Donald Trump’s executive order imposing sanctions on the international criminal court (ICC) is facing a legal challenge from two US human rights advocates who argue it is “unconstitutional and unlawful”.
In a lawsuit filed in federal court on Friday, the advocates said the order had forced them to stop assisting and engaging with the ICC out of fear the US government would punish them with criminal prosecution and civil fines.
Lawyers for the American Civil Liberties Union (ACLU), which filed the case on the advocates’ behalf, argued that Trump’s order violated the first amendment by prohibiting their constitutionally protected rights to share information with the ICC’s chief prosecutor and his staff.
They said the plaintiffs “wish to continue communicating with the [prosecutor’s office], but are chilled from doing so because of the substantial risk that they will be penalised”.
Under the order signed by Trump in February, the US has imposed economic and travel sanctions against the prosecutor, Karim Khan, prohibiting US citizens, permanent residents and companies from providing him with services and material support.
Khan, a British lawyer, leads a division of the ICC, a permanent court in The Hague, which investigates and prosecutes individuals accused of committing atrocities.
Trump issued the order in response to the court’s decision last year to approve Khan’s requests for arrest warrants against Benjamin Netanyahu and his former defense minister Yoav Gallant for alleged war crimes and crimes against humanity in Gaza.
The aggressive order established a framework for imposing additional sanctions on ICC officials and directed the US treasury department to submit to Trump the names of other individuals to be targeted, raising the prospect of a more expansive campaign against the court.
The legal challenge against Trump’s order, filed in the US district court for Maine, has been brought by Matthew Smith, the co-founder of Fortify Rights, a south-east Asia-focused human rights organisation, and Akila Radhakrishnan, an international lawyer.
According to the lawsuit, Smith has provided the ICC prosecutor’s office with “evidence of the genocide and forced deportation of Myanmar’s Rohingya people” and assisted the court’s investigators in analysing and developing sources of evidence relating to atrocity crimes.
In a statement issued by the ACLU, Smith said the order meant he had been “forced to stop helping the ICC investigate horrific crimes committed against the people of Myanmar, including mass murder, torture and human trafficking”.
“This executive order doesn’t just disrupt our work – it actively undermines international justice efforts and obstructs the path to accountability for communities facing unthinkable horrors,” he added.
Radhakrishnan, the second plaintiff, has worked with the ICC as an external advocate and adviser, engaging extensively with the prosecutor’s office on sexual and gender-based crimes in countries such as Afghanistan and Myanmar.
In December, according to the lawsuit, Radhakrishnan accompanied a group of Afghan women to The Hague where they met with the prosecutor’s office and its investigators working on its Afghanistan inquiry.
Radhakrishnan said she was bringing the case “to prevent my own government from punishing me for trying to hold the Taliban accountable for its systematic violence against women and girls from Afghanistan”.
The ICC prosecutor’s office – which has an active criminal investigation into crimes committed in Afghanistan as well as the situation in Myanmar and Bangladesh – frequently collects evidence and information from third parties, such as NGOs, victims’ groups and UN investigators.
In their lawsuit, Smith and Radhakrishnan have asked the US court for a declaration that Trump’s order violates the first amendment and does not comply with emergency powers legislation. They also want the court to prevent the government from “enforcing the speech restrictions” imposed by the order.
In 2021, a federal court in California considered a similar legal challenge after Trump imposed sanctions against Khan’s predecessor. In that case, the judge barred the government from enforcing the order against four law professors who assisted the ICC prosecutor, who she said were “likely to succeed on their first amendment challenge”.
