International Law

US 'will fight' any International Criminal Court investigation of Americans or allies, says Bolton

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ICC flag outside building in The Hague

The flag of the International Criminal Court flies outside the ICC building in The Hague, Netherlands. (Image from Shutterstock.)

National Security Adviser and former United Nations ambassador John Bolton on Monday reacted to the possibility that International Criminal Court will investigate alleged war crimes in Afghanistan with a threat to prosecute its judges and prosecutors.

In his speech to the Federalist Society, Bolton said the ICC “was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent.”

The United States “will not sit quietly” if the court comes after the United States, Israel or U.S. allies, Bolton said.

“We will respond against the ICC and its personnel to the extent permitted by U.S. law,” Bolton said. “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.”

Bolton said there are “no adequate mechanisms to hold the court and its personnel accountable or curtail its unchecked powers when required,” and called the ICC “the founders’ worst nightmare come to life: an elegant office building in a faraway country that determines the guilt or innocence of American citizens.”

A transcript of the speech is here; Slate, USA Today, the Washington Post, the BBC, Fox News and the New York Times have stories.

The ICC was established in 2002 by a 1998 U.N. treaty and 123 countries have joined as state parties. Its mandate was to prosecute war crimes and other serious violations of international human rights law. Under the treaty, known as the Rome Statute, the ICC may only investigate and prosecute when a national jurisdiction is “unwilling or unable” to do. The court operates from The Hague in the Netherlands. More information on the ICC is available on the website of the ABA-ICC Project.

The ABA House of Delegates has taken a number of policy positions on the ICC over the years, which can be viewed in a timeline compiled by the ABA-ICC Project. In 1978, the ABA House of Delegates first recommended that the U.S. State Department “open negotiations for a convention for the establishment of an International Criminal Court” that would have limited jurisdiction over crimes like international airline hijackings and attacks on diplomats. In the early 1990s, the ABA created a blue ribbon panel to study the issue, and in 1998, the House passed a resolution recommending the establishment of an international criminal court by multilateral treaty to prosecute genocide, war crimes and crimes against humanity. Resolutions in 2001 and 2008 also urged the U.S. government the accede the Rome Statute and to expand U.S. interaction with the ICC, including cooperation with the court’s investigations and proceedings. In 2012, the ABA-ICC Project was established with a mission to strengthen, regularize and broaden U.S. engagement with the ICC.

The United States did not ratify or accede the Rome Statue, so it is not a state party to the ICC, but Afghanistan is. Cases are referred to the ICC one of three ways: by a referral of a state party; by a referral of the U.N. Security Council; or by an ICC prosecutor investigation of crimes in the territory of, or by a national of, a state party or a nonstate party that has consented to ICC jurisdiction.

Bolton led a similar effort to “undermine and even destroy” the ICC as an undersecretary of state for arms control in the early days of the George W. Bush administration, according to Harvard law professor Alex Whiting. Whiting, a former prosecution coordinator for the Office of Prosecutor of the International Criminal Court, wrote an analysis of Bolton’s speech in Just Security. Whiting is a member of the Board of Advisers of the ABA-ICC Project.

In 2005, there was “a major pivot,” Whiting said, when the United States didn’t block a referral of alleged Sudan atrocities to the court. The Obama administration didn’t take steps to join the court, but it adopted a policy of “constructive engagement,” Whiting said.

Whiting said Bolton was repeating “tired and misleading arguments” about the court, but he “ratcheted up the hyperbole and misrepresentations” with “scare tactics” that included a suggestion that the court will claim universal jurisdiction.

Indiana University law professor David Bosco told Slate that Bolton’s speech “sounded dramatic, but it’s actually not much of a change.”

See also:

ABA Journal (2006): “As Time Goes By”

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