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Invade The Hague! Bolton vs. the ICC

Photo by US State Department | CC BY 2.0

Picture this on a movie poster: “The International Criminal Court Wants to Put America on Trial.  They Didn’t Count on John Bolton.”

The Ramboesque Bolton, hawk to end all hawks, has declared war on the International Criminal Court (ICC).  The reason:  ICC prosecutor Fatou Bensudahas requested authority for an investigation into alleged war crimes in Afghanistan encompassing all of the parties to the conflict.  Bolton hates the ICC because it threatens the unrestrained exercise of US military power. Speaking on Monday before the uber–conservative Federalist Society (the same wonderful folks who gave us Brett Kavanaugh), Trump’s national security adviser announcedthat the US would pursue “any means necessary,” including economic sanctions and barring ICC prosecutors and judges from the US, to stop an investigation into purported US abuse of detainees in Afghanistan.

The million-dollar question is: can the ICC exercise jurisdiction over a national of a state, like the US, which has not ratified the Rome Statute, the treaty which established the ICC?[1]  Bolton says no:  the US is not bound by a treaty it has not consented to.  The ICC says yes—ifthe alleged crimes were committed within the territory of a state, like Afghanistan, which hasratified the Rome Statute. Since Afghanistan, like any state, can prosecute crimes committed on its own soil, it can share its jurisdiction with the ICC.  Which position is correct?  Right now, there’s no answer.

The answer may not matter. On Monday, Bolton boasted of helping the Bush Administration to negotiate “about 100 binding, bilateral agreements to prevent other countries from delivering US personnel to the ICC.” One of these bilateral agreements, a Status of Forces Agreement (SOFA), is with Afghanistan.

Ms. Bensuda made her request to open an investigation to a three-judge panel in November.  Shortly afterwards, Bolton, who in March would be named as Trump’s new national security adviser, published an op-edin the Wall Street Journal, “The Hague Aims for U.S. Soldiers.”  Bolton made many of the same points in his speech on Monday.  Bolton aired several objections to the ICC.  I will discuss only what I consider to be the major ones.

Bolton worries that the ICC will erode American sovereignty.  I will let Vice President Mike Pence answer that one.  The vice president was in Latin America in June.  One purpose of Pence’s trip was to try to stem the flow of Central American refugees to the US (throwing all those kids into cages is exhausting).  On June 28, Pence held a joint press conference in Guatemala City with the presidents of Guatemala, El Salvador, and Honduras.  Exhibiting an unexpected talent for standup comedy, Pence told the audience:  “[J]ust as we respect your borders and your sovereignty, we insist that you respect ours.”

Then there is Bolton’s interesting take on aggression.  He’s for it. Bolton was an enthusiastic—even orgasmic—proponent of the US invasion of Iraq.  (Bolton still thinks the invasion was a good idea.)  Throughout his long career, the 69-year old Bolton has called for regime change in Iran, Syria, Libya, Cuba, and for a preemptive attack on North Korea. Small wonder that the prospect of aggressors being prosecuted makes Bolton nervous.

“Had the ICC existed during the Second World War,” Bolton said on Monday, “America’s enemies would no doubt be eager to find the United States and its allies culpable for war crimes for the bombing campaigns over Germany and Japan.”  True, but so what?  Bolton isn’t the first to make this point.  Even at the time, many people, including conservative Republican senator Robert Taft, thought the Nuremberg Tribunal and the Tokyo Tribunal looked a lot like victor’s justice.  But the remedy for victor’s justice is not no justice.  It’s applying the same rules to the powerful and the powerless alike. The ICC’s mandate is to do just that.

Bolton claims that the ICC is “superfluous” because the US already prosecutes Americans who commit war crimes:  “When violations of law do occur, the United States takes appropriate and swift action to hold perpetrators accountable.” If that’s true, then Bolton should have no quarrel with the ICC which only steps in when nations are unable or unwilling to conduct their own prosecutions.

The truth, however, is that the US all too often does not punish its own war criminals.  There have been no prosecutions under the federal War Crimes Act which criminalizes “grave breaches” of the Geneva Conventions; no, not even of Bush and Cheney and the other architects of the invasion of Iraq. President Barack Obama said at the beginning of his presidency that he would not seek prosecutions of figures from the previous administration.

Bolton accuses the ICC of unaccountability.  Funny, those of us on the left think it’s the White House and the Pentagon that are unaccountable.  The ICC is one way to change that.

Interestingly, there are two objections to the ICC which conservatives make which Bolton left out of his Federalist Society address.  The first is: if Americans are exposed to prosecution by the ICC, the US will be reluctant to send combat troops to other countries.  (This is a bad thing?)  The second is the argument that sometimes justice must be sacrificed in order to get tyrants to step down.  This argument may be a valid one.  There are Latin American democrats who argue that Chile’s Pinochet and the Argentine junta leaders would never have relinquished power if a prison cell had been waiting for them.

A few of Bolton’s criticisms ring true.  Bolton says that the ICC has spent a staggering amount of money and accomplished little. That’s true.  According to Forbes: “In its 15-year history, the Court has spent well over $1 billion and has only four criminal convictions to show for its work.”  (Bolton says eight convictions.)  The ICC is mocked as the “African Criminal Court” because it has yet to indict anyone from outside of Africa, leading to some African countries exiting from the Court. Bolton, who probably does not fall asleep each night reading Frantz Fanon, referred on Monday to accusations that the Court is a racist “European neocolonial enterprise.”  Forbessuggests that the ICC may be pursuing the Afghan case precisely in order to prove it doesn’t have it in for Africans.

In the end, it is unlikely that any American will stand in the dock.  The US will refuse to turn over any American the ICC indicts, and the ICC, which has no enforcement arm, will have to accept that.  That prospect may be sufficiently humiliating to deter ICC prosecutor from indicting Americans.  Nor will the US cooperate with the ICC.  Bolton made that painfully clear on Monday.  Without US cooperation, the ICC will find it well-nigh impossible to gather the evidence needed for convictions.

If all else fails, the US can always use force to keep Americans out of the ICC’s grip.  In his address to the Federalist Society, Bolton alluded to the American Service-Members’ Protection Act of 2002 (ASPA).  Bolton even used the Act’s jocular nickname, the “Hague Invasion Act.”  ASPA got that nickname because it empowers the president to use “all means necessary and appropriate,” including military force, to liberate Americans held by the ICC. Bolton would welcome the opportunity.

Notes.

[1]  In one of his last acts in office, President Bill Clinton signed the Rome Statute on December 31, 2000, but did not send the treaty to the Senate for ratification.  Less than two years later, President George W. Bush famously “unsigned” (i.e., notified the UN that the US did not intend to ratify) the Rome Statute. It didn’t matter.  The Rome Statute never stood a chance of being ratified, then or at any time afterwards.

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Charles Pierson is a lawyer and a member of the Pittsburgh Anti-Drone Warfare Coalition. E-mail him at Chapierson@yahoo.com.

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