Many observers have already written, on Just Security and elsewhere, of how National Security Advisor John Bolton’s predictable attack on the International Criminal Court (ICC) last week was deeply misguided, and ultimately counterproductive.
As Ambassador (ret.) David Scheffer wrote here, for instance, it will “isolate the United States from international criminal justice and severely undermine our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world”; will “play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law”; cheapen American rhetoric; and may even backfire on its own terms, by “encourag[ing] 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.” David Bosco prophesizes that Bolton’s remarks–which addressed the prospect of ICC charges against U.S. officials for their official acts “in a way that was maximally offensive to the court, often inaccurate, but also hollow at its core”–might “actually boost the court’s legitimacy” worldwide. And John Bellinger similarly warns that ICC judges “will want to double down and not be cowed by the Trump Administration’s threats,” and therefore might be even more aggressive with respect to U.S. officials in the (possible) forthcoming Afghanistan investigation.
Jane Stromseth explains why Bolton’s critiques of the ICC are so grossly overstated and ill-informed. And on the irreversible damage the speech may cause, Alex Whiting is a must-read. Whiting and Alex Moorehead collect reactions of other nations here.
It’s worth noting, in addition, that Bolton’s principal accusation–that the ICC “constitute[s] an assault on the constitutional rights of the American people and the sovereignty of the United States”–is at best misleading, and perhaps more accurately described as overdramatic nonsense. One might reasonably believe, as President Clinton wrote when he signed the Rome Treaty, that as a policy or equitable matter “[ICC] jurisdiction over U.S. personnel should come only with U.S. ratification of the treaty.” Even so, Americans’ constitutional rights aren’t undermined when they are tried in foreign courts. Nor is U.S. “sovereignty” threatened when U.S. nationals are tried by such a court–particularly, as here, for alleged crimes occurring in the territory of a signatory state. When we try a foreign national in our own courts without the consent of her home country, are we threatening that nation’s “sovereignty”? And what of Nuremberg, Tokyo, the International Criminal Tribunal for the Former Yugoslavia, etc., all of which were U.S. initiatives? Were they violations of German/Japanese/Serbian “sovereignty”? Of course not. (On the related question of whether ICC prosecution of the nationals of nonparties violates international law, Dapo Akande’s treatment (see pp. 620-640) remains essential.)
My focus in this post, however, is on a different aspect of Bolton’s speech — his “new pledge to the American people” that if the ICC “comes after us, Israel or other US allies, we will not sit quietly.” Bolton made a series of threats, ostensibly designed to deter the ICC from moving against, or even investigating, officials from the U.S., Israel and other allies.
Most observers, including several of those linked above, have expressed doubts about whether any of Bolton’s more dramatic threats are likely to come to fruition.
Before we even get to the question whether the U.S. would follow through, however, there’s an important threshold question: Does the President have legal authority to respond to ICC investigations and prosecutions in the ways Bolton has threatened?
Here are a few tentative thoughts on that question, with respect to the four most alarming threats in Bolton’s speech: (i) banning ICC judges and prosecutors, and any company or state that assists an ICC investigation of Americans, from entering the United States; (ii) “sanction[ing] their funds in the U.S. financial system”; (iii) “prosecut[ing] them in the U.S. criminal system”; and (iv) using military force “to shield our service members and the armed forces of our allies from ICC prosecution.”*
1. Bans on U.S. entry
Bolton warned that ICC judges and prosecutors who investigate or prosecute officials from the U.S., Israel and other allies could be barred from entering the United States. He added that “any company or state that assists an ICC investigation of Americans” might suffer the same fate (by which he presumably meant the President might exclude company or state officials).
There isn’t any specific provision of the federal immigration code that would authorize such an exclusion. Unfortunately, however, in the recent “Travel Ban” decision the Supreme Court construed 8 U.S.C. 1182(f) to afford the President virtually unbounded discretion to suspend the entry of any foreign nationals upon a finding that their entry “would be detrimental to the interests of the United States.” Suspending the entry of international court jurists, prosecutors, witnesses, et al., is surely not what Congress had in mind when it enacted that law in 1952. Nevertheless, it appears that President Trump could impose such an exclusion if he had the gall to make a finding, however implausible, that their presence in the U.S. would be detrimental to U.S. national interests.
I’m not sure such an exclusionary order would have much of a practical impact on the persons in question, because they could be fairly confident that the prohibition would, at most, last only as long as Trump is President.
There is, however, at least one application of such a ban that might be much more legally problematic: As Dapo Akande notes, certain ICC officials regularly appear at the United Nations Headquarters in New York. The ICC Prosecutor, for instance, reports to the Security Council on situations the Council refers to the Court, and the ICC President presents an annual report to the U.N. General Assembly. Could Trump ban those officials from entering the United States even for the limited purpose of making such appearances at the U.N.? [The answer to this discrete question is a bit technical. Therefore if you’re not interested in it, you might want to skip forward to discussion of the other Bolton threats, in Points 2-4 below.]
A presidential exclusion of ICC officials and others that had the effect of preventing them from appearing as invited before the United Nations would, at least on first glance, appear to be a breach of Section 11 of the 1947 Headquarters Agreement between the UN and the United States, a treaty that the 1947 Congress authorized the President to bring into effect on behalf of the United States. (That is to say, it’s a treaty for international law purposes, and a “congressional/executive agreement” under U.S. domestic law.) Section 11 of the Agreement provides that:
The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of: . . . persons invited to the headquarters district by the United Nations . . . on official business. The appropriate American authorities shall afford any necessary protection to such persons while in transit to or from the headquarters district.
Section 13(a) backstops that prohibition by providing expressly that U.S. immigration restrictions must give way to the obligation contained in Section 11: “Laws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11.”
Congress’s broad delegation to the President in section 1182(f) to exclude foreign nationals should not be read to abrogate or supersede the U.S.’s obligations under the Headquarters Agreement. See U.S. v. PLO, 695 F. Supp. 1456, 1464-65 (SDNY 1988). And the language of Section 11 would appear to require even generally excluded foreigners to be permitted to enter the United States for the discrete and limited purpose of engaging in “official business” at the U.N.
As Dapo Akande explains, however, the U.S. Executive Branch has long construed the Headquarters Agreement to contain a de facto “national security” exception, based upon Section 6 of the law (Pub. L. 80-357) by which Congress approved the Agreement. Section 6 provides that:
Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the headquarters district and its immediate vicinity … and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries.
Dapo is right, I think, about a couple of things: First, it is probably fair to say that the U.N. accepted this so-called reservation. The Agreement was brought into force by an exchange of notes between the UN Secretary-General and the U.S. representative, and the U.S. note of November 21, 1947 specifically specified that “the United States of America is prepared to apply the above-mentioned Headquarters Agreement subject to the provisions of Public Law 357.”
However–and this is the second major point that Dapo stresses–the U.S. and the U.N. have had very different views about how to construe the Section 6 reservation. As Dapo explains in far greater detail, the U.N. has long understood Section 6 as a whole to permit exclusion of foreign nationals only into parts of the U.S. other than the Headquarters District and its immediate vicinity “and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries.” (As Michael Reisman explains, the U.N. also has acknowledged the possibility that if there were clear evidence that the person in question intended to use the trip to New York itself for activities against the host state’s security, the Headquarters Agreement would not protect him in the first instance.)
The U.S., by contrast, has long argued that the portion of Section 6 in boldface above carves out a distinct “safeguard its own security” limitation that applies everywhere within the U.S., including in the Headquarters District in New York.
In 1953, when the U.S. refused visas to members of NGOs who had been invited to take part in meetings of the Economic and Social Commission, the Executive Branch expressed the view that such exclusion from the Headquarters District of those invited to appear before the U.N. had to be “limited by the strict requirements of national security,” and only under such terms and conditions as the Attorney General “may deem to be necessary to safeguard the security of the United States” after “careful and meticulous” consideration by “the top-ranking officers of the Government.”
By the 1980’s however, the U.S. view of the scope of Section 6 had expanded, so as to allow the categorical exclusion from the Headquarters District of persons responsible for past terrorist acts outside the United States–such as President Reagan’s exclusion throughout his presidency of Iranian officials who had been involved in the capture of the U.S. embassy in Teheran in 1979, and his November 1988 denial of a visa to Yasser Arafat, who had been invited to address the UN General Assembly–even absent any evidence that their trip to New York itself might pose a national security threat. As the State Department wrote in connection with the Arafat exclusion, “[t]he Headquarters Agreement, contained in Public Law 80-357, reserves to us the right to bar the entry of those who represent a threat to our security,” apparently without regard to whether or not the person’s presence in New York presents such a threat.
It may well be the case, as Professor Reisman argued, that this expansive reading of Section 6 is untenable–particularly if Dapo is correct that such a “reservation” is best construed based upon “the common intention of the parties” rather than “the intention of the state that proposes the variation,” for the United Nations itself certainly has never accepted the U.S. reading. Nevertheless, the important point for present purposes (i.e., assessing what President Trump might do) is that it presumably remains the view of the U.S. Executive Branch.
Even so, it’s one thing to say that Section 6 allows the exclusion from the Headquarters District of persons who have committed terrorist acts against U.S. persons, and quite another for a President to conclude that international court judges and prosecutors represent an analogous security threat. Yet that appears to be the Trump Administration view: In his speech, Bolton asserted that “the International Criminal Court unacceptably threatens American sovereignty and U.S. national security interests.”
It might be an absurdly aggressive reading of Section 6 to say that Trump may exclude such officials from the Headquarters District. Moreover, career officials at the State Department know all-too-well that there would be significant blowback at the U.N., to say the least, if the U.S. were to prohibit ICC officials and others from appearing at the U.N., and such State officials would likely interject strong objections to such a move. Given this Administration’s disregard for diplomatic ramifications and historical norms, however, it’s not completely out of the realm of possibility that Trump might take such a radical step. (Once again, however, I think that if Trump does so, the exclusion is very unlikely to persist beyond his presidency.)
2. “Freezing” Assets
Bolton announced that “if the [ICC] comes after us, Israel or other US allies … we will sanction [the judges and prosecutors’] funds in the US financial system,” and “we will do the same for any company or state that assists an ICC investigation of Americans.”
Presumably this threat is predicated on a possible use by the President of the International Emergency Economic Powers Act (IEEPA), enacted in 1977 and codified at 50 U.S.C. § 1701 et seq. IEEPA confers upon the President very broad powers to respond to any threat to the national security, foreign policy or economy of the United States that is “unusual and extraordinary” and that “has its source in whole or substantial part outside the United States.” 50 U.S.C. § 1701(a).
If, and only if, the President declares a national emergency with respect to such a threat, 50 U.S.C. § 1701(a), IEEPA would then afford him the power to “investigate, regulate, or prohibit” various commercial activities, including: [i] “any transactions in foreign exchange,” [ii] “transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,” and [iii] “the importing or exporting of currency or securities, by any person, or with respect to any property, subject to the jurisdiction of the United States….” Id. § 1702(a)(1)(A).
Most importantly, IEEPA would also empower the President, upon his declaration of a national emergency with respect to an “unusual and extraordinary threat,” to block transactions involving property “in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States….” Id. § 1702(a)(1)(B). [The statutory language is very comprehensive: The President may “regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving,” such property, “by any person, or with respect to any property, subject to the jurisdiction of the United States.”]
In November 1979, for example, President Carter declared a national emergency to deal with the “unusual and extraordinary threat to the national security, foreign policy and economy of the United States” caused by the Iranian capture of the U.S. embassy in Teheran, and ordered “blocked all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to the jurisdiction of the United States or which are in or come within the possession or control of persons subject to the jurisdiction of the United States.” This had the effect of “freezing” all assets located in the United States, or in the possession of persons subject to United States jurisdiction, in which the government of Iran or any of its instrumentalities had any interest. The freeze had an extraterritorial aspect, too, in that it not only purported to reach Iranian deposits held in banks located in the United States, but also Iranian deposits held in the overseas branches of United States banks.
Could President Trump effect a similar “freeze” with respect to the assets of ICC officials by declaring that an ICC investigation and/or prosecution creates an “unusual and extraordinary threat to the national security, foreign policy and economy of the United States” amounting to a “national emergency”?
Well, as one former official with IEEPA experience said to me, it would be “quite remarkable” for the President to treat the ICC prosecutor and judges the same way that the U.S. treats, for example, terrorists, Iran, North Korea, Venezuela and Russia–“a massive category shift that would potentially threaten the credibility of the USG use of IEEPA authority in other contexts.” It might well, in other words, be an abuse of the authorities that IEEPA confers, because an “emergency” finding would be so implausible.
Nevertheless, as with the statutory authority that Congress conferred on the President to exclude foreigners from the United States (discussed above), Congress wrote IEEPA in very broad terms, and there is reason to think the Supreme Court would be wary about second-guessing a presidential finding under IEEPA, just as it bent over backward to defer to Trump’s implausible findings in the Travel Ban case. Therefore presidential action to freeze the assets of ICC officials is, alas, not out of the question, even though it would probably be an abuse of the President’ IEEPA authority.
3. Criminal prosecution
Perhaps the most startling thing in Bolton’s speech was his threat that “we will prosecute” ICC officials “if the [ICC] comes after us, Israel or other US allies” and “will do the same for any company or state that assists an ICC investigation of Americans.”
For the life of me, I can’t see what Bolton was talking about here (and I haven’t been able to find anyone else who has the foggiest idea, either). Absent some absurd, hypothetical deviations from standard practice, an ICC investigation and prosecution would not violate any U.S. laws, let alone constitute criminal offenses. Nor would assistance by others to the ICC investigation.** (If readers have any ideas about criminal offenses I might be overlooking, please let me know.)
I would, therefore, be surprised if this particular threat emerged from the interagency vetting of Bolton’s speech (assuming there was such vetting) without objections from the Departments of Justice and/or State that the envisioned actions of ICC officials would not constitute any criminal offenses under U.S. law. If Trump and Bolton ignored such objections , that’d be a distinct process defect–albeit not a very surprising or unusual deviation given what we know about how this Administration operates. (To be sure, Bolton’s threats are prefaced by a general statement that the U.S. “will respond against the ICC and its personnel to the extent permitted by US law.” If, however, the “extent permitted by US law” is virtually a null set, as appears to the case respecting the threat to prosecute, there was no justification for including that particular, misleading threat in the speech.)
4. The Use of Military Force
Finally, earlier in his speech Bolton said that “[t]o protect American service members from the ICC, in 2002 Congress passed the American Service-Members’ Protection Act, or ASPA, which some have branded ‘The Hague Invasion Act.’ This law, which enjoyed broad bipartisan support, authorizes the president to use all means necessary and appropriate, including force, to shield our service members and the armed forces of our allies from ICC prosecution.”
Seriously? The President is statutorily authorized to use military force to “shield” individuals from ICC prosecution? And Trump might use such force to free ICC prisoners?
Bolton was referring to 22 U.S.C. 7427(a), which authorizes the President “to use all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” Contrary to Bolton’s suggestion, however, Section 7427 does not refer to “force”–in conspicuous contrast with the contemporaneous 2001 (al Qaeda) and 2002 (Iraq) Authorizations for Use of Military Force, in both of which Congress expressly confers authority on the President to use “necessary and appropriate force.” Nor is military force analogous to the specific sorts of assistance identified in Section 7427 of ASPA (namely, legal representation of the prisoner, providing “exculpatory evidence on behalf of that person,” and appearing before the ICC to defend the interests of the United States).
To be sure, some observers have referred to this provision–always cheekily and derisively, until Bolton–as the “Hague Invasion Act.” It’s also true that some Democratic opponents of the provision in the Senate in 2001-02 appear to have assumed that it would authorize the use of force, which is one reason they opposed it (see Sens. Leahy and Levin on 12/07/01 and Sen. Byrd on 06/06/02).
Even so, absent further compelling evidence (I haven’t researched the entire legislative history), I think it would be unreasonable, if not absurd, to read the ASPA provision in question to authorize the use of force in another (nonconsenting) nation such as the Netherlands. After all, such a use of force would almost certainly breach the U.S.’s obligations under Article 2(4) of the U.N. Charter, as well as customary law norms of sovereignty, and the Charming Betsy canon provides that “an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains”(Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804)), and, in particular, that ambiguous statutes must be construed, if possible, “to avoid unreasonable interference with the sovereign authority of other nations” (F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004)).
For these reasons, among others, military force would not be an “appropriate” “means . . . to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court,” and therefore is not authorized by Section 7427 of ASPA, just as detention in violation of international law is not “appropriate force” authorized by the 2001 AUMF (see my account with Steve Vladeck of that issue here, discussing, inter alia, Hamdi v. Rumsfeld and Judge Kavanaugh’s mistaken counterargument in al-Bihani that Congress has authorized detention that violates international law).
I realize it has become commonplace in some quarters to assume that in the ASPA Congress authorized the President to, well, initiate an armed conflict with the Dutch in order to free prisoners from ICC custody (see, e.g., Philip Gourevitch here and John Bellinger here). I doubt, however, that such a reading would be reasonable or, more to the point, that the United States would ever formally construe the ASPA to confer such authority. (Once again, therefore, I wonder whether there were any legal objections to this particular sentence during the interagency scrub of Bolton’s speech.)
That is to say, in this particular respect the ICC should have nothing to fear from Bolton’s bombast: If and when the court detains any defendants, not even Donald Trump would send in the U.S. military to Holland to fight for their “release.” (Would he?)
* Bolton also threatened some less controversial steps that I assume the President has authority to take:
We will negotiate even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC. And we will ensure that those we have already entered are honoured by our counterpart governments. . . .We will take note if any countries cooperate with ICC investigations of the United States and its allies, and we will remember that cooperation when setting US foreign assistance, military assistance, and intelligence sharing levels.We will consider taking steps in the UN Security Council to constrain the court’s sweeping powers, including ensuring that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute.
** The only thing I can (very generously) imagine is that perhaps Bolton was thinking about the criminal provision of IEEPA itself, 50 U.S.C. 1705(a) & (c), which establishes criminal penalties for “willfully” violating an IEEPA order or prohibition. Such orders, however, typically regulate the conduct of persons (including banks) doing business with the foreign parties who create the “unusual and extraordinary threat,” not the parties themselves. And, in any event, Bolton’s plain implication was that the U.S. would prosecute ICC officials for engaging in investigations and prosecutions–not for violating some future, hypothetical asset-freezes under IEEPA.