A bill that would have required the president to sanction the International Criminal Court (ICC) has failed in the Senate. It may return, or President Donald Trump may unilaterally impose sanctions on the ICC, as he did in his first administration. Either result would raise serious constitutional concerns and deal a grave blow to human rights accountability, including investigations the United States has supported.
The ICC is an independent court established to help maintain international peace and security. It investigates and prosecutes crimes of the severest magnitude, including genocide, crimes against humanity, and war crimes, when domestic courts are unwilling or unable to do so. In November 2024, the ICC issued arrest warrants for senior officials of Israel, including its Prime Minister, and Hamas. In response, some members of Congress introduced the “Illegitimate Court Counteraction Act,” a bill instructing the president to sanction any “foreign person” who helps the ICC to “investigate, detain, or prosecute” citizens or lawful residents of the United States or certain allied nations. Under the bill, even providing “technological support” or “indirect” assistance to a targeted ICC investigation would be sanctionable.
As a U.S.-focused human rights and civil liberties organization, the ACLU takes no position on the ICC’s arrest warrants, but we are deeply concerned that the impact of sanctions would violate the Constitution and undermine the independence of the court.
The ICC reflects an international consensus dating back to the post-WWII Nuremberg Tribunal: the world needs an independent judicial body to prevent impunity for unconscionable crimes, protect the rights of victims, secure the due process rights of the accused, and ensure the sovereignty of individual nations. Today, the ICC’s work includes investigations of alleged mass atrocities committed in Ukraine, Venezuela, Sudan, and by the Taliban. Many allies of the United States have adopted legal obligations requiring them to cooperate with the ICC.
Sanctions are an extraordinarily powerful tool usually aimed at people who have committed serious crimes and groups that are a threat to U.S. national security. Their impact can be devastating. For example, people and entities sanctioned under the ICC bill would have their assets frozen, and they and their immediate family members would be barred from entering the United States, notwithstanding pre-existing visas. These measures would severely undermine all ICC operations, not only the ones the legislation claims to target.
Moreover, if the bill becomes law, U.S. citizens and residents could be prohibited from meaningfully participating in any of the ICC’s investigations and work. When someone is sanctioned, it is generally against the law for anyone—including people in the United States—to work with or for them. The penalties for doing so can be extremely harsh. Even accidentally violating a sanctions prohibition may be punished by hundreds of thousands of dollars in fines.
In other words, if the bill becomes law, people in the U.S. who’ve devoted their lives to seeking justice for the victims of atrocities could face stiff penalties simply for exercising their constitutional right to speak with the ICC, such as providing the ICC with legal advice, guidance, or research support across a range of its activities. The First Amendment does not allow the government to impose such sweeping limits on what Americans can say, and to whom they can say it.
In 2020, when President Trump imposed similar sanctions, the ACLU sued on behalf of human rights experts who were forced to stop working with the ICC. Our clients withdrew their lawsuit when President Joe Biden rescinded the sanctions, but a federal court in a separate suit agreed the sanctions likely violated the First Amendment.
The Senate was right to stop the bill this week. It should never come back. Legislators who disagree with the ICC must find a way of doing so that respects the Constitution and does not compromise the ability to bring the perpetrators of mass atrocities to justice.
