Judge bars Trump administration from punishing 2 law professors for ICC work

By Zach Montage

A federal judge on Wednesday permanently barred the Trump administration from imposing penalties on two law professors over their involvement with the International Criminal Court, finding that the threat violated their First Amendment rights.

In a 22-page opinion, Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York concluded that the president had used the threat of legal penalties to force Gabor Rona and Lisa Davis, both law professors in New York, to abandon their association with the international court in The Hague, which prosecutes cases of genocide, war crimes and crimes against humanity. The judge definitively barred the government from taking any action to follow through on the threat.

Rona and Davis had each advised the ICC’s chief prosecutor, Karim Khan, or supported his office’s work through its investigations and prosecutions, and have written and spoken extensively about international law.

The United States is not among the 125 countries that are party to the Rome Statute, which created the International Criminal Court, but has supported a number of its investigations, including in cases involving Ukraine, Sudan and Myanmar.

Under an executive order President Donald Trump signed in February, the professors faced the possibility of criminal and civil penalties because of their association with the court. The ICC has investigated the United States and Israel, and last year issued arrest warrants for Prime Minister Benjamin Netanyahu of Israel and his former defense minister related to their handling of the war in the Gaza Strip.

Trump’s order carried the possibility of jail terms of up to 20 years for anyone supporting the International Criminal Court in its work.

Furman’s ruling mirrored the conclusions of another judge during Trump’s first term, who found in January 2021 that a similar executive order Trump had signed likely forced Rona and three other professors to abandon or reconsider speech and legal advocacy out of fear that the order could be enforced against them.

At the time, Judge Katherine Polk Failla of the U.S. District Court for the for the Southern District of New York found that the group, who had mounted a legal challenge, were likely to succeed.

Upon taking office, former President Joe Biden rescinded Trump’s original order, but when Trump returned to office this year, he revived much of its substance — and some identical language — in the order he signed in February. The order cited presidential powers under the International Economic Emergency Powers Act — the same act he has used to justify many tariffs — and accused the ICC of abusing its power.

In his opinion on Wednesday, Furman, an Obama appointee, stated that the concerns Failla raised in the original lawsuit remained relevant.

“In law, as in life, two wrongs do not make a right,” he wrote.

Furman concluded by noting the chilling effect the president’s February order had on Rona and Davis, prompting them to pare back their work in support of the court and in writing about international law.

Earlier this month, a federal judge in Maine found that Trump’s February order encroached on the First Amendment rights of two human rights activists who had also worked with the court.