Sanctioning the Bench: Executive Order 14203 and the Limits of Non-Party Status
On Dec. 18, 2025, Secretary of State Marco Rubio added to the list of targeted individuals subject to sanctions by virtue of Executive Order (EO) 14203 ("Imposing Sanctions on the International Criminal Court") two International Criminal Court (ICC) Judges: Gocha Lordkipanidze of Georgia and Erdenebalsuren Damdin of Mongolia.[i] The sanctions were implemented following the judges voting in favor of an ICC decision on December 15, 2025, denying Israel's appeal regarding the prosecution of its citizens without their government's consent.[ii] Secretary Rubio stated that both the U.S. and Israel are not parties to the Rome Statute and therefore reject the ICC's authority to try their citizens.[iii]
While non-party status may provide some protection to the U.S. from certain obligations to international bodies, the customary international law doctrine of judicial independence is one deeply rooted in tradition and a necessary trademark of democracy.[iv] Although it is likely that the U.S. did not violate any explicit obligations contained within the Rome Statute when it sanctioned Lordkipanidze and Damdin, it arguably violated the internationally recognized principle of judicial independence.[v]
Beginning with the potential results that stem from the International Law Commission's Articles on State Responsibility, while not legally binding, they provide a foundation upon which states may rely when acting under customary international law.[vi] Under Article 2, an internationally wrongful act consists of two elements: conduct attributable to the state, and a breach of an international obligation.[vii] Clearly, EO 14203 constitutes presidential action that is attributable to the United States, meeting the first element. Whether or not the sanctions imposed on the judges for their votes violate customary norms of judicial independence relates directly to whether such sanctions constitute a breach of those norms.[viii] It is likely that both the ICC and the international community will consider these actions to be a violation of judicial independence since the sanctions have individually targeted and financially impacted the judges involved.[ix] Conversely, the United States views the ICC as an international court which the United States is not a party to, nor does it support one of its allies (Israel) being subject to its jurisdictional control. Therefore, from the standpoint of the United States, the ICC is exercising judicial overreach by investigating citizens of a country that is not a member without first obtaining their consent.[x]
In addition to these immediate consequences, there are broader implications. In Barcelona Traction, Light and Power Company, Limited, the International Court of Justice (ICJ) distinguished between obligations a state owes to other states and those it owes to the international community, also referred to as erga omnes. Among these international obligations, the Court identified the prohibition of aggression, genocide, and the protection of fundamental human rights. The ICJ’s determination in Barcelona Traction provides a basis for the proposition that, since judicial independence carries the characteristics of such obligations, every state has a legitimate interest in protecting that right.[xi] Furthermore, this was not the first time that the U.S. expressed its dislike for the ICC. The 2002 American Servicemembers' Protection Act (ASPA), colloquially referred to as the "Hague Invasion Act," provided authorization for the President to use any means necessary to releas any American military personnel detained by the ICC.[xii] However, unlike ASPA, which represented an avenue of institutional action, EO 14203 targeted the individual finances of the judges themselves.
These actions are not limited to the international sphere. The premise underlying the Trump administration’s actions is that a state may exert control over a judicial officer it disagrees with via financial restrictions.[xiii] Such logic raises serious questions about executive conduct toward judicial institutions domestically, as well.[xiv] A basic tenet of judicial independence is that the adjudication process should remain free from external pressures or influence to operate effectively.[xv] If that principle can be disregarded when applied in an international context, the question arises as to what prevents that same reasoning from being applied domestically in the United States.
Reasonable people can disagree about ICC jurisdiction over non-parties, and the U.S. has long maintained its objections to the court’s reach. What the International Law Commission’s Articles raise, however, is whether the methods chosen here carry independent legal consequences. Sanctioning individual judges for the content of their decisions is a different category of act than declining to ratify a treaty or withholding institutional cooperation. Whether that distinction ultimately reshapes U.S. foreign policy or prompts a broader international response remains to be seen.
Stephen Gavrielidis is a staff member of Fordham International Law Journal Volume XLIX.
[i] See Press Statement, U.S. Dep’t of State, Sanctioning ICC Judges Directly Engaged in the Illegitimate Targeting of Israel (Dec. 18, 2025), https://www.state.gov/releases/office-of-the-spokesperson/2025/12/sanctioning-icc-judges-directly-engaged-in-the-illegitimate-targeting-of-israel/.
[ii] See id.
[iii] See id.
[iv] See Hum. Rts. Watch, Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela ch. II (2004), https://www.hrw.org/reports//Venezuela/2.htm (citing Inter-American Democratic Charter, OAS Doc. OEA/Ser.P/AG/Res.1 (Sept. 11, 2001))
[v] See Press Release, Office of the High Comm’r for Hum. Rts., USA: UN Expert Demands Withdrawal of Sanctions Against ICC Judges and Officials (Jan. 12, 2026), https://www.ohchr.org/en/press-releases/2026/01/usa-un-expert-demands-withdrawal-sanctions-against-icc-judges-and.
[vi] See James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 57–59 (2002).
[vii] Id at 81–85 (explaining that an internationally wrongful act requires both conduct attributable to the state under international law and a breach of an international obligation in force for that state at the relevant time; attribution connects the conduct of state organs or agents to the state as a single legal person, while breach is established when that conduct fails to conform to what the relevant international obligation requires, regardless of whether the state's internal law authorized the conduct).
[viii]Id at 77.
[ix] OHCHR Press Release, supra note v.
[x] U.S. Dep’t of State, supra note i.
[xi] See Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5); Oona A. Hathaway, A New Tool for Enforcing Human Rights, 62 Va. J. Int’l L. 259, 271–275 (2022).
[xii] American Servicemembers’ Protection Act of 2002, 22 U.S.C. § 7427 (2002) (authorizing the president to use “all means necessary and appropriate to bring about the release” of covered United States or allied personnel detained by the ICC); Lilian V. Faulhaber, American Servicemembers’ Protection Act of 2002, 40 Harv. J. on Legis. 537, 546 (2003).
[xiii] See Office of the High Comm’R for Hum. Rts., supra note v.
[xiv] See Scott Young, U.S. Sanctions Against the International Criminal Court, Harv. L. Today (Mar. 25, 2026), https://hls.harvard.edu/today/u-s-sanctions-against-the-international-criminal-court/.
[xv] See Basic Principles on the Independence of the Judiciary, supra note iv, princs. 1–2.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.