What basis in right or law does the U.S. have for freezing the assets of another country?
By Herbert Rothschild
Last month the U.S. and Iran agreed to a prisoner swap. Five Americans held on espionage charges and five Iranis held on charges of violating U.S. sanctions on Iran were released. In addition, the U.S. agreed to the transfer of $6 billion in Iran’s assets frozen in South Korea to Qatar, where they would still remain out of Iranian control and be paid directly to vendors when Iran wants to make purchases of food, agricultural equipment, medicine and medical devices.
Because every event is now a partisan matter for Republicans, they felt a need to discredit the prisoner swap. Former President Donald Trump, Sens. Ted Cruz and Lindsey Graham and other party leaders claimed that President Joe Biden paid a “ransom” to win the prisoners’ release. The administration easily countered that distortion, pointing out that the $6 billion was not U.S. but Iranian money and that it wasn’t returned to Iran’s control. I won’t waste any more of our time on Republican behavior. As my mother used to say, “What do you expect from a pig but a grunt?”
What I will spend time on is the general silence about our continuing to withhold Iran’s money from its rightful owner. No one in the mainstream media saw fit to ask what to me is an obvious question: How do we justify freezing the assets of a foreign person or country? And since freezing assets is one part of the more general imposition of sanctions, what is the legal basis of our imposing sanctions?
The U.S. likes to assert that it leads a rules-based international order. In practice, the only rule in that order is we do what we want and fault other nations if they do what we don’t want. But there is a real rules-based international order. It was created over time by treaties. Article VI of the U.S. Constitution states that treaties we enter are the law of the land. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”
Regrettably, federal courts have refused to apply that provision of the Constitution when citizens have tried to stop certain actions by the federal government when they violate treaties we’ve entered. Nonetheless, if you and I are serious about justice, it’s worth attending to the actual rules-based international order of which we are supposedly a part.
By far the most important treaty that the U.S., as well as almost every other nation, has entered is the U.N. Charter. That document doesn’t specifically mention sanctions. However, Article 39 gives the U.N. Security Council the authority to determine whether there has been an act of aggression and to decide what measures to take to restore international peace and security. Article 41 says that the Security Council may decide upon measures not involving military force to end the aggression. Among such measures are “complete or partial interruption of economic relations.” U.N. member states would then be obligated to observe those measures.
Immediately after Russia invaded Ukraine in February 2022, there was a motion to declare the invasion an act of aggression. But as one of the five permanent members of the Security Council, Russia’s veto was sufficient to kill the motion. Had it passed, then sanctions would have the backing of international law. The U.S. imposed them anyway.
Indeed, we had maintained significant sanctions on Russia and individual Russians long before 2022. In regard to those as well as the sanctions we’ve imposed on a number of other countries, we’ve never bothered about international law. Nor would international law support our sanctions on nations like Cuba or Venezuela, which haven’t invaded other countries but simply maintain governments and economic policies we don’t like. And that aside, it’s hard to make a case in common law or common fairness that we’ve been injured by such nations and thus are entitled to compensation by imposing sanctions.
So, what basis in right or law does the U.S. have for freezing the assets of another country? Iran has invaded no other country, certainly not South Korea, where money owed for its oil was frozen, or us. True, Iran has meddled militarily in neighboring countries like Iraq and Syria, but hardly to the extent we have. Then there is its nuclear program. A group of countries imposed sanctions on Iran to pressure its government to sign an agreement not to develop nuclear weapons. Iran signed the agreement and the sanctions were lifted. But then the U.S. under Trump repudiated the deal and reimposed sanctions. Biden has maintained them. Can that be right?
The reality we mustn’t lose sight of is how deadly to a country’s people these actions can be. It’s one thing to seize the luxury yacht of a Russian oligarch docked in Portofino. It’s another to freeze the assets or impose sanctions on an entire nation.
The death toll of our sanctions on Iraq in the 1990s exceeded a million, mostly women and children. More recently, we’ve imposed similar suffering by withholding funds belonging to Afghanistan’s central bank — $7.5 billion or $9.5 billion (I’ve seen both figures) — because the Taliban, despite 20 years of U.S. military intervention, regained control of their country. We’ve refused to return the funds even though there is a huge humanitarian crisis in Afghanistan. In August, the U.N. World Food Program said that 15.3 million Afghanis are facing acute food insecurity. The government desperately needs its money to restart its banking system. Afghanistan didn’t attack us. Saudis living in Afghanistan attacked us on 9/11 with no evidence of Afghan complicity. Yet, Biden thinks he’s justified in directing much of the frozen money to the families of those who died on 9/11 and dictating how and when Afghanistan can access the rest.
When you’re as powerful as we are, usually you can do what you want. But please, Secretary of State Antony Blinken, spare me your public displays of self-righteousness.
Herbert Rothschild is an unpaid Ashland.news board member. Opinions expressed in columns represent the author’s views and may or may not reflect those of Ashland.news. Email Rothschild at email@example.com.