The theme of this year’s International Law Weekend, [R]evolution in the International Legal Order, asks which way the order built in 1945 is moving. As two of the conference’s co-chairs, Lisa Reinsberg and Jessica Peake, explain in this series, the international community can upgrade, renovate, or rebuild that order. It can also let it devolve into a world in which the legal structures of the last 80 years cease to matter and force has the last word. Among the signs of strain they identify are traditionally powerful states sanctioning institutions.
No development tests the direction of travel more directly than the Trump administration’s campaign against the International Criminal Court (ICC). As Michael Scharf, president of the American Branch of the International Law Association, recounts in the essay opening this series, Secretary of State Marco Rubio announced in July a U.S. campaign to “dismantle” the Court. In 20 months, Washington has moved from sanctioning a single prosecutor to placing the Court itself on the Treasury Department’s sanctions list—the same list that targets terrorist organizations, drug cartels, and proliferators of weapons of mass destruction. Whether this moment marks the devolution of international criminal justice or the start of its renewal depends less on The Hague than on a federal courthouse in Lower Manhattan.
From One Prosecutor to the Whole Court
In February 2025, President Donald Trump issued Executive Order 14203, which authorizes the secretary of state to impose sanctions on foreign persons who engage in or materially assist ICC efforts to investigate, arrest, detain, or prosecute U.S. persons and nationals of allies that have not consented to the Court’s jurisdiction. The executive order responded to two ICC proceedings: the investigation into alleged crimes by U.S. personnel in Afghanistan and the investigation in Palestine that produced arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The executive order’s annex named a single person: ICC Prosecutor Karim Khan.
Over the following 18 months, Rubio designated 13 more individuals and three organizations under the executive order’s authority: six ICC judges and two deputy prosecutors in mid-2025; U.N. Special Rapporteur Francesca Albanese, for recommending that the Court issue the Netanyahu and Gallant warrants and investigate certain American companies; three Palestinian human rights organizations—Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights—for engaging in ICC efforts against Israeli nationals; two more judges in December 2025; and, in August 2026, the Court’s president, Judge Tomoko Akane of Japan, together with Abdoulaye Seye of the Office of the Prosecutor.
On Oct. 9, the Trump administration escalated further. The State Department designated the ICC itself, and the Treasury Department’s Office of Foreign Assets Control (OFAC) added the institution to its Specially Designated Nationals and Blocked Persons (SDN) List. OFAC simultaneously issued four general licenses, including one authorizing the wind-down of existing transactions and contracts with the Court until April 7, 2027, and others covering telecommunications, enterprise software, and pension payments. Outside those licenses, U.S. persons may not provide funds, goods, or services to the Court or engage in transactions with it. Violators face civil penalties and, for willful violations, criminal prosecution carrying up to 20 years’ imprisonment.
The consequences reach well beyond the Court’s balance sheet. Once the wind-down license lapses, every U.S. bank, vendor, and service provider outside the remaining general licenses must sever ties with a court that holds defendants, protects witnesses, and conducts trials.
Reinsberg and Peake identified two weaknesses that already hamper the Court. First, it depends on states to arrest suspects, and many refuse to execute its warrants. Second, like other international institutions, it lacks stable funding, which leaves it open to charges of ineffectiveness and to capture by hostile interests. The U.S. designation deepens both: it exposes anyone who cooperates with the Court to sanctions, and it cuts the Court off from the financial and technical services it needs to operate.
The Litigation Front
Several lawsuits challenge Executive Order 14203. In Democracy for the Arab World Now, Inc. v. Trump (DAWN), the plaintiffs advance two principal theories. First, they argue that the executive order exceeds the president’s authority under the International Emergency Economic Powers Act (IEEPA), both because it rests on no qualifying national emergency and because it regulates personal communications and informational materials that the statute exempts from presidential control. Second, they argue that the order’s prohibition on providing “services” to designated persons violates the First Amendment because it bars U.S. persons from engaging in protected speech, including Article 15 submissions supporting the ICC Prosecutor’s investigations.
On Oct. 13, Judge Jesse Furman of the Southern District of New York, an appointee under President Barack Obama, granted the plaintiffs’ motion for a preliminary injunction in substantial part. He held that the Services Prohibition is likely unconstitutional as applied to the plaintiffs because it restricts their speech based on its content and fails strict scrutiny, and he enjoined all defendants except President Trump from enforcing IEEPA’s civil or criminal penalties against the plaintiffs for the conduct described in their complaint.
He declined, however, to declare the order facially unconstitutional, because much of what it prohibits raises no First Amendment concern. A bank, for example, has no First Amendment right to provide financial services to a designated person, while an American advocacy organization does have a First Amendment right to submit legal analysis and other communications to the ICC’s Office of the Prosecutor. That reasoning extends naturally to the ICC itself now that the Court has been designated.
Judge Furman did not reach the plaintiffs’ IEEPA arguments; their claim that the order rests on no valid national emergency was not part of the motion and remains for the merits stage. Prominent international lawyers have pressed the same argument outside the courtroom.
Former U.S. Ambassadors-at-Large for War Crimes Issues Stephen Rapp and Beth Van Schaack and former Chief Prosecutors of the Special Court for Sierra Leone David Crane and Brenda Hollis, who filed an amicus brief in the companion case before Judge Furman, American Friends Service Committee v. Trump, have argued in Jurist that Executive Order 14203 lacks any basis in IEEPA. The statute authorizes sanctions only to meet an “unusual and extraordinary threat.” They contend that an ICC judicial investigation conducted under a treaty ratified by more than 120 states—one the United States can challenge through amicus submissions and has itself supported—cannot constitute such a threat, particularly absent any evidence that the sanctioned judges endangered U.S. personnel or interests.
The sanctions also carry a paradox. As Ryan Goodman and Siven Watt argue in these pages, cutting the ICC off from the services it needs to operate could force the release of detainees in its custody, including people accused or convicted of the gravest international crimes. Sanctions that IEEPA authorizes only to meet an “unusual and extraordinary threat” could themselves create one.
Revolution or Devolution?
While Judge Furman’s ruling protects the plaintiffs’ speech, it leaves the order itself—and the Oct. 9 designation of the ICC—fully in force against everyone else. The decisive question is therefore the one the U.S. court has not yet answered: whether a judicial investigation by an international court can constitute an “unusual and extraordinary threat” under IEEPA at all. If the courts answer no, the entire sanctions regime against the ICC collapses, not merely its application to a handful of American advocates.
The answer to that question will decide whether the legal order built in 1945 undergoes revolution or devolution: renewal that strengthens it, or decay, leaving a system in which law no longer constrains power. Reinsberg and Peake call for narrowing the gulf between rights and remedies and for securing the stability of international institutions. A ruling that an investigation by the ICC cannot qualify as an “unusual and extraordinary threat” would advance both goals from an unexpected quarter: a domestic court defining the outer limits of the president’s emergency economic powers. It would establish that IEEPA is a tool against adversaries, not against the institutions of international law.
A ruling the other way would push international criminal justice toward devolution. It would confirm that a single state can cut a treaty-based court off from the banks, software, and services it needs to function, and it would invite other states to follow. Scharf warns that the U.S. system of checks and balances has largely broken down and urges lawyers and their associations to stand up for international law. Judge Furman’s preliminary injunction shows that the courts, at least, remain open. The plaintiffs, amici, and advocates who brought the challenge have done their part. The merits ruling will show whether the institutions of the postwar order can be defended from within one of the states that built them.
