The United Sanctions of America vs. the International Criminal Court

A Russian man once told me that whenever the U.S. doesn’t like what someone or some country is doing, it’s a knee-jerk reaction to slap sanctions on the offensive party. He dubbed us, “The United Sanctions of America.” At first I laughed (because it’s kinda clever), but the more I thought about it, the more I realized sanctioning really was the primordial stick the U.S. tries to use to manipulate global politics. If someone were to head over to the U.S Department of the Treasury, they’d find an exhaustive list of countries, entities, and individuals that have incurred the weight of U.S. sanctions, varying in degree and form. Most will wonder: do sanctions actually do anything?

Well, on the surface, they don’t. Sanctions have become such a staple in foreign and economic policy that anyone hit with them will hardly bat an eyelash in response, simply because they rarely achieve any tangible or visible result. They’re like the lingering stench of steaming wet, hot garbage and abundant fish markets in Chinatown here in New York — it’s nauseating at first, but if you get off the subway at Canal Street every day eventually you don’t really notice the smell.

Funny enough, Russia doesn’t even have the most sanctions out of the list of countries the U.S. has issued against. In the Balkans alone, there is 193 sanctions on individuals and entities. Russia has 9. Syria takes the gold for a heavy handed 546 sanctions. Despite these numbers, Bashar al-Assad tightens his grip on rebel groups with the help of his long time friend, Vladimir Putin and a number of other characters. The Balkans have been a powder keg since 1914. There’s little evidence to show it will change, especially with a refugee crisis that has been crippling (already unstable) Balkan and European economies for almost five years. Sanctions, no matter how carefully constructed, somehow always hurt the people of these countries rather than their leaders.

Knowing this, sanctioning can hardly be considered as an effective means to manipulate countries and individuals into ruling within the boundaries of international law. So why is the U.S. National Security Adviser John Bolton threatening the International Criminal Court (of all things?) with sanctions?

Very briefly, the ICC was a court established by the United Nations back in 2002 and currently has 193 signatory nations that have ratified its Rome Statute. It’s whole purpose is to put the people responsible for crimes against humanity, war crimes, and genocide on trial and — with a good prosecution — put them in prison. At its face, the ICC seems like an institution built on good intentions; on the other hand, it raises some concerns that Bolton is hardly alone in voicing.

Sovereignty — the eggshell that every international organization and institution treads lightly on. Why can’t we just bomb Syria and replace Assad? He, as sovereign of his territory and people, cannot be imposed upon by other sovereigns or other nations, and no military force can be exercised. As the United Nations Charter points out, one nation cannot intervene in the domestic jurisdiction of any state or require submission to settlement just because they disagree with how the place is being run. The authors of the UN Charter must be reeling in their graves with this Trump Administration.

In the case of the U.S., the ICC wants to hold some servicemen and CIA officers responsible for alleged actions done in Afghanistan, starting with (but not limited to) sanctioned use of torture, cruel treatment, outrages upon personal dignity and/or rape between the years of 2003–2004. This would mean an external judicial court exercising jurisdiction over American citizens for a crime that neither the U.S. nor Afghanistan wanted to prosecute. Bolton, and many others, see this as a threat to American sovereignty, and to the accused Americans.

Although the United States, Russia, and many other countries aren’t signatories of the ICC and don’t recognize its jurisdiction over citizens of a sovereign nation, saying that the ICC is “dead,” as Bolton eloquently put it, is still dangerous rhetoric. Refusing to acknowledge biases will ultimately result in dangerous people — criminals — getting off with a slap on the wrist. The likelihood of courts in the U.S. charging it’s own citizens for crimes like those prosecuted by the ICC is between slim and none. My guess? It’d be a hush-hush ordeal of a slap on the wrist, and they would keep their pension. Much like how we need to recognize biases within ourselves to better treat people, world leaders need to recognize the biases within their systems to better seek justice.

Another issue brought up by Bolton was that the crimes have ambiguous definitions, and that the U.S. will never recognize anything above the United States Constitution. The crimes tried in the ICC have to be ambiguous, otherwise war lords, dictators, and other malicious groups would find loopholes. For the sake of current events, let’s go with the crimes Americans are being accused of: torture. It falls under the category of crimes against humanity, smacked between deprivation of physical liberty and rape in the Rome Statute. It’s defined as follows:

‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions

The purpose of this ambiguous language is to ensure that it covers a spectrum of torture methods, generalizing them into a ‘physical’ and ‘mental’ kind of pain and suffering. For example, if they explicitly defined torture as ‘ripping off a fingernail,’ then a torturer could hypothetically tear at it till it was hanging on by a thin patch of flesh and still get away with it. Because technically the nail was still on.

See how less specific is better?

The same principle applies to crimes like genocide. If we defined genocide by the death toll, let’s say 100,000 people, a war lord could kill 99,999 people and not be charged with genocide, and let’s be real: that’s unacceptable.

Yes, the International Criminal Court asks a lot of signatory nations: to hand over their citizens when they’ve committed crimes as laid out in the Rome Statute, and to acknowledge the ICC’s jurisdiction as above that of their own court system in such cases. For a national leader to do such a thing would require great reflection on their nation and it’s judicial limitations or biases.

Unfortunately in America, our representatives and current Administration prefer to remain blind in this sense. Bringing these American servicemen to trial gives them the opportunity to prove their innocence, and that they operated within the contexts of international law and with the permission of their government.

However, if the Americans that Bolton is so hell bent on protecting from the ICC are proven guilty of crimes against humanity, what he’d really be doing is protecting American criminals. He’d be saying to the ones who suffered through torture that they don’t matter, because the lives of Americans, even criminals, are more valuable than theirs.

The ICC has responded to Bolton’s rhetoric with finesse, stating that they are, truly, an impartial judicial institution, and “It is only when the states concerned fail to [bring justice to affected communities]at all or genuinely that the ICC will exercise jurisdiction.”

As in most cases with threats of sanctions, the ICC can safely roll it’s metaphorical eyes at America’s exuberant ICC opponent John Bolton. I’m sure the judges and prosecutors wouldn’t mind avoiding the U.S. for a while, and despite the fact that their funds could be targeted, they still remain “undeterred” by the threats of Bolton. As should we all.

Realistically, though, if the American servicemen were found to be guilty in the ICC, there’s little possibility that they’d go to prison with the protection of the U.S. government. While the ICC can hold a trial in absentia, meaning without the party on trial present, they can only exercise that right in extreme cases. And even in cases where the accused was sent to prison, it took the cooperation of many signatory nations to get the criminal to prison.

While the ICC isn’t “dead” as long as it has signatory nations that acknowledge its jurisdiction, it’s painfully limited in how it can actually exercise judgment and action. The United Nations is only as effective and powerful as its Member Nations, and by extension, the International Criminal Court is only as effective and powerful as its signatories. With the way the world is currently governed, I don’t see the ICC being as effective as it could be in holding criminals accountable for crimes that have the power to shock the human conscience. But I really hope it survives to see the day that it can.