National security adviser John Bolton delivered a ferocious speech Monday about the International Criminal Court titled “Protecting American Constitutionalism and Sovereignty from International Threats.”
The speech comes on the heels of the ICC’s letting the United States know that it plans to investigate possible war crimes and crimes against humanity in Afghanistan. The Taliban and Afghan warlords are likely the main targets of the probe. But there is the possibility U.S. troops might be prosecuted and so might personnel who operated CIA black sites in Poland, Romania, and Lithuania.
In response, Bolton said the U.S. will bar the ICC’s “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. We will do the same for any company or state that assists an ICC investigation of Americans.” This is vintage Bolton, who has been fiercely opposed to the ICC since the Treaty of Rome established it in 1998.
Human rights workers lamented Tuesday that these latest remarks will reinforce a sense of “impunity in Afghanistan, prolong the war and embolden those carrying out acts of violence,” according to Kathy Gannon of the Associated Press.
Bolton declared:
In theory, the ICC holds perpetrators of the most egregious atrocities accountable for their crimes, provides justice to the victims, and deters future abuses. In practice, however, the court has been ineffective, unaccountable, and indeed, outright dangerous. Moreover, the largely unspoken, but always central, aim of its most vigorous supporters was to constrain the United States. The objective was not limited to targeting individual US service members, but rather America's senior political leadership, and its relentless determination to keep our country secure.
The U.S. was one of seven nations voting against the Rome Treaty. But President Bill Clinton signed it in 2000 without sending it to the Senate for ratification, pending a review of how it turned out to work in practice. In 2002, President George W. Bush unsigned the treaty, which Bolton said at the time was “the happiest moment” of his career. It was, in fact, another round of calling up the myth of American exceptionalism based not on whether U.S. citizens may commit crimes covered by the ICC, but rather on the view that the nation already has all the tools needed to judge whether any American—leader or rank-and-file citizen—has committed war crimes, crimes against humanity, or genocide.
Bolton reiterated this point of view Monday with his declaration that the ICC is "superfluous" given that "domestic judicial systems already hold American citizens to the highest legal and ethical standards."
Which, as readers here no doubt remember, is why U.S. leaders and their legal shills who ordered or okayed extraordinary rendition, detention without trial, and torture after the Sept. 11, 2001, attacks were dealt with judicially and served long prison terms for their part in it.
It’s true that the U.S. military has been more or less willing since the 1950s to prosecute individual military personnel for war crimes, but civilians not so much. And leaders who gave the orders? Puhleeeeez.
David Scheffer, director of the Center for International Human Rights at Northwestern University Pritzker School of Law, was the U.S. Ambassador at Large for War Crimes Issues (1997-2001). He led the U.S. delegation to U.N. talks to establish the International Criminal Court. At Just Security, he notes:
John Bolton’s speech today isolates the United States from international criminal justice and severely undermines our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world. The double standard set forth in his speech will likely play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law. This was a speech soaked in fear and Bolton sounded the message, once again, that the United States is intimidated by international law and multilateral organizations. I saw not strength but weakness conveyed today by the Trump Administration.
Further, the speech may encourage States Parties, including the larger ones, to come to the defense of the International Criminal Court and not only rebut Bolton but respond with their own punitive measures against the United States. I doubt any will take this kind of pontificating abuse lying down. The value of American rhetoric has been cheapened by the Trump Administration.
Milena Sterio is associate professor at Cleveland-Marshall College of Law in Ohio, where she teaches international law, international war crimes, commercial law, and alternative dispute resolution. At the legal blog IntLawGrrls, Sterio writes that as a representative of the Trump regime, Bolton should stick to “accurate (not alternative) facts.” [...] “Any government policy based on inaccurate information and ‘advertised’ through reliance on misleading and inaccurate claims is ‘ineffective, unaccountable … and outright dangerous.’”
She goes on to say:
• The ICC is not all that powerful. Its jurisdiction is limited to genocide, war crimes, and crimes against humanity, as well as aggression in some very limited cases. And the court only steps in for cases where nation-states have not prosecuted the war criminals in question;
• Judges can be removed with a two-thirds vote of signatory states;
• Nothing in the Rome Treaty undermines U.S. sovereignty or the U.S. Constitution;
• Bolton claims the ICC prosecutor’s request to investigate Americans for alleged detainee abuse in Afghanistan is “an utterly unfounded, unjustifiable investigation.” The alleged abuse may not have happened, but that’s what an investigation is meant to determine. So it is ridiculous to claim it is “unjustifiable.”
Concluding, she writes:
Last but not least, most troubling is Bolton’s threat against those who cooperate with the ICC. “We will respond against the ICC and its personnel to the extent permitted by U.S. law. 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. We will do the same for any company or state that assists an ICC investigation of Americans.” It is absolutely within the United States’ sovereignty to refuse to issue visas/entry to ICC officials who may be foreign nationals (although this would be terrible policy). However, it is simply unbelievable to announce that the United States would prosecute ICC officials, and other companies or states who assist the ICC, in the U.S. domestic system. ICC officials are highly respected experts in international criminal law; judges, prosecutors, investigators, and other individuals who have committed their careers to the pursuit of international justice. Those who assist or have assisted the ICC include our colleagues—the most prominent experts in international criminal law, who have provided advice and expertise to the Court. What crimes have such individuals committed under United States law? And, how would such prosecutions (even if grounded in U.S. law) affect the United States’ role in international relations and in the world community? John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-a-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.
Indeed. But then Trump’s team has assembled a 19-month record of remarks and actions that are “detrimental to our own interests and our position in the global community.” It figures that Bolton, who has made a career of such behavior, has added to this detriment. It’s only surprising that it took him five months in office to do it.