Lawfare Daily: Should the U.S. Sanction the ICC, with Nema Milaninia
Feb 3, 2025
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Nema Milaninia, a former prosecutor at the International Criminal Court and current partner at King & Spalding, shares insights on recent U.S. sanctions targeting the ICC. She explores motivations behind these sanctions, addressing criticisms of the Court while defending its role in upholding international law. Milaninia argues that sanctions could harm the ICC's mission and impact global accountability efforts. The conversation delves into the implications for U.S. foreign policy and the existential threats posed to an already vulnerable institution.
The U.S. Congress and Trump administration’s sanctions against the ICC are politically motivated, highlighting divisions in bipartisan support for accountability.
Sanctions could significantly impair the ICC's functionality, undermining its role in addressing international crimes and impacting global security frameworks.
Deep dives
Current Sanctions Legislation Status
The ongoing discussion highlights two primary tracks for sanctions against the International Criminal Court (ICC), spearheaded by the U.S. Congress and the Trump administration. One track includes sanctions through executive orders initially enacted during his first term, reinstated on his second term's first day, focusing on allegations concerning U.S. personnel in Afghanistan. The other involves legislative measures that recently gained traction, with a House bill supported by both Democrats and Republicans, aiming to solidify sanctions amid continued investigations into U.S. allies and personnel. However, as debates unfold, political dynamics complicate the movement of these bills, showcasing divisions even among party members regarding the effectiveness and appropriateness of such sanctions.
Motivations Behind Legislative Action
Supporters of legislative sanctions argue that they demonstrate a bipartisan commitment to protecting the U.S. and its allies, primarily Israel, from ICC investigations perceived as biased or politically motivated. The Republicans emphasize that these actions prevent future administrations from easily overturning sanctions, asserting the need for legislative enactments to ground U.S. opposition to the ICC's authority. However, this political maneuvering raises questions about the efficacy of sanctions, especially as some Democrats express concern about their broader implications. The tension lies in finding a balance between supporting allies and respecting the jurisdictional integrity of international institutions tasked with accountability.
Diverging Perspectives on ICC Accountability
While there is widespread acknowledgment of the need for accountability regarding international crimes, agreement falters when considering how the ICC approaches investigations involving U.S. allies like Israel. Critics argue that the ICC, particularly under Prosecutor Khan, has exhibited unequal treatment, which undermines its legitimacy and supports calls for sanctions. Some lawmakers perceive the court's investigations into Israel as politically motivated, influencing their stance on U.S. engagement with the ICC. This bifurcation reflects deeper ideological divides, where both parties grapple with the fine line between supporting the rule of law globally and addressing national interests and alliances.
Consequences of Sanctions on ICC Operations
Imposing sanctions on the ICC could lead to significant operational challenges that hamper its ability to function effectively. Such measures would not only restrict the mobility and resources of designated officials but could also create a chilling effect, discouraging collaboration from third-party entities, including tech companies critical to the court's cybersecurity and operations. Previous sanctions have already shown how they can disrupt institutional workflows and exacerbate tensions with states that oppose ICC investigations. Ultimately, the failure to retain a viable ICC diminishes the global framework for addressing severe international crimes, reducing deterrents for future atrocities and complicating U.S. national security interests.
Nema Milaninia, a former prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia and a current partner at the law firm King & Spalding, joins Lawfare Managing Editor Tyler McBrien to discuss legislation in the U.S. Congress and recent executive actions taken by the Trump administration to, once again, sanction the International Criminal Court.
Milaninia discusses what is motivating the most recent sanctions campaign, broke down the many criticisms—some legitimate, some less so—against the Court, and explained why sanctions, which are typically reserved for criminal organizations, would benefit no one. He also speaks about how, despite the ICC's best efforts to insulate itself, sanctions pose an existential threat to the institution.
