The Fallacy That Attacking a Judicial Institution and its Personnel Protects Americans: A Response to John Bolton’s Speech

[Jennifer Trahan is a Clinical Professor at the NYU Center for Global Affairs.]

Monday, at the Federalist Society, National Security Adviser John Bolton delivered a major foreign policy address, devoted almost entirely to attacking the International Criminal Court, a court established to prosecute the most egregious crimes of concern to the international community. At a time when the US does indeed face many national security challenges, including North Korean nuclear weapons development, the topic was in itself an odd choice, but consistent with Bolton’s earlier preoccupation with the ICC during the George W. Bush Administration.

Many of Bolton’s arguments were a re-hash of those early US attacks on the Court during the Bush Administration, and a repeat of earlier flawed arguments that a foreign institution such as the ICC may not exercise jurisdiction over US nationals. I would 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 important to address the arguments, particularly the threats made against ICC personnel and others.

Most Opinio Juris readers will know the history that under the Bush Administration, the US engaged in a multi-pronged attack on the International Criminal Court, led by John Bolton. The US appears to be returning to this approach. It consisted of attempting to withdraw the US signature from the ICC’s Rome Statute, passing the so-called “American Servicemembers Protection Act” that contained a variety of anti-ICC measures, including standing authorization to liberate American’s from ICC custody (which would involve invading the ICC’s detention facility in The Hague), as well as obtaining over 100 bilateral immunity agreements by which countries agreed never to surrender Americans to the ICC, and, for two years, under Security Council resolutions 1422 and 1487, rendering peacekeepers from non-ICC States Party immune from ICC prosecution.

By most accounts, these measures backfired. When the US threatened states that they needed to enter into these immunity agreements (which Bolton refers to in his speech as “one of [his] proudest achievements”), various states resisted, and rather than bending to US threats of losing military assistance, instead turned to China to receive that assistance. This is then an odd example for Bolton to invoke proudly as it had the net effect of increasing China’s sphere of influence. Insisting on peacekeeper immunity led other states to questions why nationals of any country should be above the rule of law, and the measures were not renewed by the Security Council. All in all, most states saw this approach for what it was—bully tactics against a judicial institution. These measures did not help protect the US, but damaged its reputation internationally and US interactions and credibility with US allies, including European allies who are generally staunch supporters of the ICC.

The argument that a foreign institution cannot exercise jurisdiction over Americans absent US consent is of course deeply flawed, and John Bolton would know this. If an American commits murder in Paris, he or she may be tried under the French legal system. Under terrorism statutes, when a country (e.g. the US) tries terrorist for crimes committed abroad, the US don’t seek permission from the country of nationality. For example, in conducting prosecutions at Guantanamo, the US didn’t ask permission of Afghanistan, Saudi Arabia, Yemen or any other foreign country – nor does the US do so when conducting terrorism prosecutions in US federal courts. The ICC’s jurisdiction over crimes by US nationals in Afghanistan is based on Afghanistan having ratified the ICC’s Rome Statute, which, under Rome Statute Article 12, created ICC jurisdiction over genocide, crimes against humanity or war crimes committed by Afghan nationals and crimes committed on Afghan territory; as to crimes in Afghanistan, it is worth noting that the ICC is investigating exceedingly horrific and massive crimes by the Taliban, as well as crimes by Afghan forces, so is by no means singling out US nationals.

But, alas, Bolton’s speech is not only rehashing old arguments, but contains a new threat towards ICC personnel, states and corporations (i.e., NGOs) that assist any case involving US nationals or if a situation involving Israel or “other U.S. allies” proceeds before the Court:

Bolton states:

If the Court comes after us, Israel or other U.S. allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: . . .

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.

So, added to the US travel ban will be ICC officials trying to implement the rule of law? And ICC judges and prosecutors are threatened with having assets frozen and being prosecuted? And any “company” (e.g., NGO) or state that assists an investigation involving US nationals can be dealt with similarly? Of course, the ICC Prosecutor and ICC President have to regularly travel to the US to report to the UN Security Council on the Libya and Darfur situations referred by the Council to the ICC. That could prove difficult given these new threats.

Such threats of extra-legal measures appear aimed at trying to subvert a judicial process and stifle the work of US-based NGOs. The Prosecutor’s request to move the Afghanistan situation from the initial Preliminary Examination phase to the Investigation phase is pending. And, whereas Bolton complains of the Prosecutor’s “unaccountable powers,” in fact, this decision regarding the Afghanistan situation will not be made by the Prosecutor, but by the Judges. The ICC judges are, in this way, exactly the “check” that Bolton claims does not exist; other checks and balances are similarly built into the Rome Statute at various stages of proceedings.

Finally, it is not lost, particularly on an American audience, that Bolton made his speech one day shy of 9/11. But it is wrong to link his speech to that horrific day and all those who tragically died. His speech is not about protecting US national security, but ensuring that any American nationals (CIA or Department of Defense) implicated in torture in Afghanistan are above the rule of law. Such a policy of “exceptionalism” actually works against US interests.

As I wrote on Opinio Juris last fall, the US has a very easy solution to the ICC Afghanistan inquiry and that is to conduct “complementarity”—that is, to prosecute any cases itself, thereby divesting the ICC of jurisdiction. The ICC is a court of last resort that only acts when the domestic legal system fails to do so. Bolton states that the US has “the most robust system of investigation, accountability and transparency in the world.” In that case, the US should have no trouble prosecuting these cases itself. I am not advocating exposing Americans to ICC proceedings; if the US can prosecute these cases domestically (which it can) then it should do so. But the years of delay that have occurred thus far suggest the US has no interest in this approach. US prosecutions would clearly be the best approach for solving this situation, and avoiding the US/ICC showdown that Bolton threatens, and which will benefit neither the US nor the ICC.

To be completely clear: the US is made safe by following the rule of law. We are not made safe by banning ICC Prosecutor (Fatou Bensouda) or any of the ICC judges from traveling to the US, nor by threatening US-based NGOs, or other states, nor by ensuring American nationals are above the rule of law. These bully tactics do not well-serve the US, and will be seen for what they are.