OpsLens

Why John Bolton is Right About the International Criminal Court

On 10 September, National Security Adviser John Bolton delivered a speech at Washington D.C.’s Mayflower Hotel on United States foreign policy. The audience was the conservative Federalist Society, which were the perfect recipients of Bolton’s strong message that day.

The address consisted of a long attack on the International Criminal Court (ICC) of The Hague, explaining why the court had lost all legitimacy to America, as well as issuing threats to the Court’s personnel. “For all intents and purposes, the ICC is already dead to us,” Bolton told his listeners. “If the court comes after us, Israel or other US allies, we will not sit quietly,” he warned.

Bolton went into detail stating what retaliatory steps would be taken in the event the ICC prosecuted U.S. or allied citizens: “We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system,” Bolton said.

The rather blunt and forceful attack on The Hague did not come out of the blue. Back in November 2017, an ICC prosecutor requested to open an investigation into alleged war crimes committed by the U.S. military in Afghanistan. One of the highlights of this proposed investigation were concerns over alleged abuse of Afghan detainees. Reportedly, there have been several instances in which interrogators have been suspected of torturing detainees within Afghanistan as well as at black sites in Poland, Romania, and Lithuania.

Bolton actually related to this during his 10 September address, stating that neither Afghanistan nor any other government party to the ICC had even requested an investigation. But that will not prevent Hague judges from going forward with proceedings against the U.S., claiming that a case could be formally opened against the United States “any day now.” To be fair, the pending ICC investigation is not meant to target Americans only. In fact, the decision is expected to authorize an investigation into alleged atrocities by both Taliban and Afghan government forces.

However, it is almost certain that such a case would also cover allegations aimed at U.S. personnel. And on this point, Bolton made the U.S. position very clear. The national security adviser said Trump’s administration “will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

The United States has had an uncomfortable relationship with the The Hague over the past two decades. The strife between the U.S. and the ICC goes back to the court’s founding over twenty years ago when the court received its mandate. The source of the ICC’s authority to try criminal cases stems from the international accord known as the Rome Statute of 1998. The Statute established four broad categories of international crimes including genocide, crimes against humanity, war crimes, and the “crime of aggression.” At first the ethos of the Statute was appealing to the United States. Who wouldn’t support an international court of justice that would rid the world of the impunity enjoyed by the worst war criminals and human rights violators?

Bill Clinton signed the United States on to the Statute in December 2000. Shortly afterward, however, policymakers took an about-face. The implications of the Rome Statute were alarming. The idea that American military officers would be able to be tried and punished by a legal body outside of the United States was too much for many of the most globalist members of Congress. In August 2002, just a few months following the government’s formal notice that it would not ratify the Statute, Congress passed the American Service-Members’ Protection Act (ASPA), which contained a number of provisions, including authorization of the President to “use all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained by, on behalf of, or at the request of the International Criminal Court.” That is toned-down legal language for: If anyone tries to detain American or allied soldiers for trial in the ICC we will consider it an attack against us and we will fight back.

America’s complicated relationship with the ICC has come up at various times over the past decade and a half, most recently in the Fall of last year. The issue that triggered the flare-up was not an affront to the United States itself but to one of its allies. In September 2017, several Palestinian advocacy groups submitted a 700-page body of evidence to the International Criminal Court (ICC) in The Hague, detailing alleged war crimes committed by Israeli officials, either by compliance or direct involvement. The four participating groups, which included the Palestinian Center for Human Rights, urged the ICC prosecutor Fatou Bensouda in a letter to “urgently open a full investigation into the situation in the occupied Palestinian territory.” By supporting this process, however, the Palestinian leadership ran afoul of U.S. federal regulations. According to the 2016 Consolidated Appropriations Act, if the Palestinians initiate any judicial proceedings against Israel or its citizens, their permission to operate in the United States will be revoked—along with their economic aid. In response, the State Department threatened the closure of the Palestinian Authority office in Washington D.C.

The incident highlighted just how distrustful the U.S. government is concerning The Hague. Not only is the United States willing to retaliate over America’s own servicemen being subjected to the ICC, but over allied personnel being prosecuted by the court as well.

The views voiced by Bolton last week are part of an important trend within the administration. This pattern has been discernible since Trump entered the White House but has been even more substantial over the past several months. The diplomats that run current U.S. foreign policy don’t like things that smack of a globalist agenda. To avoid any ambiguity surrounding that term, let’s give it a clear definition. In this context, “globalist” means outsourcing policy or legal decisions that will affect national issues to international bodies. Of course any international diplomacy means gearing a country’s own behavior to accommodate the interest of other nations. But there is a fundamental difference between compromise in the context of a treaty or some international cooperation on the one hand, and the handing over of sovereign rights to a third party on the other. The “anti-globalist” argument goes something like this: Governments have the power to judge and apply the rule of law in their own countries and in relation to their own citizens. An outside entity applying its laws on a sovereign country, whether it be within that country’s territory or on that country’s citizens, is illegitimate.

One might counter this argument by pointing to the need to reach an international consensus when it comes to war crimes.

It is true the global community must rally together to ensure war criminals are brought to justice. But this need must be weighed against another very important consideration, namely to not usurp the sovereign rights of the very members of that community. For this reason, both logically and ethically, international entities can only step in for extreme cases. Perusing through the ICC’s own current case activity, a very telling pattern emerges that sheds light on what these extreme case looks like. The types of bad guys international courts are meant to go after are those that (A) have committed crimes international in nature, (B) the host countries are incapable of prosecuting (due to the power of the criminal, or the weakness of the nation’s own government infrastructure), (C) the host country is not interested in prosecuting them because the government was backing them. People like Saif al-Islam Gaddafi, son of the deposed Libyan leader, and child soldier commander Joseph Kony, both currently being prosecuted by the ICC, are good examples of cases that fit this bill. The military tribunals at Nuremberg against Nazi war criminals is also a good illustration to keep in mind.

Obviously, none of these remotely apply to the United States.

War crimes and crimes against humanity are prosecuted in U.S. courts under the War Crimes Act of 1996. The American justice system has shown itself able and willing to try its own personnel for war crimes. Specifically during the war in Afghanistan, numerous personnel have been convicted and sentenced, often for very serious charges. The infamous episode of the Maywand District killings of 2010, and the subsequent charges against the perpetrators, stand out as  examples.

This pattern of resisting international bodies and protesting against their conduct vis-à-vis the United States will likey continue. This isn’t the first time the administration has lashed out against these type of organizations. It is only the most recent. Back in June the U.S. pulled out of the UN’s Human Rights Council after accusing it (correctly) of corruption and dishonesty. The administration has sent clear signals on several fronts. It will not be surprising to see similar policy moves of this type emerging.