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Reverse Logic: Trump Sanctions the International Criminal Court

The decision by the Trump administration to sanction members of the International Criminal Court defies logic, in so far as there is any logic to sanctions. As a policy tool, such tools are supposedly designed to target specific members of a regime that has fallen into bad ways. In practice, they act as instruments of collective punishment. When used economically, they miss their mark, having the effect of impoverishing the populace while emboldening the pampered and protected elite. The brutal and abusive remain untouched. “The deprivation suffered by civilian populations under sanctions regimes are often violations of economic, social, and cultural human rights,” writes S. P. Marks for the American Journal of Public Health, while also noting that those who impose them tend to make pitiable efforts in terms of “humanitarian exemptions and humanitarian aid.”

Squirrel academics and analysts have tried to evaluate the effectiveness of such punitive approaches in international relations over the years. A research project of 115 impositions of economic sanctions between 1914 and 1990 conducted by Gary Clyde Hufbauer and colleagues found that these worked in 35% of cases. An updated version of the research involved the addition of 50 more cases (to take into account 1990-1998), with similar conclusions. These are not particularly meaningful from a humanitarian perspective, in so far as they use bloodless methodologies. Humanitarian cost and catastrophe tends to wither before the glacial eye of the economist.

In terms of human rights abuses, sanctions have also come to be deployed, though these do come with a certain sanctimony. The Global Magnitsky Accountability Act of 2012 is one such example, authorising the US government to sanction designated human rights offenders and those engaged in corruption. It was named in honour of Sergei Magnitsky, who had purportedly uncovered a fraud of some $230 million in state taxes by Russian officials in 2008. Three years after his death, inflicted after his arrest and torture, he was posthumously tried.

The extraterritorial scope of the act permits the freezing of assets held by purported violators and enables the banning of travel to the United States. This was bound to find inspiration in other jurisdictions, and we are left with a situation, claims Helen Chan, where “Magnitsky-style sanctions have become extremely politicized amid a time of testy geopolitics.” While Chan is referring to the context of uncertainty for businesses, her observations have broader relevance to any entities who operate in such an environment. Will they become the object of interest for overly exercised officials?

The International Criminal Court is a striking case in point. ICC jurisdiction is intended as a policing of international humanitarian and human rights law. But it now faces the glare and disapproval of Trump administration officials for having taken an interest in the predations of US forces in Afghanistan and beyond, an interest that also extends to alleged crimes of Afghan government forces and the Taliban.

Having always had a testy relationship with the United States, the ICC now faces sanctions against its officials after the March 5 decision to authorise chief prosecutor Fatou Bensouda to conduct the investigation. Her remit includes the alleged custodial abuse of some 80 Afghans committed or facilitated by US forces at various global “black sites.” That angle is particularly troubling for the Trump administration, given that such sites were located in state parties to the Rome Statute of the International Criminal Court, namely, Afghanistan, Lithuania, Poland and Romania. This has led to the novel, somewhat vigilante view that US forces can offend the law of humanity in any of the 123 state parties to the Rome Statute and evade accountability before the ICC. This contention, suggests Ambassador David Scheffer, is “precarious” in so far as the US does not challenge the jurisdictional authority of courts in those countries to try US personnel for grave human rights abuses.

Harsh measures against the ICC were already being hinted at in 2018.  In a speech to the Federalist Society, then National Security Adviser John Bolton drew the clearest of lines in the sand of international jurisprudence. “Americans can rest assured that the United States will not provide any form of legitimacy or support to this body. We will not cooperate, engage, fund, or assist the ICC in any way. This president will not allow American citizens to be prosecuted by foreign bureaucrats, and he will not allow other nations to dictate our means of self-defence.”

In April 2019, Bensouda’s ability to travel to the US was revoked by the State Department. In March this year, a cranky Secretary of State Mike Pompeo publically naming staffers and their families working in Bensouda’s office. “We want to identify those responsible for this partisan investigation and their family members who may want to travel to the United States or engage in activity that’s inconsistent with making sure we protect Americans.”

That same month, Peter E. Harrell of the Center for a New American Security examined the prospects of any sanctions levelled against the ICC. Trump would be authorised to do so, he suggested, but it would be tellingly unwise, as it would “trigger a backlash by US allies that would far outweigh any perceived benefits from sanctions.”

On June 11, US President Donald Trump did just that, issuing an executive order targeting officials of the ICC involved in the investigation, including immediate family members. According to the order, the body’s efforts to “investigate, arrest, detain or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United Stats allies and who are not parties to the Rome Statute or have not otherwise consent to ICC jurisdiction” constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States.”

The measures are intended to be disruptive, including the freezing of assets and limits on movement. Other measures include the prevention of entry into the United States of the officials in question, and the prohibition of “any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to … this order.”

The executive order sits oddly with the various coordinating efforts the US has engaged in regarding the ICC’s functions. Much of that rarely appears on the Bolton-Trump political radar, but a degree of constructive understanding has been shown at points, including logistical efforts to secure the recent surrender of Ali Kushayb, leader of the Janjaweed government-backed militia in Darfur.

This executive order is more an act of strident protest and petulance rather than anything effectual. ICC officials are concerned but undeterred. Magnitsky remains the spectre at the feast; but he would surely find this latest chapter both comical and slightly absurd. “Asset freezes and travel bans are for human rights violators, not those seeking to bring human violators to justice,” insisted an alarmed Richard Dicker, international justice director at Human Rights Watch. The human rights defenders have become the sanctioned ones.

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13 comments

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  1. Jack Cade

    Trump has actually been good for the rest of the world. His blundering narcissism has laid naked the way the more cunning US regimes did their business, and his lifting the bandaid off the festering boil will hopefully force future US governments to realise that they can’t do without the rest of the world but the rest of the world can do without Uncle Sam if it needs to. Bolton’s revelations this week should guarantee that Trump goes to gaol when he is defeated. However, his hard core support is about one-third of the USA, and that one-third is almost certainly the most heavily-armed of the populace. Vox pops in his strongest states are worrying because they are convinced, by him, that he is going to have his presidency stolen from him. And given US history, he could well be right. So the November election could be the end of the Trump presidency but the beginning of something truly dreadful.

  2. New England Cocky

    Uhm ….. As I remember this story, the USA (United States of Apartheid) is NOT a signatory to the ICC and has so far escaped escaped or evaded any legal action against any of their military forces or mercenary forces that have committed crimes against humanity. The Wikileaks exposure of drone strikes in Afghanistan is a typical example of the US avoiding accountability.

  3. Michael Taylor

    Everything and anything Trump does defies logic. He is a buffoon.

  4. Matters Not

    Trump’s a buffoon! Are you sure?

    Recall the days of yore when a regular commentator asserted that The Man in question would trumpet in a brave new world. That he had a great, innovative, well thought-through strategy. A Man with a Plan!

    What ever happened to SS by the way? Just askin …

  5. Jack Cade

    New England. Cocky

    Plus Israel gets away with blatant
    apartheid, ethnic cleansing and murder because the US blocks any criticism of it. And the Palestinians are Semites so criticism of
    Israel is not criticism of Jews, despite the media convincing us that only Israelis are Semitic.
    The UN was castrated at birth by the right of veto being granted to a small group of members.

  6. Matters Not

    Guess that Binroy et al will soon be out of a job – what with Arts Degrees soon to be 113% dearer, he will struggle for student numbers. Subjects like History, Anthropology, Sociology, Psychology, Languages, Politics etc will be displaced by those that lead (supposedly) to jobs.

    So why not close Higher Education institutions like Universities (sell the real estate) and send everyone to TAFEs?

  7. Jack Cade

    I’m not a violent man (well, I probably am, really, but I control it.) But I’ve never seen a face I’d like to pulp as much as I’d like to pulp that Mitch McConnell. What a horrible creature he is!

  8. Phil

    So Trump sanctions the International Criminal Court? I don’t think so, one of the Neocon Nutters in his ever diminishing circle of bum kissers, would have come up with that idea, not Trump. They must be planning another war, well not so much planning, as ginning one up. Something has to take the Hoi Polloi’s mind off the fact, that some of them may well be starving to death shortly or, maybe just getting shot or strangled to death by the local plod, in their neighborhood. Or more likely, getting infected with that fake Covid-19 virus, that has dispatched nearly 120.000 souls, or near as. The Trumpster says it’s fading away so Covid-19, is not as bad as they thought. What a nightmare the USA has become, the founding fathers would be turning in their graves.

  9. Phil

    Mitch McConnell. AKA Scooter. On the weekends he takes his teeth out and puts a dead squirrel on his head and rides with the KKK. I love to hear him say Youall and Kentucky Fried Chicken. People actually voted for that Dork. The mind boggles.

  10. Michael Taylor

    Oh gawd, MN. Please don’t remind me of that sad chapter.

  11. Bertie

    Phil, ‘ginning up another war’. I get the distinct impression we are in one now. Anyone feel like you are living under restrictions of martial law (medical albeit) already? No? Yes? James Corbett of ‘The Corbett Report’ has done a good piece on this subject –
    ‘How will WW3 be fought?’ – https://www.youtube.com/watch?v=L8HXgF_b8-A
    Hard to imagine that we are not currently in the midst of a massive psy-op and control grab. Happy to be proved wrong of course.

  12. Michael Taylor

    Jack/Phil, I would go so far as to suggest that McConnell is treasonous. Big call, I know, but his decision to block the bill that would have prevented election interference surely borders on such.

  13. Phil

    ‘ Phil, ‘ginning up another war’. I get the distinct impression we are in one now. ‘

    I believe that as well, a civil war.

    Big day tomorrow, I thought I’d just get in with, watch the fun in Tulsa at the Trump rally. If the demonstrators fall for this blatant attempt to call out the troops to put the plebs down, they’ll deserve it, They should stay home for this one, don’t give that imbecile Trump any oxygen. Trumps becoming desperate now and I still say the US will go up in flames and a war is not far off. imho.

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