As the US Escalates Its Threats against ICC, What Next for Sanctions?

The US State Secretary Marco Rubio has announced the Trump administration’s desire to ‘dismantle’ the International Criminal Court:

‘Using all the tools at our government’s disposal, working beside every ally with whom we can make common cause, we will dismantle the ICC — brick by brick, if necessary.’

Rubio’s op-ed in the Wall Street Journal was followed by a State Department press release indicating that the Trump administration is considering more aggressive sanctions, including designating the ICC as a whole. Currently, eight out of the 18 ICC judges and three of its prosecutorial staff are subject to US sanctions.

Three of those judges are challenging the sanctions in US courts. Ironically, they include Kimberly Prost, a distinguished Canadian lawyer who is no stranger to sanctions — between 2010-2015, she served as the Ombudsperson for UN counter-terrorism sanctions, helping ensure that due process was followed in their imposition.

She might now wish that some due process were available for US sanctions. Unfortunately, this is very unlikely to be the case.

Another ongoing court challenge is a case in point.

In July 2025, the US government imposed sanctions on UN Special Rapporteur on Palestine, Francesca Albanese. The sanctions were formally based on Albanese’s calls for the ICC to investigate alleged Israeli crimes in Palestine. Her husband and daughter — not Albanese herself — sued in US courts, alleging a violation of the First Amendment (which, famously, protects free speech).

In May 2026, a US District Court issued an injunction pausing the application of US sanctions against Albanese. But, only a month later, the US Court of Appeals for the DC Circuit stayed the injunction and restored the sanctions, which are therefore currently in effect.

Central to the case is whether the US Constitution guarantees the right to free speech to foreign nationals who, like Albanese, reside outside of the US but have a substantial connection to the US. In Albanese’s case, this includes owning real estate in the US and having a US-citizen daughter, born while Albanese and her husband lived in the US.

The District Court judge thought that the plaintiffs’ challenge to US sanctions was likely to succeed and therefore granted the injunction; two of the three appellate judges disagreed.

This gives us a flavour of the potential disagreement one may expect once the courts decide the case on the merits.

Albanese’s challenge is indicative of the hurdles that foreigners face when seeking to contest US sanctions. They generally have no recourse to constitutional safeguards.

Sanctions can also be challenged under the Administrative Protection Act 1946, but it too offers scant protection. The government enjoys broad discretion, and the plaintiff needs to demonstrate that not only was the decision to impose sanctions wrong, but profoundly so: for instance, being ‘arbitrary’ or ‘capricious’.

For these reasons, generally speaking it is safe to bet against the success of most challenges to US sanctions. This is also true of the litigation brought by the ICC judges.

I suspect those cases are being brought not in the expectation that they will succeed, but rather to emphasise those judges’ — and the ICC’s — view that the sanctions against them are illegitimate.

If the US follows through with its threat of further sanctions, the real counterforce to it will be the resolve of the ICC states parties to protect the Court, including by engaging with European financial institutions and service providers to work out how they can serve the Court without falling foul of US restrictions.

Garnering this support should be among the ICC’s top priorities. It does not help that its leadership is in turmoil with its Prosecutor, Karim Khan, having been recently suspended because of allegations of sexual misconduct.

Still, I find it difficult to believe that EU member states, Canada, Australia and other countries committed to the international rule of law would quietly accept the ICC’s destruction through US sanctions.

These countries sometimes disagreed about sanctions in the past, notably leading to the enactment of the EU Blocking Statute to (unsuccessfully) shield EU companies from the effects of US sanctions, but a US campaign to unilaterally dismantle an international institution based in The Hague will force the EU to either accept the ICC’s demise or actively seek to frustrate US sanctions.

It may well be that what is really being dismantled here is the credibility and international standing of US sanctions, to all of our detriment.