Dr Cyril Laucci is Lead Counsel for the Defence at the International Criminal Court

In December 2025, I wrote to deplore the isolation of individual International Criminal Court (“ICC”) judges, the Prosecutor, and Deputy Prosecutors targeted by US sanctions imposed pursuant to the February 2025 Executive Order 14203, “Imposing Sanctions on the International Criminal Court”, as well as the apparent lack of legal strategy of the Court and its States Parties to address them. Four months later, the situation has not improved. Fortunately, no additional individuals have been added to the US sanctions list, and the feared “institutional sanctions” targeting the Court as a whole have yet to materialize, leaving some hope that they never will. However, there has been no progress either.

The targeted ICC Judges, Prosecutor, and Deputy Prosecutors appear more isolated than ever, left to defend their individual independence as the sole bulwark protecting the independence of the Court. Their situation is increasingly difficult: European bank accounts closed; access to US products and services, including credit cards, blocked; US-based assets frozen. For how long can this continue? In the absence of any initiative to resolve the situation, the possible scenarios range from best to worst: (i) a prolonged status quo until a significant shift in US foreign policy brings the current sanctions to an end; (ii) the addition of further ICC officials, civil servants, or affiliated individuals to the sanctions list; or (iii) the extension of sanctions to the ICC as an institution. While many may reluctantly hope for option (i), it is far from ideal and fails to address the ongoing hardship faced by those already listed. Options (ii) and (iii) would be far worse.

The risk of having new ICC officials, staff members and/or affiliated persons added to the US List of Sanctions obviously has an impact on the institution and its staff. It is not always that staff members of an organization are compelled to take the risk of having US sanctions hanging above their head and the heads of their family members for the sole reason of doing their job. The fear of a generalization of sanctions to the entire institution is adding to this the uncertainty about what tomorrow may be made of, as far as their job is concerned: is there a point where the institution may be left with no other option than separating staff members, temporarily or permanently? This situation is not only anormal; it is a cause of prejudice, at minimum ongoing stress, that every staff member within the Court shall endure as a result of sanctions. Stress is bad; one should not be exposed to it without reason. But stress is little, compared to the actual harm that is caused, when sanctions materialize: for a staff to have his name added to the US List and/or for the Court to be targeted as an institution.

Be it the current stress or more, ICC officials and staff members are enduring harm as a result of US Sanctions. The harm is far more concrete for the eleven people who already have their name on the list; but it also exists for the others and should not be ignored.

This ongoing harm raises an important question: is this something ICC officials and staff members should be expected to endure as part of their conditions of service? Or may it entitle them to compensation? If so, who bears responsibility for this harm, and who is under an obligation to redress it?

Diplomatic Protection against Internationally Wrongful Acts

Since International Court of Justice (“ICJ”) 1949 Advisory Opinion in the case of Reparation for Injuries Suffered in the Service of the United Nations (“Reparation Case”), it has been established that injuries suffered in the service of international organizations give rise to a right to reparation: “in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a Member State [or a non-member State], the United Nations as an Organization has the capacity to bring an international claim against the responsible de jure or de facto Government with a view to obtaining the reparation due in respect of the damage caused to the United Nations [and] to the victim or to persons entitled through him” (p. 187).

Applying the ICJ’s reasoning in the Reparation Case to the ICC, it may be concluded that: (i) the ICC itself is entitled to exercise functional protection and bring a claim against the responsible government for harm suffered as a result of the US sanctions; and (ii) the affected victims, first and foremost the individuals already included on the US sanctions list, but also other ICC officials and staff members experiencing stress as a consequence of these, may likewise seek reparation for the harm they suffer.

Where the Court itself seeks reparation for damage caused to its officials and/or staff, such a claim of functional protection cannot be directed against the US, as it is not a State Party to the Rome Statute. The ICJ’s reasoning in the Reparation Case contemplated claims brought against both Member and Non-Member States alike on the basis of the “objective personality” of the United Nations. But Article 4 of the ICC Statute specifically limits the recognition of its legal personality to States Parties. As addressed in my December 2025 post, the ICC may also have good reasons not to rush the official recognition of its legal personality in the US, at least as long as no sanctions are taken against the institution as a whole.

Turning to actions brought by individuals, Executive Order 14203 provides no legal remedies and affords no opportunity to challenge the measures before US courts or any other forum. But the US is not the only State from which reparation may be sought. The individuals concerned may also look to their respective States of nationality, which bear responsibility for protecting them against injuries caused by the acts of a third State, through the traditional mechanism of diplomatic protection. Diplomatic protection consists in “the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility” (International Law Commission (“ILC”), Draft Articles on Diplomatic Protection (“Draft Articles”), 2006, Article 1).

Diplomatic protection is an old practice under customary international law, which was already enunciated by the Permanent Court of International Justice (“PCIJ”) in 1924 in the Mavrommatis Palestine Concessions Case. Diplomatic protection was codified in the abovementioned ILC’s Draft Articles. Though not yet transformed into a treaty, these give a fair picture of the current state of Customary International Law governing the matter.

According to Article 2 of the Draft Articles, “a State has the right to exercise diplomatic protection” (see ICJ, Belgium v. Spain, Barcelona Traction, Light and Power Company Ltd Judgment,  5 February 1970, para. 79). To this international “right” of a State to exercise diplomatic protection on behalf of its nationals may correspond, at the domestic level or under other applicable legal frameworks, an obligation to afford such protection.

For instance, in the case of EU Member States, the duty to exercise diplomatic protection in certain circumstances was recognized by the Court of First Instance of the European Communities (“CFIEC”) in its judgment of 2006 in the Ayadi case (“Ayadi Judgment”): “having regard to the fact […] that individuals are not entitled to be heard in person by the Sanctions Committee, with the result that they are dependent, essentially, on the diplomatic protection afforded by States to their nationals, the Member States are required to act promptly to ensure that such persons’ cases are presented without delay and fairly and impartially to the Committee, with a view to their re-examination, if that appears to be justified in the light of the relevant information supplied” (par. 149).

Unity as a Strategy

As a result of the Ayadi Judgment, at least two States of nationality of individuals currently targeted by US sanctions, France and Slovenia, may be considered under an obligation to exercise diplomatic protection in order to redress the harm caused to their nationals. The other States of nationality of the targeted individuals, Benin, Canada, Fiji, Georgia, Mongolia, Peru, Senegal, Uganda, and the United Kingdom, at a minimum possess the right to exercise diplomatic protection and, depending on their domestic or regional legal frameworks, may also be under an obligation to do so. Finally, all States Parties that currently have nationals employed by the Court may likewise have a right, or, in the case of other EU Member States, an obligation, to resort to diplomatic protection vis-à-vis the US, with a view to putting an end to the harm arising from the stress caused by the existing sanctions and the threat of further measures.

According to the Court’s latest Report on Geographical Balance, dated October 2025, the States whose nationals are employed by the Court include 67 States Parties and 26 non-States Parties, in addition to the US. Leaving the latter aside, no fewer than 93 States have nationals working at the Court and therefore possess the right to exercise diplomatic protection in response to the US sanctions. 29 are members of the African Union; 24 of the European Union; 12, in addition to the US, of the Organization of American States; 10 of the Economic Community of West African States; 9 of the Arab League; 4 of the Association of Southeast Asian Nations; and 4 of the Commonwealth of Independent States, which may create opportunities for coordinated regional initiatives.

The exercise of diplomatic protection by these States would entail a clear and unequivocal determination that the US sanctions imposed on these individuals constitute wrongful acts causing harm to their nationals. Such a determination would amount to strong, unambiguous, and decisive support for the individuals concerned and, through them, for the Court itself. A broad and coordinated rejection of US sanctions targeting the Court and/or its officials would convey a powerful message to the current US administration that such measures are unlawful and must cease.

In the absence of legal remedy provided in Executive Order 14203, the US sanctions fall within the exception of Article 15(a) of the Draft Articles, excluding the condition of their exhaustion. The only precondition for the exercise of diplomatic protection remaining is that of nationality of the impacted persons.

For States Parties that have nationals employed by the ICC, the Court itself may, returning to the reasoning of the Reparation Case, invoke its functional protection vis-à-vis those States by bringing a claim against them for failure to protect their nationals. Although such action is not expressly contemplated under Article 119 of its Statute, the Court is nevertheless vested with a customary right to exercise functional protection, as recognized by the ICJ in the Reparation Case.

Although functional protection was originally conceived to safeguard the independence of international civil servants, by sparing them the need to rely on diplomatic protection from their State of nationality, the two mechanisms are not mutually exclusive (ICJ, Reparation Case, Judgment, p. 185). In the present context, whether through the exercise of diplomatic protection by a State of nationality against the US, or through the exercise of functional protection by the Court vis-à-vis a State Party, the objective is the same: to preserve the independence of the Court, its officials, and its staff. There is therefore no contradiction in relying on diplomatic protection by States to safeguard that independence.

The exercise of diplomatic protection may take the form of a request addressed to the US to lift the sanctions imposed on their nationals, specifically by removing their names from the list annexed to Executive Order 14203. Alternatively, should the US refuse to do so, it could entail the institution of proceedings against the US before the ICJ, under the conditions outlined in my December 2025 post.

Ultimately, if States decline to exercise diplomatic protection, and if the Court refrains from invoking its functional protection, or if such action proves unsuccessful, the final recourse may lie with the International Labour Organization Administrative Tribunal (“ILOAT”). Before the ILOAT, affected elected officials, who fall within its jurisdiction following its Judgment 3359, and/or staff members may seek redress for the harm suffered. Should the ICC be held liable by the ILOAT for damages incurred by its elected officials and/or staff, the financial burden would ultimately fall upon the States Parties through their contributions to the Court’s budget. If needed, this undesirable prospect should serve as a powerful incentive for States to exercise diplomatic protection before such claims are brought.

Conclusion

The US sanctions constitute an unprecedented attack on the Court, its independence, and its officials and staff. Addressing them effectively may require looking beyond the traditional mechanisms provided by the Rome Statute. When the independence of an institution is under threat, its most powerful response lies in unity. It is through such unity that the Court can achieve resilience. Those already targeted by sanctions can no longer be left to face these in isolation. The Court must stand united to defend them and, in doing so, defend the institution as a whole. The diversity of its staff constitutes a major strength: 93 States, including 67 States Parties and 26 non-States Parties, have nationals affected and a right to exercise diplomatic protection to bring the US Sanctions to an end. Let’s not make them wait. The next step is for all ICC officials and staff to make an appointment with their Embassy and ask for activation of the diplomatic protection against the impact of US sanctions.

« By uniting we stand, by dividing we fall » (J. Dickinson, The Liberty Song, 1768).