On June 11th the US President exercised his powers under International Emergency Economic Powers Act (IEEPA) to sanction the work of the International Criminal Court (ICC). This Executive Order has been widely seen as damaging to America’s international reputation.
One reason for this perception is that work of the ICC is largely in countries Donald Trump described as “shit hole countries”, and that any damage to the work of the ICC is damage to the upholding of human rights for people in these countries.
The justification for the sanctions was ostensibly because the US objects to the ICC investigating (or “harassing “– as the EO puts it) US military actions in Afghanistan. To the US such investigations are an infringement upon the sovereignty of the United States. This is especially true as the US never ratified the Rome Statute, and never accepted ICC jurisdiction over its nationals.
The US accuses the ICC of having “over-broad, non-consensual assertions of jurisdiction”. To right these wrongs the US has ordered sanctions against persons directly engaged in the investigation, arrest, detention or prosecution of US “personnel”.
“Personnel” includes nationals of countries the US considers allies (ie. NATO countries and non-NATO countries as defined by the American Service Members Protection Act). Within the list of US allies is Israel which is also subject to an ICC preliminary examination for its treatment of Palestinians. Also allied to the US is the UK, which as well as having signed the Rome Statute is also under preliminary examination for its activities in Iraq.
The EO treats “US personnel” as anybody working previously or now for the US government, whether in uniform or not, and whether US citizens or not. Family members come within that understanding too.
These definitions create quite a tangle for the international community. Just as with the UK, there are the countries who have ratified the Rome Statute and who are also US allies.
Then there are ICC ratifying countries where the US military operates, has bases or who receive US military aid. Firstly, are these countries going to provide a safe haven for the ICC, or will they have their arms twisted by the US ? And secondly, what of the UK and Israel ?
Although Israel’s has all along disputed that Palestine is a country, hence within the jurisdiction of the ICC, Dominic Rabb has come out on behalf of the UK in support of the ICC. It will be interesting to see what actions follow words if the ICC eventually rules it does have jurisdiction over Palestine, and if the UK institutions are pressured by the US to obey the sanctions. Remember, Britain wants a post-Brexit trade deal with the US. But if the diplomats are going to have a hard time with this EO, pity the poor compliance officers.
Global organisations are already up to their eyeballs in conflicting national interests, making it either legally impossible for them to act without breaching some law somewhere, or impossible to act without offending some party somewhere. Consider the recent decoupling of the US from the JCPA, and Mike Pompeo’s reaction to HSBC‘s acceptance of the National Security Law in Hong Kong. The sanctions against the ICC will only add to the invidious dilemmas businesses face.
The reaction of many Financial Institutions to such dilemmas has been to de-risk, meaning move away from as many areas of contention as possible. De-risking has had a complex though not altogether understood impact on the financial system.
Given how many de-risking projects in the past defaulted to an overly simplistic view of the world, it can only be hoped that the financial system does not make a pariah of the ICC.
Of course, there are going to be plenty of trip-wires for all concerned. The EO’s stipulation that former military personnel be protected could mean mercenaries and the like (if they are made-up of ex-US or allied forces) are covered. Africa continues to be a good place to be a mercenary, but it is also the continent playing host to the greatest number of ICC investigations.
To be fair, the US is in a unique position not faced by any other country. No other country gives as much military aid around the globe, has as many bases, or has troops stationed in as many countries. All part of a fraying Pax Americana, over which the ICC could have a disproportionate impact…. were it more effective than it has been thus far.
Whilst seen from the US’ perspective the ICC decision may make sense, for the rest of the world the EO is fraught with problems.
ICC sanctions are likely to worsen international co-operation, not to improve it – particularly in legal matters. This is not going to smooth the path towards FATF’s vision of widespread cross border co-operation, and is not going to make investigations into human rights abuses, terrorism or financial crimes any easier.
Then there is the question of moral authority. A study “Why People Obey the Law” by Tom R. Tyler came to the conclusion that adherence to rules and laws was higher when people believed in the moral legitimacy of the rule, or law.
This is a problem sanctions have had all along. They are perceived as politically mandated not ethically mandated. As a result the only way to get effective compliance has been through deterrence, hence swinging fines by the DOJ and other US authorities, and increasing use of deterrence elsewhere (including in the EU, UK and Singapore).
Perceptions count too. The Philippines, once a signatory to the Rome Statute, stung by the ICC’s investigations into extrajudicial killings during its on-going “war on drugs”, recently quit the ICC. In doing so it made itself look bad. Avoiding scrutiny is never a good test of innocence.
The US risks going further in its damaging example to the world. The EO indirectly undermines the very rules of law that the US wishes for its military personnel. But it is one thing to sit on the side lines and not participate, but another altogether to ‘stick the boot in’, as the EO does. That spells bad intent.
This is particularly relevant in today’s febrile climate. The black lives matter (BLM) movement in the US and UK is largely about systemic racism and bringing accountability to the police.
The ICC is also about accountability. In its own words it is “participating in the global fight to end impunity”. However, if you look at where the accountability is being activated, it is clear the ICC is overwhelmingly helpful to countries where the populations are not white. It has around twenty-one on-going “situations” and “preliminary examinations”. Twelve of those twenty-one cases are in Africa, five in Asia, two in South America, and only two in Europe.
Whilst it is understandable that America wants to protect its personnel (who are, it must be said, risking their lives for their country), at the same time it needs to recognise they are largely unaccountable to the people they most affect. Even without the implied (though probably unintended) racial dimension to the attack on the EO, the military should in any case be more accountable not less.
So what should organisations be doing in the wake of the ICC EO ?
Ostracising the ICC to fulfil a legal duty may be a bad choice, particularly if the organisation has publicly “taken the knee”.
So, compliance and ethics officers would do well to get on the front foot by engaging business managers as early as possible. The only way to avoid being crushed between the US regulatory Charybdis, enforcing the EO, and the media Sylla, defending the ICC, is to have a plan. Thinking now may save regrets later.
The author leads TSG’s Advisory Services. He has spent many years in law enforcement and banking specialising in financial crime risk and compliance. TSG is a Research (including due diligence) specialist, also offering Ethics Compliance and Advisory services to its clients. TSG offers expertise in Eastern Europe, as well as East Asia.