A Name to Arms In opposition to Fortress America – EJIL: Discuss! – Melissas Meals Freedom

Being a world lawyer can typically really feel like being a librarian in the midst of a riot. You might be deeply invested in the concept that there are guidelines – impeccable authorized guidelines – that, if adopted, would make the world a greater, extra orderly, place. You clutch well-thumbed and totally annotated copies of the Nicaragua case, the Rome Statute and Oppenheim’s Worldwide Regulation, that designate precisely how all the things ought to work, if solely individuals would cease upturning chairs and setting issues on hearth lengthy sufficient to hear. Undeterred by flying books to the pinnacle, you launch sternly-worded statements, quote precedents, seek the advice of tribunals, ask councils to difficulty resolutions, even interact in focused shushing (‘comply or I’ll publicly launch your browser historical past’). However the rioters persist in throwing round treaty texts like Molotov cocktails. Ultimately the library itself is on hearth. With a theatrical flourish, the doorways fly open and in walks Donald Trump. He surveys the room, nods approvingly on the chaos and declares ‘This librarian is biased! She’s making an attempt to implement guidelines that don’t profit me! She is the issue!’. He then buys the whole constructing and turns it into a non-public membership, promoting memberships for $49.99 (payable in crypto-currency). Sensing a possibility, you apply for entry – in spite of everything, you’ve gotten appreciable experience in regulatory compliance. Safety blocks your path, providing you with a glance often reserved for tele-marketers and individuals who nonetheless cite the Kellogg-Briand Pact with a straight face: ‘We don’t settle for librarians’. You be taught you might be on a watchlist for these exhibiting ‘extreme dedication to the rule of legislation’. It’s sufficient to make you swap your authorized ideas for a enterprise card and rebrand as a company lawyer.

FORTRESS AMERICA & ICC SANCTIONS

One apparent takeaway from this analogy is that worldwide legislation has an enforcement drawback. And that’s true – it does. However, as issues presently stand, that’s not its greatest drawback. There’s something graver and probably extra destabilizing at play. One other difficulty exemplified by the above analogy is that the USA has a world legislation drawback. Nonetheless, there’s cause to hesitate. It doesn’t appear fairly proper to attribute the current authorized disaster to the USA as we’ve come to realize it within the worldwide authorized system – the US that, for all its contradictions, has typically championed the very establishments it now resists.

What we’re coping with right here is one thing very totally different. Trump’s America is in some ways appearing like a brand new nation on the worldwide stage. A rustic that doesn’t simply push again in opposition to worldwide legislation however actively undermines its foundations once they battle with nationwide pursuits. Right here, it is likely to be fascinating to introduce the idea of Fortress America – a state that’s starting to outline itself by insularity, transactional diplomacy, and a deep suspicion of world establishments. Fortress America isn’t concerned with cooperation with these outdoors it except it serves fast nationwide acquire, and it definitely isn’t keen to undergo exterior authorized scrutiny.

It’s this mindset that led to President Trump’s Government Order on 6 February 2025 imposing sanctions on the Worldwide Prison Courtroom. In fact, the Trump administration first sanctioned the ICC again in 2020, however this time the stakes really feel increased. The gravity of those sanctions requires nearer examination. President Trump issued the Government Order imposing sanctions beneath the Worldwide Emergency Financial Powers Act (IEEPA), which entitles the President to take motion ‘to take care of any uncommon and extraordinary menace…to the nationwide safety, international coverage or economic system of the USA, if the President declares a nationwide emergency with respect to such menace’. Within the Government Order, the menace recognized is ‘any effort by the ICC to research, arrest, detain, or prosecute’ any US nationwide, any particular person lawfully in the USA or any international nationwide or lawful resident of a US ally that has not consented to ICC jurisdiction over that particular person.

The targets of the sanctions are each main and secondary. The first sanctions hit ICC employees immediately and their fast members of the family. The Prosecutor Karim Khan has already been designated, with extra names anticipated inside 60 days. The secondary sanctions widen the online significantly. They apply to:

(1) Anybody who assists, sponsors or offers monetary, materials or technological help to a chosen particular person;
(2) Anybody who makes donations for the good thing about a chosen particular person; or
(3) Anybody who offers funds, items and companies to – or receives them from – a chosen particular person.

The penalty for violating the Government Order is twenty years in jail and/or a effective of as much as US$1 million for wilful violations.

It’s tempting to view these sanctions as symbolic or mere diplomatic signalling. We’d dismiss the potential results as marginal – they cease the Prosecutor transiting by means of Los Angeles airport and his Yankees’ membership is likely to be frozen. But such assumptions entail a severe underestimation of the stakes, each for the Courtroom and for third events. Even when the Workplace for International Belongings Management (OFAC) takes a light-touch strategy (which is certainly not clear), the secondary sanctions co-opt non-public events into being a part of the construction that makes sanctions impactful. Banks, monetary establishments and companies are inclined to undertake a extremely cautious stance when navigating sanctions regimes. Somewhat than risking potential violations, they typically err on the aspect of overcompliance. The mere existence of sanctions creates a chilling impact, main these entities to keep away from any transactions which may even tangentially implicate the sanctioned occasion, whatever the precise authorized thresholds.

The coolness-effect will not be merely monetary however extends additionally to freedom of speech and freedom of affiliation. Dangers are entailed for US teachers, NGOs, companies or people who want to submit an amicus curiae temporary to the ICC, host or attend workshops involving ICC officers, undertake ICC internships or act in any advisory capability to the Prosecutor. People and entities might take some restricted reassurance from the latest success by the Basis for International Political Trade to reverse OFAC’s refusal to allow them to host designated audio system at a convention. Nevertheless, it must also be famous that this reversal was made on the situation that the related NGO ‘has not and won’t present any specialised coaching or help to the Audio system’. The US Supreme Courtroom’s choice in Holder v Humanitarian Regulation Undertaking stays good legislation, regardless of criticism in opposition to it. Based on the discovering on this case, authorized coaching of a chosen entity (albeit within the type of speech meant to advertise peaceful lawful conduct) was not constitutionally protected by the First Modification.

THE LEGAL INTEGRITY INDEX

The ICC sanctions transcend easy violations; they signify a deliberate weaponization of a person state’s energy in opposition to the worldwide authorized order, aiming to dismantle key establishments and ideas that maintain the rule of legislation on the international degree. This consists of ideas deeply embedded in each US constitutional id and worldwide authorized norms: the precept of judicial independence; freedom of speech; freedom of affiliation; in addition to post-World Conflict commitments to forestall and guarantee accountability for atrocity crimes; the prohibition on coercion; the core prohibition in opposition to aggression.

These sanctions are usually not simply an ‘ICC drawback’ answerable by way of a level of wise scepticism in regards to the ICC. That is a part of a broader assault in opposition to multilateralism and international accountability mechanisms, together with the Worldwide Courtroom of Justice, the WTO Appellate Physique and the post-war human rights infrastructure. As Diane Desierto has mentioned, on 4 February 2025, President Trump issued an Government Order ‘Reviewing US Assist to All Worldwide Organizations’.

It’s fascinating to contemplate the ICC sanctions in opposition to the backdrop of a spectrum of the way by which states work together with worldwide legislation. I’ll name this a type of Authorized Integrity Index. This index connects to the broader concept that worldwide authorized violations exist on a spectrum. The Authorized Integrity Index isn’t only a binary of lawful/illegal. As an alternative, it appears at how states relate to worldwide legislation over time and the character of their violations.

• At one finish, we’ve the Enforcers – states that don’t simply comply with worldwide legislation, however actively uphold it, utilizing their affect to take care of order and accountability.
• Then there’s the Custodians – the dependable, law-abiding states that help the system however lack the clout to implement it. However the system and its institutional framework isn’t at all times so clear
• Enter the Avengers – states that work to implement worldwide legislation however accomplish that by means of extra-legal means – for instance, unlawful navy actions for authentic functions; illegal arrests with the intention to launch lawful prosecutions; or changing sanctions into reparations.
• Then we’ve the Opportunists or Pragmatists – who play by the principles solely when it fits them, sidestepping their authorized obligations once they develop into inconvenient.
• Worst nonetheless, the Abusers, who don’t simply bend the principles, however actively distort them, manipulating authorized frameworks to justify unlawful actions.
• And at last the Rogues – the states that reject the system altogether, disregarding worldwide legislation and appearing purely on unilateral energy.

A CALL TO ARMS

With the ICC sanctions, Fortress America crosses a crucial threshold – it enters rogue territory. The Trump administration’s aggressive use of sanctions, culminating within the unprecedented focusing on of the Worldwide Prison Courtroom, didn’t simply stretch authorized boundaries. It signalled a broader ideological shift: from a system based mostly on cooperation and collective safety to at least one pushed by neo-isolationism, transactional diplomacy, and uncooked financial energy. I’ll conclude with some proposed concepts that is likely to be carried out by these within the US and the worldwide neighborhood wishing to withstand this motion – some authorized; some diplomatic (some much less so); some which may push on the boundaries of standard technique:

• Deploy Article 70 of the Rome Statute: US sanctions are an act of obstruction of justice criminalized beneath Article 70 of the Rome Statute, which prohibits ‘retaliating in opposition to an official of the Courtroom on account of duties carried out by that official’ or ‘impeding, intimidating or corruptly influencing an official of the Courtroom for the aim of forcing or persuading that official to not carry out, or to carry out improperly, his or her duties’. Any US official that engages in motion opposite to Article 70 opens themselves as much as the chance of prison prosecution. If arrest warrants are issued for Article 70 violations, people topic to those warrants threat being arrested in the event that they journey to the territory of any state occasion to the Worldwide Prison Courtroom.
• Amend the EU Blocking Statute to incorporate ICC sanctions: The EU Blocking Statute prohibits EU firms from complying with sure US extraterritorial sanctions, nullifies the impact of any international court docket ruling based mostly on US sanctions and permits EU operators to recuperate in court docket damages attributable to the extraterritorial utility of the sanctions. Amending the EU Blocking Statute to incorporate the ICC sanctions would formalize EU opposition and supply authorized cowl for European people and entities working with the Courtroom.
• Apply for authorization from OFAC and problem refusals in US courts: Have interaction the US authorized system by searching for particular licences from OFAC for any transactions or involvement with the ICC. If exemptions are denied, strategic litigation might problem the overreach of sanctions beneath the IEEPA, presumably invoking challenges on the premise of freedom of speech or freedom of affiliation (First Modification); due course of (Fifth Modification) or the Administrative Process Act if decision-making is likely to be thought-about arbitrary or capricious or exceed statutory authority.
• Assist Home Prosecutions Inside Affected Jurisdictions: Present enhanced help to states with territorial jurisdiction (eg. Afghanistan or Palestine) to conduct their very own prosecutions beneath the precept of complementarity. This not solely sidesteps US sanctions but in addition strengthens native authorized capability.
• Strengthen ICC monetary and technological independence: The US has lengthy been thought to be an ‘indispensable accomplice’ to multilateral organizations, together with the ICC. The Trump administration’s choice to revoke this help signifies that worldwide organizations are going to need to work to diversify their funding sources, maybe partaking philanthropic foundations and personal donors, collaborating with monetary establishments, tech firms and analysis establishments outdoors the US and maybe making a long-term funding fund.

As others similar to Kim-Lane Scheppele, Eyal Benvenisti, Mary Ellen O’Connell, Diane Desierto and others have urged, legal professionals can’t keep quiet within the face of Fortress America’s erosion of the rule of legislation. Worldwide legislation isn’t just a algorithm, it’s a dwelling system, constructed over generations and sustained by those that refuse to let it’s dismantled. Historical past has proven that even probably the most aggressive assaults in opposition to this order may be resisted, circumvented and in the end neutralized. It will require political will, creativity and solidarity.

An prolonged model of this piece will seem in a particular version of the Fordham Worldwide Regulation Journal on Financial Sanctions and the Regulation: Targets, Enforcement, and Procedural and Substantive Limits (forthcoming, 2025).