John Bolton, Unplugged – and Unhinged — About the ICC

John Bolton, Unplugged – and Unhinged — About the ICC

Much has been made of how relations between the ICC have improved since the second term of Bush the Younger. I think we all expected that to change in the wake of Trump’s election, particularly after the OTP announced its intention to investigate detention-related abuses in Afghanistan and in CIA black sites in Eastern Europe For a while, nothing much of note happened…

Enter John Bolton, comic-book villain, stage right:

Mr. Bolton also planned to threaten to impose sanctions against the International Criminal Court if it moves ahead with investigations of the U.S. and Israel.

“If the court comes after us, Israel or other allies, we will not sit quietly,” Mr. Bolton planned to say, according to his prepared remarks.

Among the responses, Mr. Bolton says, the U.S. would ban ICC judges and prosecutors from entering the country.

“We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system,” Mr. Bolton adds. “We will do the same for any company or state that assists an ICC investigation of Americans.”

I am not going to bother taking these statements seriously, other than to note my curiosity about what provision in the US Code criminalises working with an international tribunal properly exercising its jurisdiction. Suffice it to say that the statements are completely unhinged and should be met with a hardy guffaw by the OTP.

I’m old enough to remember when Bolton’s patented brand of ridiculous sabre-rattling would have met with astonishment, if not outrage, in the US and elsewhere. In the age of Trump, though, we are just delighted to see a senior Trump administration official make threats in complete sentences — and without random capitalization.

Topics
Courts & Tribunals, International Criminal Law, International Human Rights Law, National Security Law
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Robert W. Ash
Robert W. Ash

Response…Quite apart from what one may think of Mr. Bolton, does he not have a point? The ICC is a court of limited, not plenary, jurisdiction. It derives both its existence and authority from the consent of the States Parties to the Rome Statute, none of which—individually or collectively—may legitimately authorize the ICC to impose its will on non-party states or their nationals or acquiesce in the ICC’s doing so. It is a foundational principle of customary international law that a State that has not become a party to a treaty or other international convention is not bound by the terms of such treaty or convention. See, e.g., Vienna Convention on the Law of Treaties, art. 34, opened for signature May 23, 1969, 1155 U.N.T.S. 331. In other words, a non-party state to an international convention is not bound by the terms of such convention without its consent. As such, in general (and absent an intervening, bilateral agreement between them that modifies custom), the relations between a State Party to a convention and a non-party State to that same convention are governed by customary international law. Recognition of this principle is key when determining the legal reach of an institution… Read more »

John
John

Afghanistan is a member of the ICC, and the ICC has jurisdiction over those atrocities named in the Rome Statute committed on Afghan territory by any party, including the US. To put it differently, Afghanistan has explicitly consented to share its territorial jurisdiction over those atrocities with the ICC by becoming a state party to the Treaty of Rome. The normal situation is international law is that a state can exercise jurisdiction over anyone who commits a crime on its territory (with a few exceptions, such as individuals who enjoy diplomatic immunity). To claim that US citizens (and it is individuals who are subject to ICC jurisdiction, not sovereign states) cannot be subject to ICC jurisdiction for possible crimes committed on Afghan territory is to deny this basic principle of territorial jurisdiction under international law. Asserting US immunity from the ICC for crimes committed in Afghanistan, in other words, is the position that oversteps legitimate bounds.

Anon
Anon

How about ICC prosecuting terrorists like Baghdadi (ISIS), Ayman al Zawhary (AQ), Hafeez Saeed (LeT) and scores of terrorists owing allegiance to the various Islamic terror networks like the Islamic State, Taliban and Haqqani Network rather than attempting to investigate and prosecute the officers and men who tried to fight the terrorists.

Jackdaw
Jackdaw

@Anon

The ICC is afraid to prosecute rabid terrorists who might target the ICC for her efforts.

*cue chicken clucking sound effect *

Salem
Salem

“I am not going to bother taking these statements seriously, other than to note my curiosity about what provision in the US Code criminalises working with an international tribunal properly exercising its jurisdiction.”

ASPA s.2004(h), surely?

Non liquet
Non liquet

Are John Bolton’s statements violations that qualify as offences against the administration of justice under Article 70 of the Rome Statute? Aren’t they meant to intimidate Court officials into not investigating cases such as in Afghanistan?

Anon
Anon

I believe ISIS has committed acts of terror in Afghanistan.

Jackdaw
Jackdaw

When I see a Haqqani or ISIL terrorist in the dock in The Hague, I’ll take back what I said.

Until than, all the ICC is doing is slow walking and double talking the international community while the streets in Afghanistan, Iraq and Syria run red with blood.

Jackdaw
Jackdaw

@Kevin

The ‘hard working Prosecutors’ of the ICC, who needed to enlist Angelina and Brad Pitt to help them capture Joseph Kony.
https://www.thetimes.co.uk/edition/news/angelina-jolie-volunteered-to-snare-warlord-joseph-kony-in-dinner-honeytrap-q3xw8bpzt

Who will the ICC enlist next to help them?
The Justice League?

Salem
Salem

“Although s2004(h) prohibits cooperating with the Court, I don’t believe it criminalises it.”

Could you expand on this? It’s true that it doesn’t say “It is an offence to…”, and no penalty is specified, but neither of those are required for a statute to make an action criminal.

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[…] like to dismiss Bolton’s remarks as “unhinged” and “ridiculous sabre-rattling” as Kevin Jon Heller has, but here in the US, alas, there is a segment of the public his speech will appeal to, so it is […]

Anon
Anon

it led to essentially zero actionable intelligence, and (2) it was great for producing more terrorists.
Terrorists were not produced because of alleged US torture. They were produced by radical Islamist preachers. The US and the West ought to have effectively neutralised the mullahs rather than only the foot soldiers of Islam.