fine. Foreign individuals and corporations that materially support a designated person or entity may themselves be sanctioned, effectively extending the reach of these measures worldwide.
In contrast to the imagined domestic scenario above, attacks on international court officials have barely moved the needle in terms of public response. In the meantime, the quiet but corrosive work of sanctions is achieving exactly what they were designed to do: to isolate, intimidate, and incapacitate the Court. The ICC Prosecutor, a British national, has had his UK bank account frozen by NatWest and has been locked out of his Microsoft email account, cutting off access to critical case files and communications. American ICC staffers have been warned that returning to the U.S. could expose them to arrest. NGOs and private contractors have withdrawn from ICC projects, fearing secondary sanctions. One anonymous ICC official expressed concern that it is hard to see how the Court will make it through the next four years.
A New Phase in U.S. Exceptionalism
There has been a tendency in some quarters to downplay the significance of the Trump administration’s approach to the ICC, seeing it as merely the latest episode in a well-documented history of U.S. ambivalence. But such continuity arguments risk flattening crucial distinctions.
The U.S. has always occupied a paradoxical position in international law: both as its principal architect and its most prominent skeptic. This stance reflects a deeper ideological orientation often described in terms of American exceptionalism. U.S. exceptionalism has often meant holding the system at arm’s length, supporting international law’s aims while avoiding its constraints. Louis Henkin once described this as America’s “flying buttress” mentality – supporting the edifice from the outside, but reluctant to submit to its binding constraints. Central to this line of reasoning is the belief that the U.S. can remain outside the legal framework without undermining it because it embodies as a nation the values international law and its institutions seek to protect.
The Trump administration’s approach to international law represents a rupture in this tradition. This approach is not merely an intensification of long-standing American skepticism toward international institutions, but a qualitative shift in both rhetoric and practice. Where previous administrations sought to reinterpret, evade, or selectively engage with international law, the Trump administration is seeking actively to delegitimize and dismantle it. The ICC sanctions, in particular, reflect a transformation from disengagement to punitive confrontation – targeting not State adversaries or human rights violators, but an independent judicial institution tasked with upholding the very legal norms the United States once helped to establish and articulate.
Not All Violations Are Created Equal
This brings us to the need for a more nuanced framework to assess violations of international law. The binary distinction between lawful and unlawful can often obscure more than it reveals when applied to international law. Not all breaches are created equal – some reflect principled defiance that catalyzes law’s development, while others represent cynical manipulation or even systemic sabotage.
In a recent article, I have proposed a framework of differentiated legal responsibility — a spectrum that ranges from constructive breach, to principled resistance, to ordinary violation, to disruptive violation, and, at the far end, subversive violation. Such a taxonomy allows us to ask not only whether a legal rule has been broken, but how it was broken, why it was broken, and with what effect on the system as a whole.
Crucially, these violations of international law do not occur in a vacuum. Over time, repeated or patterned breaches – especially those that fall toward the subversive end of the spectrum – can begin to shape, and even redefine, the legal identity of the actor involved. This section moves from the typology of breach to the status of actors in international society. International law, like any normative system, does not merely regulate behavior – it attributes meaning to it. At some point, violations cease to be incidental and become constitutive. What is at stake is not only what a State does, but what it becomes.
Gerry Simpson’s Great Powers and Outlaw States captures this status dimension with striking clarity. His core insight is that in practice, the enforcement of international law treats the same violations very differently depending on who commits them. Outlaw States – those on the margins of the system – are condemned, sanctioned, and sometimes violently disciplined for breaking core norms. Great Powers, by contrast, are permitted to bend or breach those same rules without forfeiting their legal legitimacy, precisely because they occupy a foundational position in creating and sustaining the system. Yet while Simpson traces the politics of legal status with great acuity, he largely treats deviance as a flat category. That is where the present intervention departs. While the Great Powers of Simpson’s account are legally deviant, their violations historically occurred within a paradigm of what he called “legalized hegemony,” which contained and enabled legal exceptionalism without destruction of the legal order. What we are witnessing today, by contrast, is something different: a form of conduct by central powers that mirrors the logic and effects traditionally ascribed to rogue States. The difference lies not in the conduct itself, but in the actor’s structural place within the international order.
The Rogue Great Power
What happens when the rogue is no longer at the periphery, but entrenched in the system’s core? When the conduct associated with outlawry – legal bad faith, institutional sabotage, performative lawfare – is now undertaken by those with formal authority over the system’s institutions? This is the figure I term the Rogue Great Power: a State whose deviance is not mitigated by its centrality, but rendered more dangerous because of it. Its violations are not merely exceptional; they are subversive – directed at the systemic conditions of legality itself. The Rogue Great Power thus presents a unique and paradoxical form of systemic risk: not disruptive explosions from the periphery, but an implosion at its core.
International law’s traditional responses to rogue behavior – delegitimization, isolation, sanctions, exclusion – are unworkable when the rogue sits at the system’s core. Great Powers hold vetoes, set agendas, and bankroll institutions. They cannot be easily expelled without risking systemic collapse, yet their unrestrained participation corrodes the very order they sustain.
This problem is familiar in other domains. In finance, such actors are “too big to fail.”. In constitutional theory, they require “guardrails.” In political game theory, they are managed through calibrated deterrence and constraint. Across fields, the lesson is consistent: exclusion can be counterproductive when the actor is indispensable; engagement must be structured to contain, not capitulate.
Embedded Containment
For international law, that means developing strategies of embedded containment – methods of working with a Rogue Great Power that box in destabilising conduct without making it the new normal. Success requires coordinated action by States, institutions, and civil society to defend systemic integrity while avoiding both passive complicity and reckless escalation.
The U.S. sanctions on the ICC are a live test case. They blend the hard edge of economic coercion with the symbolic weight of a Great Power declaring an independent court illegitimate. Their chilling effect radiates far beyond the Court itself, reaching anyone who might work with it.
The question is no longer whether these sanctions are an affront to the Court’s independence (they are), but whether the international community can respond in a way that actually shifts the calculus in Washington. Outrage alone is not enough. The answer lies in raising the cost of coercion: legally, reputationally, and commercially.
(1) Raising the Legal Cost
The first imperative is legal insulation: making it harder, slower, and more dangerous for coercive measures to be implemented or enforced. This can happen on three fronts.
(a) Within third States: Blocking statutes, such as the EU’s, already neutralise the extraterritorial reach of certain U.S. sanctions by prohibiting compliance within their jurisdiction, nullifying foreign judgments based on them, and allowing damages claims against anyone who enforces them. Expanding these laws to cover ICC-related designations would materially shift the risk calculus for private actors. Banks, contractors, and NGOs operating in Europe or other participating jurisdictions would have explicit legal cover to reject U.S. pressure without breaching domestic law – and, crucially, a statutory right to claim compensation if they suffer losses from sanctions-related over-compliance. Such measures would not only protect the ICC’s operational continuity, but would also force U.S. authorities to reckon with the political and financial costs of attempting to enforce its measures abroad. By aligning legal incentives with institutional resilience, an expanded blocking regime would turn the extraterritorial coercion logic of sanctions back on itself.
(b) Within international law: ICC officials are not ordinary civil servants; under Article 48(2) of the Rome Statute they enjoy the same protections as diplomatic agents, including personal inviolability and immunity from interference with their property, bank accounts included. These protections are reinforced by the Protected Persons Convention, by which the U.S. is bound. That treaty defines internationally protected persons broadly to include officials of intergovernmental organisations who are entitled to protection from any crime against their person, freedom, or dignity, as well as their family members. In this light, it is arguable that sanctions that freeze personal assets, block services, and restrict travel can constitute such an “attack” under article 2 of the treaty, particularly when read alongside Article 70 of the Rome Statute, which criminalises influencing or impeding Court officials. On that view, the Netherlands, as ICC host state, and the UK, Benin, Fiji, France, Canada, Slovenia, Uganda and other states of nationality of designated individuals, have a positive duty to shield ICC officials from these measures. The Protected Persons Convention’s compromissory clause (Article 13) would also allow these states to bring the U.S. before the International Court of Justice to justify the legality of its actions.
(c) Within the coercive State itself: Even in a political climate hostile to the ICC, U.S. federal courts remain an essential venue for challenging sanctions on constitutional and administrative grounds. A noteworthy example is Smith v. Trump, in which two U.S. human rights advocates secured a preliminary injunction from the U.S. District Court for the District of Maine on July 18, 2025. Judge Nancy Torresen held that Executive Order 14203 likely violated their First Amendment rights by broadly criminalizing “services for the benefit of” ICC officials and imposing speech-related constraints that were not narrowly tailored. The court also recognized that the order likely exceeds presidential authority under IEEPA and may breach the Administrative Procedure Act. Such litigation does more than protect immediate plaintiffs – it creates procedural drag, obliges the executive branch to justify its actions on the record, generates factual discovery that may feed into parallel proceedings abroad, and helps preserve a factual and legal trail for accountability down the line. Even partial or temporary wins can blunt the immediate enforcement of sanctions and signal that these measures are legally contested, not merely administrative routine. Practically, individuals and entities should still apply to OFAC for specific licenses to engage in ICC-related work – financial, academic, or legal. Even denials of such licenses can be vital: they establish a legal record, allow for appeals or review under statutory or constitutional grounds, and can be used as evidence of procedural unfairness or overreach in court.
(2) Raising the Reputational Cost
A Rogue Great Power’s most valuable asset is not just hard power, but the presumption of legitimacy. That presumption can be eroded. Strategic signalling must frame sanctions not as a policy dispute but as an obstruction of justice. Article 70 of the Rome Statute makes retaliation against ICC officials a crime punishable by up to five years’ imprisonment. The issue is not whether Washington “disagrees with the Court,” but whether it is coercing a judicial institution in violation of international law. Every reference to the sanctions should make that point explicit.
In the wake of the Executive Order imposing sanctions, UN experts, the International Bar Association, and 79 states parties to the Rome Statute spoke out powerfully against it. These interventions are important, and need to be part of a coordinated, recurring pattern. Following the Bureau of the Assembly of States Parties 2022 Good Practices Annex, each new designation should trigger an immediate and cross-regional response: a statement from the Assembly of States Parties presidency, a joint declaration from States across Africa, Latin America, Europe, and Asia-Pacific, and interventions in New York and Geneva that keep the issue on the agenda. The point is repetition and persistence. What looks like a one-off protest today must become a standing reminder that sanctioning judges is treated as criminal obstruction of justice everywhere it is raised.
Reputational costs should also be reinforced through the institutions that measure judicial independence. The UN Special Rapporteur on the Independence of Judges and Lawyers reports to the Human Rights Council and also to the General Assembly. The mandate is guided by the UN Basic Principles on the Independence of the Judiciary, which set out international standards for judicial independence. The World Justice Project Rule of Law Index tracks judicial independence and constraints on executive power in more than 100 States. If U.S. sanctions on ICC officials are systematically registered through State submissions, NGO reporting, and expert attention, they will leave a lasting mark in precisely the benchmarks Washington cites when criticizing others.
Finally, pressure must extend beyond measurement. States and institutions can quietly restrict prestige platforms — chairmanships, keynote slots, convening privileges — for officials defending sanctions, while legislatures in allied States hold hearings and issue resolutions linking the measures to judicial coercion. Professional associations, law faculties, and judicial councils can underline that these sanctions undermine shared rule-of-law commitments. Civil society can translate this into accessible narratives, mobilizing regional allies and sympathetic U.S. voices alike: members of Congress, retired judges, bar associations, donors, universities, even business and faith groups. The cumulative effect is to shift the reputational balance so that each act of coercion comes with a visible diplomatic bruise.
(3) Raising the Commercial Cost
Sanctions work in large part by inducing over-compliance. Banks close accounts, tech firms suspend services, and contractors quietly withdraw because it is cheaper to comply than to risk entanglement with U.S. enforcement. This logic is especially potent where the ICC relies on third-party infrastructure – commercial banks to process payroll, cloud providers to host sensitive case files, and software firms to run evidence platforms. In 2022, for example, the ICC announced a major partnership with Microsoft under “Project Harmony” to support AI-based evidence management and cloud storage. If sanctions pressure makes U.S.-based firms nervous, they can restrict or terminate services even without a legal obligation to do so. Fear, uncertainty, and risk-aversion do most of the work.
That logic can be reversed. States can create resilience funds, held outside U.S. jurisdiction in institutions like the European Investment Bank, to guarantee liquidity and payroll continuity in the face of banking blockages. They can establish mirror digital infrastructure in politically neutral jurisdictions, ensuring that case files, forensic records, and protected witness testimony are never hostage to the decisions of one or two service providers. They can negotiate indemnity schemes so that contractors, banks, and tech companies who resist unlawful sanctions are shielded from financial loss through State-backed guarantees.
If sanctions make it risky to deal with the ICC, counter-measures should make it even riskier to cut the ICC off. Member States could adopt procurement preferences for firms that pledge not to withdraw services in response to overbroad sanctions. Contracts with the Court and with supportive States can include penalty clauses for unjustified suspensions. Diversification of funding streams — through vetted philanthropic contributions or independent legacy funds — can further reduce exposure to coercion. The aim is not only to shield the Court but to shift the economic calculus outward: disengagement should carry its own bottom line.
Containment Without Capitulation
None of these measures, on their own, will force a Rogue Great Power to change course. But taken together, they alter the cost-benefit equation. They slow enforcement, muddy the legal waters, sap the efficiency of coercive tools, and steadily chip away at the aura of legitimacy that makes such tools effective.
The lesson of embedded containment is that when exclusion is impossible, resistance must be layered – legal, reputational, commercial – so that the system’s core cannot hollow itself out without meeting friction at every turn.
The ICC sanctions may be the first major stress test of this model. They will not be the last.
