Being an international lawyer can sometimes feel like being a librarian in the middle of a riot. You are deeply invested in the idea that there are rules – impeccable legal rules – that, if followed, would make the world a better, more orderly, place. You clutch well-thumbed and thoroughly annotated copies of the Nicaragua case, the Rome Statute and Oppenheim’s International Law, that explain exactly how everything should work, if only people would stop upturning chairs and setting things on fire long enough to listen. Undeterred by flying books to the head, you release sternly-worded statements, quote precedents, consult tribunals, ask councils to issue resolutions, even engage in targeted shushing (‘comply or I’ll publicly release your browser history’). But the rioters persist in throwing around treaty texts like Molotov cocktails. Eventually the library itself is on fire. With a theatrical flourish, the doors fly open and in walks Donald Trump. He surveys the room, nods approvingly at the chaos and declares ‘This librarian is biased! She’s trying to enforce rules that don’t benefit me! She is the problem!’. He then buys the entire building and turns it into a private club, selling memberships for $49.99 (payable in crypto-currency). Sensing an opportunity, you apply for entry – after all, you have considerable expertise in regulatory compliance. Security blocks your path, giving you a look usually reserved for tele-marketers and people who still cite the Kellogg-Briand Pact with a straight face: ‘We don’t accept librarians’. You learn you are on a watchlist for those showing ‘excessive commitment to the rule of law’. It’s enough to make you swap your legal principles for a business card and rebrand as a corporate lawyer.
FORTRESS AMERICA & ICC SANCTIONS
One obvious takeaway from this analogy is that international law has an enforcement problem. And that is true – it does. But, as things presently stand, that is not its biggest problem. There is something graver and potentially more destabilizing at play. Another issue exemplified by the above analogy is that the United States has an international law problem. Still, there is reason to hesitate. It does not seem quite right to attribute the present legal crisis to the United States as we have come to know it in the international legal system – the US that, for all its contradictions, has often championed the very institutions it now resists.
What we’re dealing with here is something very different. Trump’s America is in many ways acting like a new country on the international stage. A country that doesn’t just push back against international law but actively undermines its foundations when they conflict with national interests. Here, it might be interesting to introduce the concept of Fortress America – a state that is beginning to define itself by insularity, transactional diplomacy, and a deep suspicion of global institutions. Fortress America isn’t interested in cooperation with those outside it unless it serves immediate national gain, and it certainly isn’t willing to submit to external legal scrutiny.
It is this mindset that led to President Trump’s Executive Order on 6 February 2025 imposing sanctions on the International Criminal Court. Of course, the Trump administration first sanctioned the ICC back in 2020, but this time the stakes feel higher. The gravity of these sanctions calls for closer examination. President Trump issued the Executive Order imposing sanctions under the International Emergency Economic Powers Act (IEEPA), which entitles the President to take action ‘to deal with any unusual and extraordinary threat…to the national security, foreign policy or economy of the United States, if the President declares a national emergency with respect to such threat’. In the Executive Order, the threat identified is ‘any effort by the ICC to investigate, arrest, detain, or prosecute’ any US national, any person lawfully in the United States or any foreign national or lawful resident of a US ally that has not consented to ICC jurisdiction over that person.
The targets of the sanctions are both primary and secondary. The primary sanctions hit ICC staff directly and their immediate family members. The Prosecutor Karim Khan has already been designated, with more names expected within 60 days. The secondary sanctions widen the net considerably. They apply to:
(1) Anyone who assists, sponsors or provides financial, material or technological support to a designated person;
(2) Anyone who makes donations for the benefit of a designated person; or
(3) Anyone who provides funds, goods and services to – or receives them from – a designated person.
The penalty for violating the Executive Order is twenty years in prison and/or a fine of up to US$1 million for wilful violations.
It is tempting to view these sanctions as symbolic or mere diplomatic signalling. We might dismiss the potential effects as marginal – they stop the Prosecutor transiting through Los Angeles airport and his Yankees’ membership might be frozen. Yet such assumptions entail a serious underestimation of the stakes, both for the Court and for third parties. Even if the Office for Foreign Assets Control (OFAC) takes a light-touch approach (which is by no means clear), the secondary sanctions co-opt private parties into being part of the structure that makes sanctions impactful. Banks, financial institutions and corporations tend to adopt a highly cautious stance when navigating sanctions regimes. Rather than risking potential violations, they often err on the side of overcompliance. The mere existence of sanctions creates a chilling effect, leading these entities to avoid any transactions that might even tangentially implicate the sanctioned party, regardless of the actual legal thresholds.
The chill-effect is not merely financial but extends also to freedom of speech and freedom of association. Risks are entailed for US academics, NGOs, businesses or individuals who wish to submit an amicus curiae brief to the ICC, host or attend workshops involving ICC officials, undertake ICC internships or act in any advisory capacity to the Prosecutor. Individuals and entities may take some limited reassurance from the recent success by the Foundation for Global Political Exchange to reverse OFAC’s refusal to permit them to host designated speakers at a conference. However, it should also be noted that this reversal was made on the condition that the relevant NGO ‘has not and will not provide any specialized training or assistance to the Speakers’. The US Supreme Court’s decision in Holder v Humanitarian Law Project remains good law, despite criticism against it. According to the finding in this case, legal training of a designated entity (albeit in the form of speech intended to promote peaceable lawful conduct) was not constitutionally protected by the First Amendment.
THE LEGAL INTEGRITY INDEX
The ICC sanctions go beyond simple violations; they represent a deliberate weaponization of an individual state’s power against the international legal order, aiming to dismantle key institutions and principles that sustain the rule of law at the global level. This includes principles deeply embedded in both US constitutional identity and international legal norms: the principle of judicial independence; freedom of speech; freedom of association; as well as post-World War commitments to prevent and ensure accountability for atrocity crimes; the prohibition on coercion; the core prohibition against aggression.
These sanctions are not just an ‘ICC problem’ answerable in terms of a degree of sensible scepticism about the ICC. This is part of a broader assault against multilateralism and global accountability mechanisms, including the International Court of Justice, the WTO Appellate Body and the post-war human rights infrastructure. As Diane Desierto has discussed, on 4 February 2025, President Trump issued an Executive Order ‘Reviewing US Support to All International Organizations’.
It is interesting to consider the ICC sanctions against the backdrop of a spectrum of ways in which states interact with international law. I will call this a sort of Legal Integrity Index. This index connects to the broader idea that international legal violations exist on a spectrum. The Legal Integrity Index isn’t just a binary of lawful/unlawful. Instead, it looks at how states relate to international law over time and the nature of their violations.
- At one end, we have the Enforcers – states that don’t just follow international law, but actively uphold it, using their influence to maintain order and accountability.
- Then there’s the Custodians – the reliable, law-abiding states that support the system but lack the clout to enforce it.
- Enter the Avengers – states that work to enforce international law but do so through extra-legal means – for example, illegal military actions for legitimate purposes; unlawful arrests in order to launch lawful prosecutions; or converting sanctions into reparations.
- Then we have the Opportunists or Pragmatists – who play by the rules only when it suits them, sidestepping their legal obligations when they become inconvenient.
- Worst still, the Abusers, who don’t just bend the rules, but actively distort them, manipulating legal frameworks to justify illegal actions.
- And finally the Rogues – the states that reject the system altogether, disregarding international law and acting purely on unilateral power.
A CALL TO ARMS
With the ICC sanctions, Fortress America crosses a critical threshold – it enters rogue territory. The Trump administration’s aggressive use of sanctions, culminating in the unprecedented targeting of the International Criminal Court, didn’t just stretch legal boundaries. It signalled a broader ideological shift: from a system based on cooperation and collective security to one driven by neo-isolationism, transactional diplomacy, and raw economic power. I will conclude with some proposed ideas that might be implemented by those in the US and the international community wishing to resist this action – some legal; some diplomatic (some less so); some that might push at the boundaries of conventional strategy:
- Deploy Article 70 of the Rome Statute: US sanctions are an act of obstruction of justice criminalized under Article 70 of the Rome Statute, which prohibits ‘retaliating against an official of the Court on account of duties performed by that official’ or ‘impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading that official not to perform, or to perform improperly, his or her duties’. Any US official that engages in action contrary to Article 70 opens themselves up to the risk of criminal prosecution. If arrest warrants are issued for Article 70 violations, individuals subject to these warrants risk being arrested if they travel to the territory of any state party to the International Criminal Court.
- Amend the EU Blocking Statute to include ICC sanctions: The EU Blocking Statute prohibits EU companies from complying with certain US extraterritorial sanctions, nullifies the effect of any foreign court ruling based on US sanctions and allows EU operators to recover in court damages caused by the extraterritorial application of the sanctions. Amending the EU Blocking Statute to include the ICC sanctions would formalize EU opposition and offer legal cover for European individuals and entities working with the Court.
- Apply for authorization from OFAC and challenge refusals in US courts: Engage the US legal system by seeking specific licences from OFAC for any transactions or involvement with the ICC. If exemptions are denied, strategic litigation could challenge the overreach of sanctions under the IEEPA, possibly invoking challenges on the basis of freedom of speech or freedom of association (First Amendment); due process (Fifth Amendment) or the Administrative Procedure Act if decision-making might be considered arbitrary or capricious or exceed statutory authority.
- Support Domestic Prosecutions Within Affected Jurisdictions: Provide enhanced support to states with territorial jurisdiction (eg. Afghanistan or Palestine) to conduct their own prosecutions under the principle of complementarity. This not only sidesteps US sanctions but also strengthens local legal capacity.
- Strengthen ICC financial and technological independence: The US has long been regarded as an ‘indispensable partner’ to multilateral organizations, including the ICC. The Trump administration’s decision to revoke this support means that international organizations are going to have to work to diversify their funding sources, perhaps engaging philanthropic foundations and private donors, collaborating with financial institutions, tech companies and research institutions outside the US and perhaps creating a long-term investment fund.
As Kim-Lane Scheppele, Eyal Benvenisti, Mary Ellen O’Connell, Diane Desierto and others have urged, lawyers cannot stay quiet in the face of Fortress America’s erosion of the rule of law. International law is not just a set of rules, it is a living system, built over generations and sustained by those who refuse to let it be dismantled. History has shown that even the most aggressive attacks against this order can be resisted, circumvented and ultimately neutralized. This will require political will, creativity and solidarity.
An extended version of this piece will appear in a special edition of the Fordham International Law Journal on Economic Sanctions and the Law: Goals, Enforcement, and Procedural and Substantive Limits (forthcoming, 2025).
