John Bolton, Unplugged – and Unhinged — About the ICC

by Kevin Jon Heller

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.

16 Responses

  1. 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 like the ICC, an institution created pursuant to the Rome Statute, a treaty to which many significant states have not acceded (such as, the United States of America, the People’s Republic of China, Russia, India, Pakistan, Israel, Iran, and Egypt, to name but a few). That may not please those who are unhappy that many major states have declined to accede to the Rome Statute, but such displeasure does not sanction violating customary international law to bring non-party state nationals within the ICC’s ambit (the ends, no matter how laudable, do not justify unlawful means; imposing the terms of a treaty on non-party states violates international law). To ensnare nationals of those states that have not acceded to the Rome Statute, Article art. 12(2)(a) was included in the treaty text. But, once again, that hook was agreed to by the States Parties to the Rome Statute, not by the states against which the OTP seeks to assert its jurisdiction. It is that point that Mr. Bolton raises. The United States is not a party to the Rome Statute. Hence, United States nationals are not subject to the jurisdiction of a court created by a treaty to which the United States is not a party. To push back hard when the OTP appears to be overstepping its legitimate bounds does not seem unreasonable to me.

  2. 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.

  3. It’s a very old debate, so I don’t want to rehash the argument again. Suffice it to say that the US was the most vocal supporter of the Special Court for Sierra Leone’s prosecution of Charles Taylor, even though Taylor was a national of a state (Liberia) that was not a party to the agreement between the UN and Sierra Leone that created the tribunal. So the US’s current outrage is conveniently selective.

    If you are interested in the substantive explanation of why the principle you cite does not prevent an international tribunal from prosecuting Americans who commit international crimes on the territory of other states, I would highly recommend Dapo Akande’s excellent piece here:

  4. 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.

  5. @Anon

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

    *cue chicken clucking sound effect *

  6. Anon,

    Torturing people is not “fighting terrorists.” There is an endless literature documenting (1) it led to essentially zero actionable intelligence, and (2) it was great for producing more terrorists.

    As for the first point, the ICC has no jurisdiction over Iraq or Syria or Pakistan or India, so it cannot prosecute crimes committed by people like Bahgdadi and Saeed. It can prosecute Zawhary insofar as he is responsible for crimes on the territory of Afghanistan.

    There is little question that the OTP will prioritise crimes committed by the Taliban and Al Qaeda over CIA torture, if only because they will be much easier to prosecute.

    There is no evidence whatsoever that the OTP is afraid to prosecute terrorists — not that Jackdaw was making a serious point. (I presume he is writing from Afghanistan or Syria or Iraq, as I know he would never insult hardworking prosecutors from the safety of his keyboard in the Global North.)

  7. “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?

  8. Salem,

    Interesting point — but although s2004(h) prohibits cooperating with the Court, I don’t believe it criminalises it.

  9. 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?

  10. I believe ISIS has committed acts of terror in Afghanistan.

  11. 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.

  12. Well, you will never see the ICC prosecute someone in Syria or Iraq without a UNSC referral, as it does not otherwise have jurisdiction. And given that the OTP is waiting for authorization to formally investigate in Afghanistan, you should cut them at least a little slack.

  13. @Kevin

    The ‘hard working Prosecutors’ of the ICC, who needed to enlist Angelina and Brad Pitt to help them capture Joseph Kony.

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

  14. “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.

  15. 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.

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  1. […] 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 […]