The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
John Bolton, US National Security Advisor
John Bolton’s “happiest moment” as the US Ambassador to the United Nations (UN), so he claims, was when he “personally ‘unsign[ed]’ the Rome Statute” that established the International Criminal Court (ICC).1 John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15. This is the same John Bolton who once said that if the UN Secretariat building in New York “lost ten stories, it wouldn’t make a bit of difference.” And believe it or not, this statement would later bring hope to some of the accused (and some of their lawyers) at the International Criminal Tribunal for the former Yugoslavia (ICTY) when Bolton became US Ambassador to the UN; they naively thought that Bolton would lead the charge to dismantle the ICTY. I was flabbergasted hearing these ludicrous expectations, yet Bolton’s remarks had captured their imagination.
Bolton’s new remarks may have now captured the imagination of some non-States Parties to the Rome Statute (their administration, political elite, and military personnel), equally deluding them into thinking that should the ICC find that it has jurisdiction over its citizens for mass atrocity crimes committed on the territory of States Parties, and should the ICC attempt to investigate, charge, arrest, or prosecute any of them, the US cavalry would come to their rescue.
Does “any means necessary” mean any lawful means – in which case the US may be hard pressed to justify some of the means Bolton/US President Trump have in mind? Or does it also include unlawful means, such as the use of military force? Can you just picture US special forces doing a commando raid on the UN Detention Unit in The Hague, where ICC accused are detained? I seriously doubt that Bolton had this in mind, yet, it would appear, this is precisely the image he wished to convey.
No fan of the ICC, Bolton has not been shy in expressing his opinions. Even before he became the US Ambassador to the UN, Bolton was railing against the ICC, arguing that membership was effectively a usurpation of US sovereignty to an unaccountable, flawed, and illegitimate institution. Pragmatism trumping ideology, President George W. Bush, though sharing much of Bolton’s sentiments, engaged with the ICC through the UN Security Council (UNSC) in referring the Darfur situation to the ICC – ironically, while Bolton was Ambassador to the UN. President Barack Obama also lent assistance and cooperation to the ICC. So, for all Bolton’s huffing and puffing, there is precedent of the US (and other permanent members of the UNSC, namely, Russia and China, who are non-States Parties to the Rome Statute) recognizing the ICC as a legitimate judicial institution – even if under all circumstances they oppose its jurisdiction over any of their citizens (and presumably the citizens of their non-States Parties’ allies).
Bolton’s claim of a supposed major US policy (shift) towards the ICC is nothing new; nothing he has not espoused before, most recently in his November 2017 op-ed piece in The Wall Street Journal.
For all intents and purposes, the US’s policy towards the ICC – at least insofar as US citizens are concerned, is expressed through the American Service-Members’ Protection Act (ASPA), adopted in July 2002 to protect members of the US Armed Forces from any ICC prosecution. Bolton rightly noted that the ASPA enjoyed (and likely enjoys) “broad bipartisan support, authoriz[ing] the President to use all means necessary and appropriate, including force, to shield our service members and the armed forces of our allies from ICC prosecution.” This refrain captures the essence of Title II, Sec. 2008 of the ASPA, dubbed the “The Hague Invasion Clause.” In other words, Bolton was not making a major policy speech, but merely stating what the ASPA already provides.
So why did Bolton feel compelled to make this speech? Why the thunder and fury? Why the posturing and threatening?
Maybe he was motivated by his belief in or interpretation of what is claimed as “America’s exceptionalism” (a euphemism of sorts to express why the US can and should do as it pleases, the rest of the world be damned) that gets him all worked-up about the ICC – or international law in general. Other so-called empires in recent history (perhaps rightly considered such because of their ability and willingness to subjugate and pilfer from other states deemed inferior and in need of guiding enlightenment) were breeding politicians and diplomats and narcissistic jingoists who espoused a similar version of their state’s imperial exceptionalism – we can do as we please because might is right, and if not so, tough luck.
But we no longer live in that world order when impunity reigned with wanton abandon. Even the mighty US cannot go it alone or do as it pleases, at least not much of the time and not against everyone. Bitter as this reality may be, it has yet to sink in to the likes of Bolton, who was not just speaking his mind but echoing President Trump’s perverse, absurd, and in no small measure, juvenile understating of world affairs (and domestic politics).
Gone are the days of gunboat diplomacy. Gone (forever) are the days when the US was (or at least was perceived to be) the ultra-power. And gone are the days when the creation of a permanent international criminal court was a seemingly elusive aspiration; the ICC, despite its imperfections, missteps, and failures (doubtful it will ever reach its desired potential), is a reality – even if the US/Trump administration – as expressed through Bolton – wishes otherwise.
What are we to make of Bolton’s remarks on the eve of 9/11 before the solidly conservative Federalist Society? In sharp, poetic, indeed “Churchillian” fashion (though the US is by no means under attack by the ICC), he decried:
We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
Marvelous, or as the British would say, brilliant. After all, throwing a bit of red meat to the converted and like-minded at such gatherings is as expected as a robust reaffirmation of the US’s preeminence and its enduring pursuit of its deserved manifest destiny.
Is Bolton serious when he claims that the US will ban ICC prosecutors and judges from entering the US? Will the US “sanction their funds in the U.S. financial system”? Will, or better yet, can the US “prosecute them in the U.S. criminal system”? And will it “do the same for any company or state that assists in an I.C.C. investigation of Americans?” How legally permissible or appropriate is any of this? For an answer to some of this I defer to Dapo Akande’s detailed analysis of the US’s international obligations and the legality of banning ICC judges and prosecutors from entering the US (The Bolton Speech: The Legality of US Retaliatory Action Against Judges and Officials of the International Criminal Court?).
Of all of Bolton’s threats, the one that is most improbable, indeed repugnant, is his threat to prosecute ICC prosecutors and judges (and presumably anyone else) involved in the ongoing investigation of US servicemen for alleged crimes committed in Afghanistan (for more, see here, here, here, and my post here), and for good measure, against any of US’s friends and allies depending on President Trump’s predilections and preferences.
Since when has the US or any other state for that matter criminalized the performance of legitimate and statutorily prescribed prosecutorial or judicial functions of international prosecutors and international judges of an international court, and especially the ICC, which, as Bolton knows, the UNSC refers situations for investigation acting under Chapter VII of the UN Charter (see Article 13(b) of the Rome Statute) and has the authority to seek a deferral of investigation or prosecution for a period of 12 months and more (see Article 16)? Where is the crime? What are its elements? More importantly, where is it located in the Title 18 of the US Code, the main federal criminal code of the US?
Perhaps Bolton was suggesting (as some seem to speculate) that the Trump administration will pass legislation to criminalize investigating, charging, prosecuting, and judging cases brought against US citizens alleged to have committed Article 5 crimes (genocide, crimes against humanity, war crimes, and arguably, the crime of aggression), which, for whatever reason, the US declines to legitimately (according to the ICC) pursue in the US courts? I don’t think so. And even if such legislation would come to pass, would US judges seriously set aside the immunity2 Although the US did not sign and ratify the Agreement on the Privileges and Immunities of the International Criminal Court of 9 September 2002, the ICC personnel are entitled to privileges and immunities accorded to them under the 1947 Headquarters Agreement between the UN and the United States. For instance, Section 11 of the Agreement provides for free access to the UN Headquarters. afforded to these international prosecutors and judges? Bolton knows better. But, being the bully that he is and being one of the bully-in-chief’s Trumpenablers,3 Many of high-ranking officials in the Trump administration as recently revealed by Anonymous in his or her New York Times op-ed piece find President “amoral” and unfit to be President, yet they are perfectly willing to serve in his administration, lend legitimacy to it, and pursue many of his absurd international and domestic policies because it also suits their narrow interest – even if doing so further erodes the integrity of the US and the principles upon which it was founded. For an excellent read on this, see Thomas Friedman’s ‘Anonymous’ Is Hiding in Plain Sight, published in The New York Times, September 11, 2018; see also Michell Goldberg’s The Handmaid’s Court published in The New York Times, September 11, 2018. Bolton can’t help himself.
The US may and probably does harbor genuine reasons for not trusting the ICC. It is not the first state to consider the ICC as overly political, agenda-driven, and bias-oriented. It purposely declined to join Club ICC – and, arguably, prudently so. Some of Bolton’s criticisms of the ICC are not without foundation. Let’s face it, the ICC has an unimpressive track record during its 20- year existence (three cases where charges were withdrawn or proceedings terminated, four cases where charges were not confirmed, eight convictions, and a change of plea in Al-Mahdi case). There has been a fair amount of prosecutorial overreach, ineffectiveness, and in the case of the ICC’s first Prosecutor Luis Moreno Ocampo, not just incompetence but also unethical dealings with Libyan oil billionaire Hassan Tatanaki (see my posts on “Ocampogate” here, here, here, and here). There are legitimate reasons to be concerned over the subjective nature and malleable application of the complementarity principle – who decides and based on what criteria can it be said that a state did not properly investigate, failed to charge or prosecute cases before its national courts? Not to mention the obvious double standard – Article 5 crimes committed in or by the permanent members of the UNSC are unlikely to be tried at the ICC.
To what extent, if any, the US and other non-States Parties must cooperate with the ICC absent an explicit command (resolution) by the UNSC (and even then it remains suspect unless the UNSC is prepared to robustly enforce and/or punish non-compliance) is an open question. But that is beside the point. There is a vast difference between stating that the US does not intend to cooperate or assist the ICC in matters related to US citizens who the ICC is investigating and potentially charging (a prerogative that in both theory and practice exclusively belongs to the US), and threatening to charge and prosecute ICC prosecutors and judges who are doing nothing more than carrying out their duties in accordance with their oaths.
Questioning the nature, quality, and even the integrity of prosecutorial functions and judicial proceedings at the ICC, when warranted, constructive, and measured, should not be viewed as inappropriate or detrimental to the ICC as a judicial institution, or its raison d’être. There is merit in doing so. Indeed, refraining from doing so (as the international(ized) criminal tribunals and courts would prefer) is a disservice to international criminal justice. Remaining silent, minimizing, justifying, or worse yet as is often the case, extolling the virtues of these judicial institutions even in the face of blatant shortcomings, is to blissfully indulge in purposeful denial while discouraging meaningful reflection and correction to flawed and unsound practices and procedures.
Bolton’s concerns are, as I noted, not without foundations, but much of his message – if it was a major (new) foreign policy as claimed (perhaps one of the many Trump doctrines we are likely to hear about) – was lost in his over-the-top characterizations and claims, which, as any careful observer would note, were misleading, if not outright fictional – or, in the words of President Trump, truthful hyperboles. Here are but a few of Bolton’s remarks (met with gratifying “America First” applause) that detract and distort, or in Bolton’s view, achieve the desired result of causing a global stir: The ICC (and its Prosecutor) are “illegitimate,” “unchecked,” “supranational,” a conspiracy of “global governance advocates” “antithetical” to the US’s ideals, amounting to “the [US] Founders’ worst nightmare come to life,” “outright dangerous,” with “potentially enormous, essentially unaccountable powers,” with an “unspoken but powerful agenda” to “intimidate U.S. decision-makers, and others in democratic societies,” and thereby to “constrain” them.
Bolton may not be entirely wrong (I will soon post on the ICC’s 20-year accomplishments), but, in my view, attacking the independence of these prosecutors and judges by threatening to arrest and prosecute them (even if these are hollow threats) is a naked attack on and an affront to the rule of law. If Bolton thinks that the ICC is overreaching, that it is wrongly claiming that the US has not properly investigated the crimes alleged to have been committed by US military personnel (or private contractors working for or with or in support of the US military), then this is a debate worth having in an appropriate forum, sans bellicose threats and menacing power-plays.
I do not fault Bolton for advising the US administration, as he did in his op-ed piece, not to engage with the ICC so as not to get dragged into the quicksand. As a strategy, this is sound: how do you claim the ICC is illegitimate and has no jurisdiction if you agree to challenge its jurisdiction, and in so doing, you tacitly agree to its legitimacy? As a short-term (myopic) tactic it may seem prudent, but it is not a long-term consistent and clear-eyed strategy – at least not to this criminal defense lawyer. So no, Bolton is not out of order in advocating a non-cooperation policy with the ICC when US citizens are concerned. The US, incidentally, has been cooperating, something that started under President Obama, though as I understand this matter, the rub is one of complementarity. An issue of significance and concern, as rightly raised by Bolton.
Whatever legitimate gripes the US may have with the ICC, Bolton’s speech was as ill-conceived as it was ill-received. Aside from the appalling threats against the ICC prosecutors and judges, Bolton’s full-throttle attack on the ICC as an “illegitimate,” “ineffective,” “unchecked,” and “outright dangerous” international judicial institution founded and recognized by 123 states to investigate and prosecute genocide, war crimes, and crimes against humanity, gives voice to strongmen, despots, and mass human rights abusers to equally attack the legitimacy of the ICC – even if they are from States Parties and are subject to the ICC’s jurisdiction.
Effectively, through his reckless remarks, Bolton calculatedly put the US’s seal of approval for other states – whether States Parties or not – to denigrate, disregard, and dismiss the efforts of the ICC in fulfilling its (the 123 States Parties’) mandate, and thus delegitimizing ICC investigations, prosecutions, and judgments, which, incidentally, are supported by US allies who genuinely recognize the ICC and are sincerely interested in promoting the (new) international legal order that emerged from the ashes of WWII. As US Federal and former ICTY Judge Patricia M. Wald aptly put it: “This bombastic threat against an institution’s operation, no matter what the circumstances, only serves to cut our ties further with our allies.”4 Quoted by Matt Apuzzo and Marlise Simons in U.S. Attack on I.C.C. Is Seen as Bolstering World’s Despots, The New York Times, September 14, 2018.
In any event, after the most recent Pre-Trial Chamber’s decision in relation to the alleged deportation of the Rohingya people from Myanmar to Bangladesh (see my post here), unless something changes, the ICC is likely to decide that it has jurisdiction over US citizens if found that Article 5 crimes were allegedly committed by them in Afghanistan, a State Party to the Rome Statute. Naturally, there are contrary views on this jurisdictional issue. Some suggest that non-States Parties can effectively commit Article 5 crimes on the territory of the States Parties, and cannot be held to account unless the UNSC (of which they may be permanent members with veto powers) anoints the ICC with jurisdiction over them. For an interesting, creative, and well-presented (albeit in my view less-than-convincing) take on the ICC’s jurisdiction, see Steven Kay’s and Joshua Kern’s post on Opinio Juris, Method to the Madness? John Bolton and US Objections to ICC Jurisdiction.
At the end of the day, maybe we should not get all worked up about Bolton’s speech to the Federalist Society. Perhaps Philip Gourevitch has it right in his piece in The New Yorker where he notes that “it is tempting to think that [Bolton] was deployed to deflect attention from the White House chaos,” having drawn parallels in his Wall Street Journal op-ed piece between the ICC Prosecutor and independent counsel (Robert Mueller), as prosecutors “dangerously free of accountability and effective supervision.” Maybe, just maybe, Bolton was doing President Trump’s bidding in ratcheting up the fear level against the independent counsel whose investigation President Trump fears could potentially bring about his impeachment. It seems a bit of a stretch, but so does threating to arrest and prosecute ICC prosecutors and judges. Then again, maybe Bolton just wanted to appear relevant. How better to do so than by attacking the ICC and giving the impression that it is endangering US’s sovereignty; a clear and present danger that President Trump will not abide – not on Bolton’s watch.
|↑1||John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold 2007, as cited by Brian Urquest, One Angry Man, New York Review of Books, March 6, 2008, pp. 12–15.|
|↑2||Although the US did not sign and ratify the Agreement on the Privileges and Immunities of the International Criminal Court of 9 September 2002, the ICC personnel are entitled to privileges and immunities accorded to them under the 1947 Headquarters Agreement between the UN and the United States. For instance, Section 11 of the Agreement provides for free access to the UN Headquarters.|
|↑3||Many of high-ranking officials in the Trump administration as recently revealed by Anonymous in his or her New York Times op-ed piece find President “amoral” and unfit to be President, yet they are perfectly willing to serve in his administration, lend legitimacy to it, and pursue many of his absurd international and domestic policies because it also suits their narrow interest – even if doing so further erodes the integrity of the US and the principles upon which it was founded. For an excellent read on this, see Thomas Friedman’s ‘Anonymous’ Is Hiding in Plain Sight, published in The New York Times, September 11, 2018; see also Michell Goldberg’s The Handmaid’s Court published in The New York Times, September 11, 2018.|
|↑4||Quoted by Matt Apuzzo and Marlise Simons in U.S. Attack on I.C.C. Is Seen as Bolstering World’s Despots, The New York Times, September 14, 2018.|