Sanctioning is a well-known and banal topic amongst the international legal community. Individualised sanctioning is traditionally utilised by international organisations such as the United Nations to freeze individual assets to prevent organised crime or suspected terrorism. In a recent turn of events, the US has made radical foreign policy decisions to sanction members of the International Criminal Court (ICC) as a means of punishing prosecutors for investigating international atrocities.

Secretary of State Mike Pompeo stated to the media on September 2, 2020, that the ICC  was “a thoroughly broken and corrupted institution”. The quote demonstrates the Trump administration’s firm opinions on the operation of the ICC and its work.  

THE ICC’S FUNCTION

Ratified in 2002, the Rome Statute established the ICC. It was created to try people accused of genocide, war crimes and crimes against humanity. It was made as a ‘court of last resort’ that only steps in if national authorities do not conduct genuine proceedings. The court is supported by 123 countries and was set up following the genocides in Rwanda and Yugoslavia in the 1990s. The US, Russia, Israel, Iran and China all voted against the creation of the court, and as a result, it has no jurisdiction over them.

TRUMP AND THE ICC

President Trump has a long-held grievance with the ICC. In November 2017, ICC Chief Prosecutor Fatou Bensouda sought to open an investigation into war crimes committed in Afghanistan. In April 2019, US Authorities revoked ICC Chief Prosecutor Fatou Bensouda’s entry visa to the US, citing that the US was protecting its sovereignty and its people from an ‘unjust investigation’, even though at the time no such investigation had been approved. The court rejected the investigation citing a lack of co-operation from the US and Afghanistan but this decision was reversed on appeal.

In June 2020, President Donald Trump issued an executive order which imposed sanctions on the ICC after the court decided to open an inquiry into war crimes committed during the conflict in Afghanistan. The war crimes inquiry does not just target Americans. It is considering actions by US, Afghan and Taliban troops, with many wondering whether it could inadvertently uncover allegations relating to UK troops during the conflict. The June sanctions authorised visa restrictions against International Criminal Court officials and any other individual who has attempted to investigate, arrest, detain or prosecute any member of US personnel or a US ally without their consent. 

INDIVIDUALISED SANCTIONING AND INTERNATIONAL HUMAN RIGHTS LAW

Individualised sanctioning is a well-known tool for dealing with threats to international peace and security. The UN has favoured economic sanctions, mainly because they are less costly and more convenient than military action and often very effective. However, individualised sanctioning has a shaky human rights record at best. Assert freezes, travel bans and visa revocation all interfere with an individual’s autonomy, right to a private and family life, not to mention their right to a fair trial, judicial review and a right to respect for property.

The legality of individualised sanctioning practices has been discussed by the judiciary and scholars alike. The crux of the issue: individual sanctions are imposed unilaterally. There is generally no warning for the individual who is to be the subject of sanctioning, no opportunity to defend their interests and generally no mechanism by which they can appeal the sanctions. 

INTERNATIONAL RESPONSE 

US sanctions against Prosecutor Fatou Bensouda have been widely criticised by the European Union, specifically, France and Germany, who have referred to them as both ‘unacceptable’ and ‘a serious mistake’.

The court itself responded to the sanctions stating that this was “another attempted to interfere with the Court’s judicial and prosecutorial independence and crucial work to address grave crimes of concern to the international community”.

Other organisations, including Amnesty International, referred to the sanctions as “a punitive campaign of intimidation” and said the White House’s actions might “dissuade survivors of human rights abuses from demanding justice”. The UN sees the sanctions as an attack on judicial independence, and have encouraged the court to drop its investigation on Afghanistan.

WHAT COULD THE US HAVE DONE INSTEAD?

Sanctioning is a punitive measure that has far-reaching consequences for the individuals subjected to them. The ICC only investigates in circumstances where national governments have failed to hold investigations themselves. If Trump wanted to put an end to an investigation, it has been suggested it would have been more sensible to submit evidence to the ICC inquiry into military activities to bring it to a conclusion. 

Rani holds an LL.B in Law and an LL.M in Public International Law. She was called to the Bar of England and Wales in November 2018. She aspires for a career at the civil Bar.

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