The new U.S. sanctions program targeting the International Criminal Court (ICC) that was announced by executive order on February 6 differs in only minor respects from the sanctions program created in 2020 and the legislation that the House of Representatives has twice passed. Overall, it remains a sweeping attack on the court that will harm the ability of witnesses, survivors, court officials, tech companies, and others from close U.S. allies to support justice, far beyond the specific ICC investigations that the U.S. government opposes.
This paper – which should not be considered legal advice – analyzes broadly three key differences between the new executive order and the House bill. New provisions intended to reduce the exposure of U.S. companies and their foreign subsidiaries to these sanctions seem unlikely to achieve that goal. One ICC investigation that would have been directly sanctionable under the House bill (in the Philippines) no longer appears to be so under the new executive order, but the scope of visa bans to be imposed under the new program is even less targeted than under the House bill.
The effects of the program will ultimately depend on whom President Trump and his officials choose to sanction under it, having started with ICC prosecutor Karim Khan. As with any sanctions program, there is a risk of “overcompliance” if affected parties do not seek legal advice to understand what is actually prohibited. For now, the new executive order:
Does not reduce the exposure of major U.S. companies to sanctions penalties
The House bill was voted down in the Senate largely because its sponsors would not make changes to shield U.S. companies or their overseas subsidiaries from the sanctions. Some provisions of the new executive order reflect changes that are reportedly meant to address those concerns, which were raised by U.S. tech companies whose European subsidiaries provide software used by the ICC’s Office of the Prosecutor or other services. But these changes do not appear likely to work.
The first apparent attempt to reduce these companies’ exposure to the ICC sanctions is the executive order’s use of a broader definition of a “United States person.” As in the other sanctions programs, U.S. persons (i.e., individuals or companies) cannot be directly sanctioned under the executive order – only “foreign persons” can. While the House bill made clear that a “foreign branch” of a U.S. company would be considered a “U.S. person,” the executive order goes further and includes a “foreign branch, subsidiary, or employee.”
The major risk facing these companies was not, though, that they would be directly sanctioned for supporting a specific disfavored investigation. Far more likely was that they would face civil financial or criminal enforcement penalties for supporting the work of the ICC’s prosecutor if he were sanctioned, as is now the case. Treating these overseas subsidiaries as U.S. persons may shield them from being directly sanctioned, but it also exposes them to massive penalties for transacting with or supporting a sanctioned person, such as Khan. It is thus unclear whether this change in approach from the House bill actually offers these companies any greater protection from the effects of the ICC sanctions.
A second difference between the House bill and the new executive order is a slight narrowing in the kinds of activity that are directly sanctionable. While the House bill would have made it sanctionable to have “directly engaged in or otherwise aided” a disfavored ICC investigation, the same provision in the new executive order focuses only on those “directly engaged.” By removing “or otherwise aided” from this criterion for sanctions, this change would slightly reduce exposure to sanctions for those who support, but do not directly carry out, an ICC investigation.
But the executive order’s very next criterion for sanctions is quite broad and probably neutralizes this change. Under this provision, which was also included in the House bill, it is sanctionable for a foreign person to have “materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of” a disfavored ICC investigation, or any sanctioned person. This provision covers much of the same activity that the deleted “otherwise aided” language would have covered, making that deletion of limited consequence.
Further expands the scope of visa bans compared to the House bill
The House bill was criticized for the unfairness of denying U.S. visas not only to ICC officials sanctioned for their involvement in certain ICC investigations, but also to their spouses, parents, siblings, and adult children. The new executive order narrows the set of family members who will face visa bans (i.e., spouses and children), but it also imposes a blanket visa ban on any non-U.S. individuals whom the Secretary of State finds are “employed by, or acting as an agent of, the ICC.”
A similar provision was included in the 2020 sanctions program, and it is unclear how aggressively it was implemented then. But this provision means that any of the court’s 900 staff employees who are not U.S. citizens could be banned from entering the United States, even those that may be performing administrative functions unrelated to the investigations the U.S. government opposes, and who may have U.S.-citizen spouses and children. The same is true of anyone the State Department might consider to be an “agent” of the court, a term that the executive order does not further define.
The new executive order does not explain why the mere entry of these individuals into the country “would be detrimental to the interests of the United States,” even if they had not taken any sanctionable actions. Because these visa restrictions would be imposed under an authority that is completely opaque, it will be unclear who and how many people have had their entry barred unless those people publicly disclose that fact.
Slightly reduces the number of ICC investigations that are sanctionable
The motivation behind all these sanctions programs has been to punish or deter ICC investigations of U.S. or Israeli nationals. But each has been designed in a way that would make it sanctionable to engage not only in the court’s investigations of Israeli conduct in Palestine, or U.S. conduct in Afghanistan, but also investigations of persons from other allied countries that are not ICC member states.
The House bill was written so broadly that it swept in even the ICC’s investigation in the Philippines, even though that investigation covered crimes committed during the eight years when the country was an ICC member state (i.e., extrajudicial killings related to the “war on drugs” under then-President Duterte).
The new executive order appears to avoid this latter outcome, by making it sanctionable to engage in an ICC investigation of certain allied persons only “without the consent of that person’s country of nationality.” The Philippines clearly provided that consent by accepting the ICC’s jurisdiction from 2011 to 2019, such that engaging in an ICC investigation of Duterte or other Philippine officials for acts during that time may not be sanctionable. Still, as noted above, civil and criminal enforcement penalties remain a risk for U.S. persons who support this investigation and, in the process, provide support to a sanctioned person.
Otherwise generally mirrors the House bill
The new executive order uses the same concept and definition of a “protected person” – that is, someone the United States will use sanctions to shield from ICC scrutiny – that the House bill created. This definition includes any U.S. person and any foreign person who is a citizen or lawful resident of Israel or nine other mostly authoritarian U.S. allies and partners that have not joined the ICC (Bahrain, Egypt, Kuwait, Morocco, Pakistan, Qatar, Thailand, and Turkey) or joined it and left (the Philippines).
The new executive order still creates vast liability beyond those who are directly sanctioned, including for U.S. persons. As described above, those who support or transact with sanctioned persons, such as Khan, can be held criminally or civilly liable for violating the sanctions regime. U.S. citizens and potentially others who support any of Khan’s work may now be exposed to criminal and civil penalties, including for investigations that have enjoyed broad U.S. support such as those focused on Ukraine and Darfur. The executive order does not limit this liability regime to support for a sanctioned person’s work focused on U.S. or Israeli or other allied persons.
As in the 2020 sanctions program, the new executive order delegates the decision-making as to who will be sanctioned to the Secretary of State, in consultation with his Treasury and Justice Department counterparts.
As the House bill would have, the new executive order sets a short timeframe for imposing sanctions. The order gives the Treasury secretary 60 days to “submit to the President a report on additional persons that should be included within the scope of section 1 of this order.” This presumably means a list of additional people to be sanctioned, in addition to Khan, whom the order targeted directly.
Finally, the new executive order mirrors the House bill by making clear that dual nationals (i.e., U.S. citizens with an additional citizenship) cannot be directly sanctioned. This forecloses one possible legal ground for challenging the sanctions in court that plaintiffs pursued under the 2020 executive order.
