Ambass. David Scheffer on John Bolton’s Announcement of “Ugly and Dangerous” Punitive Actions against Judges, Prosecutors of Int’l Criminal Court

[Editor’s Note from Ryan Goodman: I asked Ambassador (ret.) David Scheffer, leading expert on the United States and International Criminal Court for a comment on John Bolton’s speech and the actions announced by the Trump Administration toward the Court. Stay tuned as well for an essay by another top expert Just Security’s Alex Whiting.]

John Bolton’s speech today isolates the United States from international criminal justice and severely undermines our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world. The double standard set forth in his speech will likely play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law. This was a speech soaked in fear and Bolton sounded the message, once again, that the United States is intimidated by international law and multilateral organizations. I saw not strength but weakness conveyed today by the Trump Administration.

Further, the speech may encourage States Parties, including the larger ones, to come to the defense of the International Criminal Court and not only rebut Bolton but respond with their own punitive measures against the United States. I doubt any will take this kind of pontificating abuse lying down. The value of American rhetoric has been cheapened by the Trump Administration. Foreign governments recognize that, particularly authoritarian ones bent on their own regressive, aggressive, and criminal designs. The Court stands for the rule of law on atrocity crimes, and that will not change. I assume many will come to its defense and thus strengthen the Court’s mandate.

The punishments called for in the Bolton speech are ugly and dangerous. To penalize judges and prosecutors in this manner invites comparisons to fascism, where individuals who do not toe the line are marked and punished, particularly in the judicial sector. Bolton just invited other countries to punish U.S. judges and U.S. prosecutors who are not ruling in the way they prefer on cases that concern their interests (and there are plenty of those cases in America). Even just investigating a case or having it on the docket in U.S. courts could trigger that kind of (now) reciprocal punishing treatment. That is an unprecedented development in American legal history. 

About the Author(s)

Ambassador David Scheffer

Mayer Brown/Robert A. Helman Professor of Law at Northwestern Pritzker School of Law, Director of the Center for International Human Rights at Northwestern University Pritzker School of Law, Former U.S. Ambassador at Large for War Crimes Issues (1997-2001)