John Bolton gave his first public address Monday since becoming national security adviser, and surprisingly, the topic was not Iran, North Korea, Syria, China, or any other national security hot spot, but the International Criminal Court.
The ICC is certainly not a new obsession for Bolton, who, in the speech hosted by the Federalist Society on Monday in Washington, called his role spearheading the George W. Bush administration’s opposition to the court “one of my proudest achievements” and described the court as a “freewheeling global organization claiming jurisdiction over individuals without their consent.” The impetus for the current U.S. offensive against the ICC is that its judges are currently considering whether to authorize the prosecutor to investigate alleged war crimes committed in Afghanistan, including by the U.S. military and the CIA. The potential scenario of Americans being prosecuted by an international court for crimes committed abroad is exactly the scenario Bolton and other opponents warned about in the court’s early days.
The Palestinian Authority has also been pushing the court to accelerate a long-running inquiry into alleged Israeli crimes in the Palestinian territories, one factor behind the decision announced Monday to order the closure of the Palestine Liberation Organization’s office in Washington. (The United States and Israel are not members of the court, but Afghanistan and, more controversially, the Palestinian Authority are, giving the ICC jurisdiction over crimes committed there.)
For background, the U.S. has long had a fraught relationship with the ICC. When delegates originally gathered in Rome in the late 1990s to negotiate the formation of the court, many of them wanted it to have universal jurisdiction to prosecute crimes against humanity across the globe, but the U.S. pushed back, wanting to protect U.S. citizens and troops. The court that was eventually established has jurisdiction over crimes committed only in its member states (or those referred to it by the U.N. Security Council). This is what makes it so difficult today for the court to try abuses in places like Syria and Myanmar, which are not members.
Bill Clinton eventually signed the Rome Statute, the treaty that established the ICC, in 2000, but it was never ratified by the U.S. Senate, and President Bush “deactivated” the signature in 2002. That year, Congress passed the American Servicemembers’ Protection Act, prohibiting cooperation with the court. Opponents dubbed it “The Hague Invasion Act” for a clause authorizing the use of force to secure the release of U.S. citizens detained for prosecution by the court.
Although not a member of the court, the United States has at times cooperated with it. To Bolton’s vocal dismay, the Bush administration eventually softened its stance on the ICC, choosing to abstain rather than veto a referral of allegations of war crimes in Darfur, Sudan, to the court. The Obama administration expanded the level of cooperation, offering rewards for suspects wanted by the court and voting to refer the situation in Libya under Muammar Qaddafi to the court. Judging by Monday’s remarks, that level of cooperation is not going to continue under Trump.
The actual policy measures Bolton announced in the speech sound more severe than they are. He vowed that if the court comes after U.S. or Israeli citizens, “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.”
However, these are more or less the measures already laid out with the 2002 ASPA law. As David Bosco, a professor at Indiana University and the author of Rough Justice: The International Criminal Court in a World of Power Politics, told me, “It sounded dramatic, but it’s actually not much of a change. I thought it was interesting that he talked only about working within the bounds of existing legislation and didn’t seem to be calling on Congress to take up any additional legislation. I think what he did here was to try to take existing restrictions and frame them as dramatically as possible.”
Most of the speech was a familiar litany of Bolton’s objections to the court, again framed for maximum drama. He ominously warned the audience:
[The ICC] claims “automatic jurisdiction,” meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty. Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in the room today, are purportedly subject to the court’s prosecution should a party to the Rome Statute or the Chief Prosecutor suspect you of committing a crime within a state or territory that has joined the treaty.
This is technically true. If you, a U.S. citizen, go to another country and become accused of a crime against humanity, and that country’s government decides that, rather than prosecute you itself, it will refer your case to the ICC, then yes, you could find yourself on the docket at the Hague facing judges elected by an international body rather than the U.S. government. Then again, I never got to vote for anyone in the Canadian government, but if I went and robbed a gas station in Calgary, the local authorities could prosecute me without anyone kicking up much of a fuss about national sovereignty.
One way to avoid having U.S. citizens be prosecuted by the court would be for the U.S. not to commit war crimes in other countries, or to investigate and prosecute those who do. The ICC is supposed to be the court of last resort that prosecutes the planet’s most serious crimes only when governments are unable or unwilling to. Bolton argued today that the Afghanistan investigation disproves this notion since “we know that the U.S. judicial system is more vigorous, more fair, and more effective than the ICC.” In other words, it’s simply inconceivable that the U.S. would fail to hold anyone accountable for war crimes, an argument contradicted by a number of cases in Iraq and Afghanistan. Bolton may frame his argument as a defense of sovereignty, but it often comes across as a Nixonian case for impunity: If the United States did it, it’s not a war crime.
Bolton argued that the ICC is a weak and ineffective institution that is “hardly a deterrent to dictators and despots determined to commit horrific atrocities.” He has a point. Despite his indictment for crimes in Darfur including genocide, Sudan’s Omar al-Bashir remains at large and able to travel the world. Thanks to the fact that Syria and Iraq are not ICC members—coupled with inaction by the U.N. Security Council—ISIS and Bashar al-Assad are shielded from prosecution for their horrific crimes against humanity. As Bolton noted, “Since its 2002 inception, the court has spent over $1.5 billion while attaining only eight convictions.”
Recent years have seen a number of African countries pull out of the court, complaining that it is a racist institution that has thus far only prosecuted Africans. (Although African governments’ concerns are somewhat different than Bolton’s, he did allude to them. If you predicted a senior Trump administration official using the phrase European neocolonial enterprise in 2018, come collect your prize.)
Bolton is right that the court is diminishing in both its effectiveness and prestige. “We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us,” he said. But this undercuts his argument that it poses a serious threat to U.S. sovereignty and the safety and liberty of U.S. citizens. The ICC has dragged its feet for years on both Afghanistan and Israel, likely in part because of the fear of U.S. backlash, and as Bosco has argued, the U.S. has plenty of time and numerous potential methods to push back on any prospective prosecutions without going to war with the court itself, an institution that the two previous administrations both found useful, at times, to U.S. interests.
But Bolton has been waiting a long time for an opportunity to take on the ICC. He sees most international law as a fanciful delusion, and the protection of U.S. sovereignty from meddling foreign institutions has been a leitmotif of his entire career. The persnickety, lawyerly Bolton often seems an odd match with Trump. And given his past support for diplomatically isolating Russia and pre-emptively attacking North Korea, his experience in the administration so far has certainly put him in some unexpected situations. But Trump certainly shares Bolton’s preoccupation with sovereignty and suspicion of multilateral institutions. In fact, the president may even be too extreme on these matters for Bolton’s taste. During a question-and-answer session following Monday’s speech, Bolton was asked for a multilateral institution he does approve of and pointed to NATO as one that “advances American interests, is consistent with American sovereignty, and strengthens America and its allies around the world.” The president, suffice to say, doesn’t see it that way.
After a lifetime as Washington’s leading sovereignty warrior, Bolton has met an ironic fate: to have found a boss who makes him look like a globalist.