Why John Bolton vs. Int’l Criminal Court 2.0 is Different from Version 1.0

It is tempting to read or listen to John Bolton’s speech on the International Criminal Court (ICC) and think, we’ve seen this movie before and know its ending. And in many ways, that’s true. In the early years of the George W. Bush administration, Bolton “was honored” (his words) to lead a similar effort to undermine and even destroy the court. That honor did not last. The Bush administration soon retreated from this hostile stance, recognizing that many of the United States’ most important allies were members of the court (of the 29 members of NATO, only the U.S. and Turkey are not) and that the court could serve U.S. interests and policy goals. A major pivot occurred in 2005 when the U.S. assented to the U.N. Security Council referral of Sudan to the court to address the atrocities in Darfur. Obama officials then built on the Bush administration’s revised approach and adopted a policy of constructive engagement with the court, while still not taking any active steps to join.

So, in watching Bolton repeat many of the same tired and misleading arguments about the court from the early Bush administration, one might simply think, here we go again: a temporary return to the bad old days of hostility toward the ICC, followed by a foreseeable rapprochement. But for four particular reasons, it would be a mistake to believe that this sequel has such a predictable plotline. This time, the consequences for the court and the rule of law in the world will likely be far graver, and the return to a constructive relationship with the ICC in the future much harder. This is one of those areas in which Trump administration policies may cause irreversible damage, and it is important to understand how and why.

1. Greater willingness to spread disinformation

First, Bolton ratcheted up the hyperbole and misrepresentations in his attacks on the court. Specifically, he offered up a host of false claims about the scope of the ICC prosecutor’s discretion, the basis for the court’s jurisdiction, and the definitions of crimes. He resorted to naked scare tactics, suggesting that the court will next “claim” universal jurisdiction (not available under the statute) or attempt to prosecute U.S. officials for the crime of aggression (not available against non-State Party actors or State Parties that have not specifically acceded to the crime itself). Perhaps Bolton felt the freedom to take this dishonorable path because the current administration allows, if not rewards, such disinformation by senior officials. And his ultra-friendly audience was surely no check.

There’s also a special cost to these tactics in the current domestic and international political environment. Bolton’s chest-thumping remarks will surely win points with his boss, President Trump, who has used similar crude tactics to attack the Department of Justice, the Mueller investigation, and courts. The continued embrace, if not expansion, of such propaganda tactics to de-legitimize judicial institutions can only further erode and undermine the rule of law at home and around the world.

2. Harsher punitive measures against the Court

Second, Bolton has escalated the measures that he says the U.S. will take to counter the ICC. It is one thing to refuse to join the ICC, assist it, or cooperate with it. That is to be expected from this administration, and the early Bush administration took those steps too. But Bolton also included this disturbing passage in his speech:

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.

The reality is that there appears to be no domestic legal authority to take up the core of these measures, but such language demonstrates a willingness by this administration – which has shown a remarkable disregard in the past for law, institutions, and norms – to go very far in its efforts to break the court.

And here again, the knock-on effects of this policy position are especially dangerous abroad. The suggestion that the U.S. government will target individual prosecutors and judges for sanction, including criminal prosecution, sends an alarming signal to authoritarian leaders around the world, green-lighting any efforts by them to attack independent judiciaries within their countries.

3. A far weaker Court

Third, supporters of the court around the world, including the 123 nations that are States Parties, may not fight for the institution as they did in the early Bush years. At that time, there was enormous enthusiasm for the court, but that energy has waned amidst a global political climate that has turned away from international cooperation and commitment. Bolton exaggerated this point, suggesting that the world is on the verge of abandoning the court, but it is true that the commitment of even the court’s members has diminished. Given all the battles that principal U.S. allies are fighting over trade, immigration, NATO, the environment, and Russia, how much will they prioritize defending the ICC? The risk is that U.S. pressure to de-fund the court or limit its activities could have real consequences this time with even friends of the court willing to sacrifice the institution to focus on other goals.

4. Direct clash with the United States

Fourth, there is the looming Afghanistan investigation, which will likely be authorized any day now by a pre-trial chamber and which no doubt prompted Bolton’s speech today. Indeed, White House Press Secretary Sarah Sanders said on Monday, “They told us they were on the verge of making that decision, and we’re letting them know our position ahead of them making that decision.” The pending decision is expected to authorize the prosecutor to investigate the Taliban and Afghan government forces, as well as U.S. personnel for acts of torture against detainees in Afghanistan and at black sites in Poland, Romania, and Lithuania. There are reasons to believe that the ICC prosecutor will focus on the crimes of the Taliban, that far exceed in scale the allegations against U.S. persons, but just the existence of this investigation will likely become an impediment to a more constructive relationship between the U.S. and the ICC in the future. On Monday Bolton described the potential U.S. targets of an ICC investigation as “American patriots, who voluntarily went into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks.” Given this framing, it will be challenging for future administrations to find a path back to even a constructive relationship with the ICC.

In sum, the policies announced today should not be dismissed as just some more overheated bluster from Bolton and this administration. The new rhetorical framing and policy positions genuinely risk serious damage to the ICC and the rule of law around the world, and these steps will be difficult, if not impossible, to undo. The court, for instance, may no longer be recognizable by the time a new U.S. administration makes the effort to pick up the pieces.

While the new U.S. posture reflects the particular ideological stances of Bolton and President Trump, it is also a further consequence of the misguided embrace of torture by U.S. government officials following 9/11. It is because the ICC is turning to scrutinize allegations of U.S. torture in Afghanistan and elsewhere that Bolton had to turn his sights on the court and bring out a wrecking ball. The U.S. has a proud tradition of initiating, supporting, funding, and participating in international institutions to achieve accountability for international crimes, dating back to Nuremberg and continuing through the 1990s in the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and elsewhere. Today the U.S. turned against that legacy, likely for many years to come. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).