12 Sep 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:
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.
[…] This article was originally published on Opinio Juris. […]
“Such threats of extra-legal measures” What extra-legal measures? Bolton explicitly states that he will take measures “permitted by U.S. law.” Or are you claiming that ASPA is somehow a violation of international law? You can’t have it both ways. Yes, France doesn’t need US consent to prosecute US citizens who commit crimes under French law in French jurisdiction. But by the same token, the US doesn’t need Gambia’s consent to prosecute Fatou Bensouda if she conducts ICC-related investigative activity in a US jurisdiction. Mind you, it’s far from clear that just because France can prosecute US nationals for crimes committed on its territory, it can delegate that right to a third party. “To be completely clear: the US is made safe by following the rule of law.” I strongly agree. And the ASPA is law. US-based NGOs contemplating assisting the ICC in an investigation involving US nationals should be aware of the legal implications of their actions. John Bolton isn’t making a threat, he’s announcing a plan to deter illegal activity. “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… Read more »
The “extra-legal measures” are his threats against ICC personnel and corporations (which would include NGOs). ASPA relates to prohibiting US cooperation. It does not provide foundation for any of these new, and extra-legal, threats. I would not expect the Prosecutor to attempt investigations on US soil; that is legally precluded under ASPA. But the threats made were not if the Prosecutor conducts an investigation on US soil; they were more broadly aimed if the ICC proceeds regarding the Afghanistan situation, examining crimes against Israel or other US allies. US NGOs are free to operate in the United States; there are no legal implications to any actions related to the ICC. ASPA does not cover NGOs in any way, and cannot be amended by unilateral statements. Well if you are correct (and you are not) that the US has prosecuted all the crimes committed by service-members in Afghanistan (which would need to include the CIA as well), and the secret prisons at issue, then there is nothing to worry about. If the US has fully performed complementarity, there is no case. And, if the US can make this showing, it should engage with the Court and do so.
The ASPA prohibition is not limited to the ICC and its officers. It also extends to anyone whose assistance of the ICC might amount to agency[2004(h)], or anyone who might cause a government body to provide information to the ICC[2004(c)]. For example, suppose an NGO made an FOIA request of a government agency, with the aim of providing the info to the ICC. That’s arguably breaching ASPA twice over. Moreover, the prohibition is not limited to investigations of US nationals – it is equally illegal to conduct an ICC investigation of a non-US national on US soil. Moreover, the relevant powers of the President are not limited to the ASPA. If he deems that ICC officers entry to the US is contrary to the national interest, he is lawfully entitled to prevent it. If he deems that ICC investigations are a threat to national security, he is lawfully entitled to take actions through the financial system. And so on. I’m not thrilled about the huge range of powers entrusted to the executive, but it’s a bit funny to only start viewing them as a threat to the rule of law when they’re used against an alien court. Finally, the US… Read more »
[…] 2018, the Hague Conference and what it stands for is more important than ever. If you consider John Bolton’s recent speech on the ICC, or more generally the strains and stresses today on the international system, I think […]
Bolton’s threats are most certainly not covered by existing APSA language. 2004(c) is on transmittal of letters rogatory and completely off-point. And 2004 (h) says the ICC cannot investigate on US soil. Bolton’s threats were not limited to these two situations but more broadly aimed at ICC personnel and any company or state that assists the ICC. Are you saying Fatou Bensouda is a “national security threat” and the US should use post- 9/11 counter-terrorism measures against her? That is a hugely frightening idea and massive over-reach. If anyone can be designated a “national security risk” because Bolton’s rose-colored glasses see it that way, then the rule of law is truly in peril in the US. If the US believes the ICC has no jurisdiction over US nationals in Afghanistan subsequent to Afghanistan’s ratification of the Rome Statute, then the US (if it is engaged enough to show up) can present that argument to the ICC judges, who would no doubt reject it, as it contravenes the plain language of the Rome Statute. Given the jurisdiction that exists, the US can avoid all of this by conducting complementarity– that is, implementing the rule of law itself (as can any other… Read more »
[…] with regard to the situation in Afghanistan has generated a lot of interest (see here, here, here and here). There are a plethora of policy and political issues raised by the looming clash between […]
You continue to put the cart before the horse. The US does not recognise the ICC, and is not bound by the ICC’s decisions on anything, including jurisdiction. Of course you are right that if the US satisfies the ICC, whether on complementarity or anything else, the ICC will leave it alone, but the US is not obliged to satisfy the ICC. Instead, the US has conducted a largely successful campaign to prevent the ICC from being able to affect American interests. The last thing it should now do is give the ICC some kind of legitimacy by appearing before it. That said, I agree the US should itself prosecute US nationals in its jurisdiction where there is good evidence they have committed serious crimes. But neither you nor anyone else has presented any evidence otherwise. You know full well that the US is a state with a very strong rule of law. If you seriously doubt this, consult e.g. WJP’s Rule of Law Index. Indeed, what you are asking for is an assault on the rule of law – it would likely be illegal for US prosecutors, civilian or military, to make prosecution decisions according to a political criterion… Read more »
I get the feeling we aren’t going to agree on any of this, so I will respond only briefly, as I think this could go on indefinitely. Any crimes committed in the territory of Afghanistan, Afghanistan had jurisdiction over; it has given or assigned that jurisdiction to the ICC rather than exercising it itself. Thus, the ICC has the jurisdiction that Afghanistan would have been able to exercise over crimes committed in its territory. Also, as I noted, the US already had independent legal obligations to investigate and/or prosecute torture under the Torture Convention (and federal and military law implementing it), so the legal obligations already exist independently. I am glad you agree the US should prosecute US nationals in its jurisdiction where there is evidence of serious crimes. Maybe read the Senate Foreign Intelligence Committee Report about CIA conduct in secret prisons and see if you then say there is no evidence of any wrongdoing. I don’t doubt that US federal courts function extremely well in the United States– if they are utilized. I am also not doubting the capability of the US military to conduct prosecutions. As I say, if all the cases the ICC is examining have… Read more »