International Judges Cannot Claim Rights They Don’t Have

T hree International Criminal Court (ICC) judges are asking a federal court in Manhattan to give them constitutional rights the Constitution does not extend to foreign nationals abroad, to read into a sanctions statute limits that Congress never wrote, and to subordinate an Act of Congress to a court the U.S. never joined. But the complaint’s main problem is not even what it says; its fatal flaw is what the lawyers knew they had to leave out.

The order being challenged, Executive Order 14203, is a sovereignty-protection measure. Put into place by President Trump in February 2025, the order freezes U.S.-linked property and bars U.S. persons from dealing with designated ICC officials who use a court with no jurisdiction to investigate, arrest, detain, or prosecute Americans or allied nationals without their government’s consent. The administration invoked it here against judges whose rulings advanced ICC proceedings against American personnel in Afghanistan and Israeli leaders after October 7.

The order and its predecessor have been to court before, but both successful challenges turned on a single ground: the First Amendment rights of American citizens who wanted to assist the ICC. These plaintiffs, however, are not U.S. persons. They are citizens of Canada, Uganda, and Benin, living in the Netherlands. The First Amendment is not theirs to raise, and the lawyers who filed this complaint certainly know that. The Open Society Justice Initiative, co-counsel here, won a First Amendment injunction against the predecessor order and beat this one as well, winning a permanent injunction for two American law professors. They know which argument could win, but they also know that it is unavailable to their clients. So they brought other ones, all of them weak.

Take the constitutional claims first. Judges Prost and Bossa say they were denied due process and that their property was taken. Both claims assume the question the complaint never answers: whether foreign nationals abroad hold Fifth Amendment rights at all. They do not. In United States v. Verdugo-Urquidez (1990), the Supreme Court held that aliens earn constitutional protection only once they enter this country and develop “substantial connections” here. The D.C. Circuit applied that rule to sanctions in Bazzi v. Gacki (2020), explaining that foreign nationals “do not suddenly acquire constitutional rights whenever the United States sanctions them.”

The complaint says each judge kept a New York bank account, and each was frozen. A bank account is not a substantial connection, and the courts have drawn that line clearly. In 32 County Sovereignty Committee v. Department of State, the D.C. Circuit denied due-process rights to a foreign group whose members merely “utilized a bank account” here. And even if they had such rights, they actually did get all the process they were due: The State Department gave the basis for each designation the very day it issued.

The takings claim is even worse, because freezing property is not the same as taking it. As the D.C. Circuit held in Holy Land Foundation v. Ashcroft, “blockings under Executive Orders are temporary deprivations that do not vest the assets in the Government,” and so “do not, as a matter of law, constitute takings.” As the Federal Circuit explained in Paradissiotis v. United States: economic sanctions “would hardly be sanctions if the foreign targets of the sanctions could simply stand in line to be compensated for the losses those sanctions caused them.”

The complaint’s headline theory is that the sanctions exceed the statute because they violate international law. They do not, but it would not matter if they did. The United States never joined the Rome Statute, and a nation is not bound by a treaty court it declined to join; blocking the assets of its officials breaches no obligation the United States actually owes.

Now assume the sanctions did violate international law. It changes nothing. International law narrows a statute only one way, through interpretation, and only when the text leaves room. The Charming Betsy canon reads a statute in harmony with the law of nations where it can. International Emergency Economic Powers Act (IEEPA) authorization to “block” the property of foreign nationals leaves nothing to read into. The canon never engages. Nor can it be pried into a substantive veto, because international law does not override a controlling statute: An unratified treaty creates no domestic law (Medellín v. Texas), customary international law governs only “where there is no treaty and no controlling executive or legislative act” (The Paquete Habana), and a court may not bend a statute toward “non-self-executing treaties or customary international law” (Al-Bihani v. Obama). Strip away the vocabulary, and the plaintiffs are asking an American court to hold that a foreign tribunal outranks Congress. No domestic litigant could win that. Neither can three foreign judges.

The rest of the arguments fall just as fast. The American Service-Members’ Protection Act does not preclude these sanctions; implied repeals are a rarity, and two statutes pointing the same direction are not a contradiction. The claim that there is no real “national emergency” asks a court to grade the president’s foreign policy, which the Supreme Court, in Regan v. Wald (1984), called a matter “so exclusively entrusted to the political branches” as to be “largely immune from judicial inquiry.” In fact, because the president acted on express authorization from Congress, his order sits in the strongest posture the law recognizes, owed under Dames & Moore v. Regan (1981) “the strongest of presumptions and the widest latitude of judicial interpretation.” And the plaintiffs’ best case, the Federal Circuit’s 2025 decision striking down the IEEPA tariffs in V.O.S. Selections v. Trump, actually cuts directly against them: It faulted the tariffs as unprecedented while blessing the statute’s historic core, i.e., the power “to freeze assets” and “impose targeted sanctions on hostile regimes and individuals.”

Every count here fails on well-settled law, and the irony is that the lawyers who filed it already know which argument might have had a chance of winning. Instead, they built their complaint around the empty space where that argument belongs, because their clients are foreign judges in The Hague and the First Amendment was never theirs to raise.