The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. <\/em><\/strong><\/p>\n John Bolton, US National Security Advisor<\/span><\/p>\n John Bolton\u2019s \u201chappiest moment\u201d as the US Ambassador to the United Nations (UN), so he claims, was when he \u201cpersonally \u2018unsign[ed]\u2019 the Rome Statute\u201d that established the International Criminal Court (ICC).((\u00a0\u00a0 John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad<\/em>, Threshold 2007, as cited by Brian Urquest, One Angry Man,<\/a> New York Review of Books, March 6, 2008, pp. 12\u201315.)) This is the same John Bolton who once said that if the UN Secretariat building in New York \u201clost ten stories, it woul<\/a>dn\u2019t make a bit of difference.\u201d<\/a> 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 (IC<\/span>TY) 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\u2019s remarks had captured their imagination.<\/span><\/p>\n <\/p>\n Bolton\u2019s 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.<\/span><\/p>\n Does \u201cany means necessary\u201d mean any lawful means \u2013 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.<\/span><\/p>\n No fan of the ICC, Bolton has not been shy in expressing his opinions<\/a>. 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\u2019s sentiments, engaged with the ICC through the UN Security Council (UNSC) in referring the Darfur situation to the ICC<\/a> \u2013 ironically, while Bolton was Ambassador to the UN. President Barack Obama also lent assistance and cooperation to the ICC. So, for all Bolton\u2019s 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 \u2013 even if under all circumstances they o<\/span>ppose its jurisdiction over any of their citizens (and presumably the citizens of their non-States Parties\u2019 allies).<\/span><\/p>\n For all intents and purposes, the US\u2019s policy towards the ICC \u2013 at least insofar as US citizens are concerned, is expressed through the American Service-Members\u2019 Protection Act<\/a> (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) \u201cbroad 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.\u201d This refrain captures the essence of Title II, Sec. 2008 of the ASPA, dubbed the \u201cThe Hague Invasion Clause.\u201d In other words, Bolton was not making a major policy speech, but merely stating what the ASPA already provides.<\/p>\n So why did Bolton feel compelled to make this speech? Why the thunder and fury? Why the posturing and threatening?<\/p>\n Maybe he was motivated by his belief in or interpretation of what is claimed as \u201cAmerica\u2019s exceptionalism\u201d (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 \u2013 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 <\/em>state\u2019s imperial exceptionalism \u2013 we can do as we please because might is right, and if not so, tough luck.<\/em><\/p>\n 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\u2019s perverse, absurd, and in no small measure, juvenile understating of world affairs (and domestic politics).<\/p>\n Gone are the days of gunboat diplomacy<\/a>. Gone (forever) are the days when the US was (or at least was perceived to be) the<\/em> 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 \u2013 even if the US\/Trump administration \u2013 as expressed through Bolton \u2013 wishes otherwise.<\/p>\n What are we to make of Bolton\u2019s remarks<\/a> on the eve of 9\/11 before the solidly conservative Federalist Society<\/a>? In sharp, poetic, indeed \u201cChurchillian\u201d fashion (though the US is by no means under attack by the ICC), he decried<\/a>:<\/p>\n 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.<\/em><\/strong><\/p>\n Marvelous, or as the British would say, brilliant. <\/em>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\u2019s preeminence and its enduring pursuit of its deserved manifest destiny.<\/p>\n Is Bolton serious when he claims that the US will ban ICC prosecutors and judges from entering the US? Will the US \u201csanction their funds in the U.S. financial system\u201d? Will, or better yet, can the US \u201cprosecute them in the U.S. criminal system\u201d? And will it \u201cdo the same for any company or state that assists in an I.C.C. investigation of Americans?\u201d How legally permissible or appropriate is any of this? For an answer to some of this I defer to Dapo Akande\u2019s detailed analysis of the US\u2019s 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?<\/em><\/a>).<\/p>\n Of all of Bolton\u2019s 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<\/em> here<\/a>, here<\/a>, here<\/a>, and my post here<\/a>), and for good measure, against any of US\u2019s friends and allies depending on President Trump\u2019s predilections and preferences.<\/p>\n 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 <\/em>Article 13(b) of the Rome Statute<\/a>) and has the authority to seek a deferral of investigation or prosecution for a period of 12 months and more (see <\/em>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?<\/p>\n 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\u2019t think so. And even if such legislation would come to pass, would US judges seriously set aside the immunity((\u00a0\u00a0 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\u00a01947 Headquarters Agreement between the UN and the United States<\/a>. 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\u2019s Trumpenablers<\/em>,((\u00a0\u00a0 Many of high-ranking officials in the Trump administration as recently revealed by Anonymous in his or her New York Times op-ed piece<\/a> find President \u201camoral\u201d 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 \u2013 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<\/em> Thomas Friedman\u2019s \u2018Anonymous\u2019 Is Hiding in Plain Sight<\/em><\/a>, published in The New York Times, September 11, 2018; see also<\/em> Michell Goldberg\u2019s The Handmaid\u2019s Court<\/em><\/a> published in The New York Times, September 11, 2018.)) Bolton can\u2019t help himself.<\/p>\n The US may<\/em> and probably does<\/em> 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<\/em> \u2013 and, arguably, prudently so. Some of Bolton\u2019s criticisms of the ICC are not without foundation. Let\u2019s 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\u2019s first Prosecutor Luis Moreno Ocampo, not just incompetence but also unethical dealings with Libyan oil billionaire Hassan Tatanaki (see<\/em> my posts on \u201cOcampogate<\/a>\u201d here<\/a>,\u00a0here<\/a>,\u00a0here<\/a>, and\u00a0here<\/a>). There are legitimate reasons to be concerned over the subjective nature and malleable application of the complementarity principle \u2013 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 \u2013 Article 5 crimes committed in or by the permanent members of the UNSC are unlikely to be tried at the ICC.<\/p>\n To what extent, if any, the US and other non-States Parties must <\/em>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.<\/p>\n 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\u2019\u00eatre. 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.<\/p>\n Bolton\u2019s concerns are, as I noted, not without foundations, but much of his message \u2013 if it was a major (new) foreign policy as claimed (perhaps one of the many Trump doctrines we are likely to hear about) \u2013 was lost in his over-the-top characterizations and claims, which, as any careful observer would note, were misleading, if not outright fictional \u2013 or, in the words of President Trump, truthful hyperboles<\/em>. Here are but a few of Bolton\u2019s remarks (met with gratifying “America First”<\/em> applause) that detract and distort, or in Bolton\u2019s view, achieve the desired result of causing a global stir: The ICC (and its Prosecutor) are \u201cillegitimate,\u201d \u201cunchecked,\u201d \u201csupranational,\u201d <\/em>a conspiracy of \u201cglobal governance advocates\u201d \u201cantithetical\u201d <\/em>to the US\u2019s ideals, amounting to \u201cthe [US] Founders\u2019 worst nightmare come to life,\u201d \u201coutright dangerous,\u201d <\/em>with \u201cpotentially enormous, essentially unaccountable powers,\u201d <\/em>with an \u201cunspoken but powerful agenda\u201d <\/em>to \u201cintimidate U.S. decision-makers, and others in democratic societies,\u201d <\/em>and thereby to \u201cconstrain\u201d <\/em>them.<\/em><\/p>\n Bolton may not be entirely wrong (I will soon post on the ICC\u2019s 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.<\/p>\n I do not fault Bolton for advising the US administration, as he did in his op-ed piece<\/a>, 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 \u2013 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.<\/p>\n Whatever legitimate gripes the US may have with the ICC, Bolton\u2019s speech was as ill-conceived as it was ill-received. Aside from the appalling threats against the ICC prosecutors and judges, Bolton\u2019s full-throttle attack on the ICC as an \u201cillegitimate,\u201d \u201cineffective,\u201d \u201cunchecked,\u201d and \u201coutright dangerous\u201d 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 \u2013 even if they are from States Parties and are subject to the ICC\u2019s jurisdiction.<\/p>\n Effectively, through his reckless remarks, Bolton calculatedly put the US\u2019s seal of approval for other states \u2013 whether States Parties or not \u2013 to denigrate, disregard, and dismiss the efforts of the ICC in fulfilling its (the 123 States Parties\u2019) 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: \u201cThis bombastic threat against an institution\u2019s operation, no matter what the circumstances, only serves to cut our ties further with our allies.\u201d((\u00a0\u00a0 Quoted by Matt Apuzzo and Marlise Simons in U.S. Attack on I.C.C. Is Seen as Bolstering World\u2019s Despots<\/em><\/a>, The New York Times, September 14, 2018.))<\/p>\n In any event, after the most recent Pre-Trial Chamber\u2019s decision<\/a> in relation to the alleged deportation of the Rohingya people from Myanmar to Bangladesh (see<\/em> my post here<\/a>), 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\u2019s jurisdiction, see <\/em>Steven Kay\u2019s and Joshua Kern\u2019s post on Opinio Juris, Method to the Madness? John Bolton and US Objections to ICC Jurisdiction<\/em><\/a>.<\/p>\n At the end of the day, maybe we should not get all worked up about Bolton\u2019s speech to the Federalist Society. Perhaps Philip Gourevitch has it right in his piece in The New Yorker<\/a> where he notes that \u201cit is tempting to think that [Bolton] was deployed to deflect attention from\u00a0the White House chaos,\u201d having drawn parallels in his Wall Street Journal op-ed piece between the ICC Prosecutor and independent counsel (Robert Mueller<\/a>), as prosecutors \u201cdangerously free of accountability and effective supervision.\u201d Maybe, just maybe, Bolton was doing President Trump\u2019s 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\u2019s sovereignty; a clear and present danger that President Trump will not abide \u2013 not on Bolton\u2019s watch.<\/p>\n![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2018\/09\/Bolton-2.jpeg?resize=252%2C141&ssl=1\")
![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2018\/09\/Bolton-and-quote-1.jpg?resize=458%2C215&ssl=1\")
<\/a>Bolton\u2019s 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<\/a> in The Wall Street Journal.<\/p>\n
![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2015\/05\/comments2.png?resize=274%2C184&ssl=1\")
<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"