Trump’s ICC EO Will Undercut All U.S. Sanctions Programs—Is That Why Treasury Isn’t Conspicuously on Board?

(Editor’s Note: This piece is part of Just Security’s ongoing coverage of Executive Order 13928, “Blocking Property of Certain Persons Associated With the International Criminal Court.” For more on this topic, readers can find the full collection here.)

As others have discussed in depth at Just Security, President Donald Trump’s June 11 executive order on the International Criminal Court (ICC) appears to be more an exercise in scaremongering and political theater than a good-faith response to what Trump has labeled a “national emergency.”

American rejection of an ICC investigation into allegations of possible war crimes related to detainee abuse by U.S. forces in Afghanistan comes as no surprise. That’s consistent with past administrations as well as this one. Yet, characteristically, the Trump administration appears to have eschewed the painstaking diplomacy that could have appropriately protected U.S. service members without further delegitimizing the Court — a body tasked with the important mandate of seeking justice for the victims of war crimes, crimes against humanity, and genocide. Instead, the administration has chosen a belligerent course that ICC experts suggest will do little to achieve the administration’s own stated goals.

As David Scheffer, a former ambassador-at-large for war crimes issues, has noted, several Rome Statute non-State Party governments credibly accused of atrocities, including those that occurred on State Party territory, may benefit from the assertion of sovereign prerogative fundamental to the administration’s approach because of the precedent it sets. This deleterious effect appears to concern U.S. officials little. Indeed, Attorney General Bill Barr’s unsupported claims of corruption and malfeasance within the Court itself, made during the press conference announcing the E.O., appear to emphasize the new authority’s essentially political message.

I will leave additional analysis of the E.O.’s impact regarding the ICC’s operations to others. Instead, I’ll briefly highlight two related points concerning the administration’s decision. These stem from my experience helping lead an NGO that assists a large network of other NGOs in  work to advance targeted human rights and anti-corruption sanctions.

In the balance of this article, I explore two issues:

  1. the ICC E.O. threatens to undercut the legitimacy of other important U.S. targeted sanctions programs; and
  2. the document’s roll-out strongly suggests that it lacks full-throated support from one of the very agencies tasked with its enforcement.

 

A Threat to the Legitimacy of U.S. Sanctions Programs

Sanctions are among the most important, and most coercive, tools in U.S. foreign policy short of war. The dollar’s position as the world’s reserve currency gives our economic sanctions unprecedented power. And in keeping with a foreign policy that prioritizes unilateralism and frequently shuns expertise, the Trump administration has responded to the United States’ unique position by treating sanctions as a tool of first resort.

Yet even given its arguable overreliance on sanctions, the administration’s issuance of the ICC E.O. can rightfully be viewed as an extraordinary escalation. Simply put, personally targeting the staff of an human rights accountability body established by a widely ratified international treaty in the same manner as targeting the leadership of North Korea is the foreign policy equivalent of jumping the shark. Other than the United States and Turkey, the Rome Statute has been ratified by every NATO ally. No matter what one thinks of the legitimacy of the ICC’s investigations, threatening the use of the most severe tool in the U.S. diplomatic arsenal against ICC officials plays to the advantage of every critic of unilateral U.S. action.

The upshot of this ill-advised decision will be a delegitimization of U.S. sanctions programs in general, from those that aim to stop nuclear proliferators to those that protect human rights. Sanctions experts have long cautioned that the tool’s overuse will incentivize the EU, China, and other actors to consider ways to evade U.S. sanctions or promote the use of alternative currencies. While those alternatives are not easily established, the ICC E.O. will likely offer critics of U.S. sanctions a potent new argument for how the United States cannot be trusted to use its unique power judiciously.

Adding insult to injury, as I and others have pointed out elsewhere, the ICC E.O. is written so broadly as to threaten not simply innocent actors but potentially victims of human rights violations, their representatives, and the like. Among other things, its provision allowing the sanctioning of foreign persons who provide material support to ICC investigations suggests that the U.S. government can now hold at risk of sanctions entities like non-U.S. media organizations, law firms, and human rights groups, or their non-U.S. employees, if those individuals have conducted research on alleged war crimes by U.S. or allied forces so long as their information is used to “assist” an ICC investigation.

It’s worth highlighting here an important caveat noted by my former NSC colleague and sanctions expert Adam Smith in his extensive analysis of the E.O. Quoting Adam:

In practice such “material support” prongs have, at least in the past, been used solely as a basis for derivative designations of specific persons. That is, until a person is officially listed under the E.O., there is no basis for another person to be designated for providing material support to them. To be sure, it is possible that this provision could be interpreted more broadly in an unprecedented fashion – for example, to include the provision of support for specified activities prior to any designation of individuals.

It may serve as limited comfort to human rights advocates that they are likely only at risk of being sanctioned for “assisting” an ICC investigation prospectively, following designation of an ICC officer, rather than on the basis of past actions. More broadly, would the Trump administration ever use its sanctions authority to target foreign journalists or human rights NGOs, either retrospectively or prospectively? It’s hard to say, but certainly not inconceivable.

In my current work, I’m frequently asked whether human rights and anti-corruption sanctions issued by the Trump administration can be viewed as legitimate. For a variety of reasons, I have until now been able to say they are. Were actual sanctions designations made under the ICC E.O., however, it would be difficult if not impossible to maintain such a position. If the same administration that publicly defends Jamal Khashoggi’s murderer decides to sanction those international civil servants who prosecute war crimes, we will have entered wholly uncharted territory.

Does Treasury Recognize the E.O. Is Suspect?

Turf wars between State and Treasury over which department leads targeted sanctions decision-making can sometimes get heated. Treasury seems to be winning the argument, with the Secretary of the Treasury frequently designated by the President to make sanctions determinations “in consultation with” the Secretary of State and Attorney General, despite the State Department’s mandate to lead U.S. foreign policy.

Whatever one thinks of this approach (disclosure: I’m not a big fan), the ICC E.O. is noteworthy in that it inverts the more typical order, directing the Secretary of State to lead on determinations “in consultation with the Secretary of the Treasury and the Attorney General.” While State taking the lead on a sanctions E.O. isn’t unique, it is telling. And Treasury Secretary Steven Mnuchin’s conspicuous absence from the EO’s otherwise high-powered roll-out press briefing seemingly underscored the inversion of roles. While one can legitimately argue that Mnuchin has larger fish to fry at the moment, Treasury has uncharacteristically refrained from issuing a press release on the ICC E.O. or otherwise highlighting the announcement. In sum, a decent amount of circumstantial evidence suggests that Mnuchin is not an enthusiastic supporter and may be trying to distance himself from the E.O., even while Pompeo has sought to emphasize that action against the ICC is coming from “all across the United States government.”

Adding support to this theory is the fact that in debuting the E.O., Treasury announced no actual economic sanctions designations (in sanctions jargon, the E.O. remains “naked”). While conceivably a deliberate choice to incrementally increase pressure on potential sanctions targets, it’s equally plausible that Mnuchin lacks Secretary of State Mike Pompeo’s drive to penalize individual ICC staff.  Similarly, Mnuchin’s reticence may suggest that he is more clear-eyed about how the administration’s approach jeopardizes the kind of international cooperation the United States relies upon to amplify the effect of our sanctions. In any event, what we may have witnessed was something of a bureaucratic compromise in which Mnuchin capitulated to Pompeo’s political messaging, while holding a firm line in terms of concrete sanctions actions.

Nothing good will come of the ICC E.O. Law-abiding U.S. service members won’t be any better off. U.S. sovereignty, which the E.O. ostensibly seeks to defend, will not be better protected. The international effort to stigmatize and ultimately eradicate the worst atrocity crimes won’t be better off. And the ICC certainly won’t be any better off — which is, of course, the point. As with so many Trump administration decisions, America’s reputation will needlessly suffer, and with it, an important foreign policy tool will grow less effective.

Image: US Secretary of State Mike Pompeo (R) holds a joint news conference on the International Criminal Court with US Attorney General William Barr, at the State Department in Washington, DC, on June 11, 2020. (Photo by YURI GRIPAS/POOL/AFP via Getty Images)

 

About the Author(s)

Rob Berschinski

Senior Vice President for Policy at Human Rights First, Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor Follow him on Twitter (@RobBerschinski).