Some few days back in a typical hawkish Rambo movie style, John Bolton, US National Security Advisor has declared war on the International Criminal Court (ICC).
The reason: ICC prosecutor Fatou Bensuda had 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 before the conservative Federalist Society, Bolton announced that 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?
Bolton says no: the US is not bound by a treaty it has not consented to.
The ICC says yes, if the alleged crimes were committed within the territory of a state, like Afghanistan, which has ratified 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 because 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, is with Afghanistan. Bensuda made her request to open an investigation to a three-judge panel in November 2017.
Shortly afterwards, Bolton, who in March (next year) would be named as Trump’s new national security advisor, published an article in which he aired several objections to the ICC. He stated clearly that he worries that the ICC will erode American sovereignty.
It must however be noted that Bolton is not a stranger to aggression.
He was an enthusiastic, even orgasmic proponent of the US invasion of Iraq. Shockingly even today he thinks the invasion was a good idea. Throughout his long career, he 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.
Bolton claims that the ICC is “superfluous” because the US already prosecutes Americans who commit war crimes: He averred that “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 criminalises “grave breaches” of the Geneva Conventions; not even of Bush and Cheney and the other architects of the invasion of Iraq. Even 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. This is extremely very funny because those of us on the political left think it’s the White House and the Pentagon that are unaccountable and 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. To them this will be 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.
However, 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 very true.
According some researches, in its 15-year history, the Court has spent well over $1 billion and has only four criminal convictions to show for its work.”
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 even referred during his address to accusations that the Court was a racist “European neo-colonial enterprise”. Some critics from Bolton’s corner posit that the ICC may be pursuing the Afghan case precisely in order to prove it doesn’t have it in for Africans.
From where I stand, I can safely say that 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 in his address. Without US cooperation, the ICC will find it well-near 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. Meanwhile, justice to victims of war crimes remains a pipe dream.