Congress Must Reform Sanctions Law to Avoid ICC Penalties from Happening Again

The Biden administration has finally rescinded the misguided Trump administration sanctions against International Criminal Court (ICC) prosecutors. This is a welcome reversal. The sanctions imposed severe financial restrictions on ICC Prosecutor Fatou Bensouda and senior prosecution official Phakiso Mochochoko, and prevented Americans from working with the Court. The impetus for levying these penalties was ICC investigations into potential criminal acts in the Afghanistan conflict (including related CIA black sites) and in Palestine, which could ensnare Americans and Israelis. The U.S. government takes the view that States such as the United States and Israel, that are not parties to the ICC, should not be at risk of prosecution by the Court.

No matter the differing views on the court’s jurisdiction, the use of sanctions in June 2020 to bully a 123-member international judicial institution was an egregious abuse of sanctions powers by the Trump administration. It also weakened U.S. national security by alienating allies, diminishing global trust in the United States’ responsible stewardship of the international banking system, and tarnishing its image as a supporter of accountability for mass atrocities.

But reversing these sanctions is not enough. Ending the ICC sanctions will be a temporary victory at best if the next president can re-impose them, or engage in even more egregious abuses of sanctions powers, with the stroke of a pen. To prevent that from happening, Congress must reform the International Emergency Economic Powers Act (IEEPA).

Under IEEPA, a president has too much leeway. Sanctions can be wielded to address any situation deemed an “unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” Under such broad criteria, the list of possible threats includes climate change, immigration, trade, and practically anything on the internet. An organization or person somehow connected to one of those issues could be sanctioned either as an actual threat or a political foil.

And Americans are at risk of becoming targets too. Nothing in IEEPA limits the reach of sanctions to foreign persons. Although the vast majority of targets are foreign governments or foreign nationals overseas, the power to sanction Americans is not merely theoretical. After the 9/11 attacks, President George W. Bush sanctioned a number of Muslim American charities and individuals on suspicion of supporting terrorism. In some of these cases, the targets were sanctioned even before the government determined they qualified. In those instances, the government relied on an IEEPA provision  that was included through the USA PATRIOT Act, and that allows IEEPA targets to be “blocked pending investigation.” The 9/11 Commission reviewed some of these actions and determined they raised “substantial civil liberty concerns,” but the provision remains in the statute.

The main curb on abuses of IEEPA’s sweeping sanctions powers is a president’s forbearance, but as the last administration, in particular, showed, self-restraint is a weak surrogate for substantive restrictions. Even though the president’s powers to sanction through IEEPA were granted by Congress, under the current regime, Congress would need to muster a veto-proof majority to terminate a sanctions program.

Nor do the courts offer a meaningful avenue for redress. If a sanctions target brings a suit to challenge the U.S. government’s decision to sanction them, the only evidence the court can look at is the record compiled by the government—which can include all sorts of information that might not normally be allowed as evidence, including hearsay. Moreover, also thanks to a change to IEEPA implemented by the USA PATRIOT Act, the government can rely on evidence that the target never gets to see or address. The court must uphold the government’s decision as long as it wasn’t “arbitrary or capricious.” But the criteria for particular sanctions, as established in the president’s executive order that creates the particular sanctions program, are not subject to judicial review. Deleterious humanitarian impacts, such as ordinary civilians’ inability to obtain medical supplies or rebuild infrastructure, and a lack of transparency, are also problems.

But sanctions can, in appropriate circumstances, be powerful tools for good as well. For instance, targeted sanctions under the Global Magnitsky Act (which also rely on the IEEPA) have put pressure on human rights abusers and corrupt actors. Sanctions also permitted a relatively rapid reaction to the recent coup in Myanmar by targeting senior military figures, although as yet it would be difficult to identify any concrete improvement in conduct occasioned by those sanctions.

Fortunately, retaining and strengthening the useful aspects of sanctions, and reducing the possibility for abuse and harmful side effects, are not incompatible goals. Indeed, they may be mutually reinforcing. Sanctions that are narrowly and responsibly targeted can be effective without denying due process to Americans or humanitarian aid to vulnerable populations overseas. And shoring up Congress’ role as a check against presidential abuse could actually enhance sanctions’ effectiveness. A more carefully controlled and monitored set of sanctions powers would likely result in greater support both domestically and internationally, and therefore further contribute to U.S. security.

The Biden administration has committed to a thoroughgoing review of the use of sanctions. But Congress also has some reflecting to do. It is the only body that can reform IEEPA to institute meaningful checks, such as a requirement that Congress approve new sanctions programs within a certain period of time. Enhanced procedural safeguards for targets, humanitarian protections, and more rigorous oversight provisions are also needed. During her confirmation hearings, Treasury Secretary Janet Yellen stated that she wanted to make sure sanctions were used “strategically and appropriately.” Congress can help ensure that happens in this administration, and in future ones, through reform of IEEPA.

Image: The International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda (C), holds a press conference during her visit to look into allegations of extreme violence on May 3, 2018 in Kinshasa. Photo by JOHN WESSELS/AFP via Getty Images

 

About the Author(s)

Andrew Boyle

Counsel in the Liberty and National Security Program at the Brennan Center for Justice; previously prosecuted senior Khmer Rouge leaders on behalf of the United Nations for war crimes, crimes against humanity, and genocide - Follow him on Twitter (@J_Andrew_Boyle).