USA vs. the International Criminal Court

US President Donald Trump signed an executive order “On Blocking Property Of Certain Persons Associated With The International Criminal Court”. In other words, a legal mechanism has been introduced for imposing sanctions against employees of a large international organisation and related persons.

Donald Trumps order, apparently, is connected with the “Afghan dossier” of the ICC. In March 2020, the ICC Appeals Chamber approved the motion of the ICC prosecutor’s office to investigate possible crimes in Afghanistan. Not only the Taliban, but also the US military, could be targeted by an investigation. The Presidents executive order is a clear signal that any actions against the United States and its allies will be harshly suppressed. The national interests of major powers still outweigh the capabilities of multilateral institutions, especially in sensitive military-political spheres.

US President Donald Trump signed an executive order “On Blocking Property Of Certain Persons Associated With The International Criminal Court”. In other words, a legal mechanism has been introduced for imposing sanctions against employees of a large international organisation and related persons. Why has this decision emerged from the experience of the sanctions policy, and where will it lead?

President Trump’s executive order introduces a national emergency in connection with a particular threat to US national security and foreign policy”. This wording is standard and is used in the 1977 International Emergency Economic Powers Act (IEEPA). The law empowers the president to impose sanctions against foreign countries, as well as their citizens and organisations. Sanctions are seen as a tool to resolve political issues that make up the essence of a national emergency.

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IEEPA emergency situations are introduced on a specific topic or issue. That is, many emergency situations can coexist at the same time. The decision regarding the International Criminal Court (ICC) constituted the thirty-first set of US sanctions. Moreover, it clearly stands out among them. Its main difference is that the key source of the special threat is a large international organisation. Moreover, its activities are largely associated with one of the worlds most significant problems the criminal prosecution of war criminals and all those whose crimes are associated with wars, as well as civil and international conflicts. None of the thirty other emergencies were remotely similar in nature. They are mainly associated either with the targeting of individual countries (Iran, DPRK, Russia, Belarus, Syria, etc.) or with functional topics (human rights, terrorism, external interference in internal affairs, information security, etc.).

Trump’s order allows the executive branch of the US government (the Department of State, in collaboration with the Treasury Department and the Attorney General) to impose bans and visa sanctions on individuals working or associated with the ICC. Sanctions can be imposed if these individuals are involved in attempts to investigate, arrest, detain or prosecute American citizens without the consent of the United States. The same goes for the American allies. Such sanctions typically entail being listed in the US Treasury Departments SDN-List.

In fact, this means that US citizens and organisations are banned from engaging in economic transactions with the persons specified in the list. Given the broad interpretation of US jurisdiction by the US authorities, as well as the practice of using secondary sanctions against foreigners, this ban goes far beyond America and effectively extends to almost all countries. This means, for example, that a court officer or any person who assisted in his work against US citizens is targeted with sanctions, he or she will encounter problems, even at the personal level (for example, when opening or using a bank account). So far, no such sanctions have been imposed. However, the executive order of the president creates a legal mechanism for their use. And a decision can be taken already at the working level of the executive branch.

The International Criminal Court was established on July 17, 1998 (Rome Statute of the International Criminal Court). The idea of its creation arose in the late 1940s, after the end of World War II. However, during the Cold War, the idea wasnt further developed, until 1989. The creation of the court was accelerated by the war in Yugoslavia and the genocide in Rwanda. To bring war criminals to justice, the UN Security Council established two ad hoc tribunals.

However, their work was directly related to the aforementioned conflicts and was not universal. In 1998, the UN General Assembly called for a diplomatic conference in Rome to be held under the auspices of the UN, which resulted in the establishment of the court. The Rome Statute entered into force in 2002. Currently, 123 countries have signed and ratified the document. Among them are EU countries, almost all countries of Central and Latin America, Canada, Australia, Japan, and most of the countries of Africa.

The problem is that some major military and political powers, as well as significant regional players, have refused to participate in the organisation for a number of reasons. Among them are China and India. Russia signed the document in 2000, but did not ratify it. In 2016, President Vladimir Putin signed a decree “On the intention of the Russian Federation not to become party to the Rome Statute of the International Criminal Court.”

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The United States has been one of the most consistent opponents of the ICC. As US ICC negotiator David Schaeffer noted in his comments to the US Congress, US military personnel participating in international peacekeeping missions and other operations can be held accountable by the ICC, even if the US is not party to the treaty. This, effectively, limits the use of armed forces abroad. US President Bill Clinton signed the Rome Statute in 2000, but noted that he did not recommend that the new president submit the document for ratification by the Senate until its fundamental defects were corrected and key US claims were taken into account. A key US objection was to the ICC’s ability to bypass American law when prosecuting US soldiers; that is, violating their constitutional rights. Moreover, in theory, even senior US officials could be prosecuted. Accordingly, Washingtons key requirement was that the ICC must not be able to prosecute US citizens or the citizens of allied nations.

In 2002, the PL 107-206, or American Service-Members’ Protection Act (ASPA), entered into force in the United States. The law prohibits US cooperation with the ICC, including extradition, financing, investigation assistance, etc. Section 2008 of the law gives the President of the United States the right to use any available means (theoretically, even military force) to release persons detained or taken into custody by the International Criminal Court. The only means the president is forbidden to use for these purposes is bribery. In other words, the executive order of the President on the national emergency in connection with the ICC is legally provided for, not only by the IEEPA, but by a special law related to this topic (ASPA).

Donald Trumps order, apparently, is connected with the “Afghan dossier” of the ICC. In March 2020, the ICC Appeals Chamber approved the motion of the ICC prosecutor’s office to investigate possible crimes in Afghanistan. Not only the Taliban, but also the US military, could be targeted by an investigation. The Presidents executive order is a clear signal that any actions against the United States and its allies will be harshly suppressed. The national interests of major powers still outweigh the capabilities of multilateral institutions, especially in sensitive military-political spheres.

First published in the Valdai Discussion Club.