As a personal crusade, John Bolton’s frontal attack on the International Criminal Court (ICC) is not surprising. He led the charge against the ICC early in the George W. Bush administration, until President Bush later decided that the ICC offered the best prospect of justice for atrocity victims in Darfur, Sudan, where the administration determined genocide was committed. It is also, sadly, not surprising that the Trump administration would adopt such a hostile policy toward the ICC or threaten such extreme measures against its prosecutors and judges given the pattern of assault on international institutions and bullying of U.S. prosecutors, judges and others that has marked this president’s time in office.
Yet in claiming that the new Trump ICC policy “put[s] the interests of the American people FIRST” – including the brave men and women who serve in our armed forces – Bolton’s shrill declaration of war against the ICC profoundly misses the mark in at least five key respects.
First, his broad-side attack rests on an unduly narrow conception of the interests of the United States and the American people. The U.S. has a deep and longstanding stake in justice and accountability for mass atrocity crimes and a legacy of supporting tribunals to bring perpetrators to account. After World War II, American leadership was crucial in establishing the Nuremberg Tribunal – where U.S. Supreme Court Justice Robert Jackson served as chief prosecutor in bringing Nazi leaders to justice for their horrific crimes, including the extermination of six million Jews. The U.S. also led in establishing the Tokyo Tribunal, and helped to build the vital framework of international humanitarian law, including the Geneva Conventions, to protect civilians from harm and to protect combatants from unnecessary suffering. After the Cold War, U.S. support was vital in the U.N. Security Council’s creation of the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) to hold perpetrators of genocide, crimes against humanity, and war crimes to account. Democratic and Republican administrations alike over the last two decades have supported the creation of numerous hybrid courts that combine international and national judges and lawyers and are generally located in the societies that endured atrocities, including in Cambodia, Sierra Leone and elsewhere. Many talented U.S. prosecutors and judges have served at these tribunals, like Justice Jackson before them.
This work over decades and across administrations reflects a bipartisan appreciation of the strong U.S. interests in seeking justice and accountability for mass atrocity crimes – crimes such as genocide, forced recruitment and use of child soldiers, and mass rape. Accountability for such crimes, as I discuss more fully here, helps to bring a measure of justice to victims, advance security, build effective and legitimate coalitions with allies and partners, and strengthen prospects for preventing future atrocities – all very much in the U.S. national interest.
In Bolton’s account, however, we hear about none of this. Instead, in Bolton’s version of history, the ICC seems to appear out of thin air as a plot “by self-styled ‘global governance’ advocates” to “constrain the United States” and “target” its “senior political leadership.” Nowhere in his story does the long history of U.S. contributions to international justice appear. Never mentioned is the work of U.S. lawyers and diplomats to build an international criminal court from the beginning — and to ensure that the ICC is based on the primacy of national accountability for the most egregious atrocity crimes. Also invisible from his narrative is the vital work of American military lawyers in carefully negotiating the ICC elements of crimes.
Second, Bolton overlooks rational and more effective ways to navigate the current U.S. challenges with the ICC. The possibility of an ICC investigation concerning conduct in Afghanistan – a state party to the ICC – has been on the horizon for some time. Moreover, successive U.S. administrations – both Republican and Democratic – have made very clear their policy to protect U.S. personnel from exposure to the ICC’s potential exercise of jurisdiction. Because the U.S. is not a party to the ICC, it has no legal obligations to cooperate in any such investigation, and indeed is restricted by statute from doing so. And it is extremely unlikely that the ICC could make any headway without U.S. cooperation, as Alex Whiting discusses here.
Instead of blasting the ICC across the board (and undercutting its work in countries that welcome its efforts), the U.S. should be more transparent and forthcoming– first and foremost with the American people – about what steps it has taken domestically to come to terms with the post-9/11 mistreatment and torture of detainees documented in the U.S. Senate Select Committee on Intelligence Report (conduct opposed by many U.S. military officers and civilian officials at the time). The American people deserve to know more about what has been done domestically to advance accountability and what more could realistically be done. Furthermore, as I have argued earlier, the Trump administration should explicitly affirm – as Defense Secretary Jim Mattis has done – that it unequivocally opposes torture, and that it will abide by U.S. treaty and statutory obligations against torture. These steps would help to reinforce that the U.S. system has self-corrected. Moreover, national jurisdiction rightly has primacy under the ICC statute, so domestic steps to clearly demonstrate that the U.S. takes seriously the fact that crimes were committed strengthen U.S. complementarity arguments. Such steps also encourage an ICC prosecutorial focus on grave, ongoing Taliban crimes in Afghanistan as a matter of prioritization under the prosecutor’s own policy.
The Trump administration should take a lesson from President Barack Obama and his team, who managed to protect U.S. interests effectively in negotiations at Kampala, ensuring that the “crime of aggression” would not apply to non-parties to the ICC. By engaging adroitly, rather than boycotting or declaring war on the ICC, the U.S. secured the very protections that Bolton fails to even mention in his speech.
Third, hurling a “wrecking ball” at the ICC undermines crucial efforts to strengthen legal accountability in domestic courts in many countries emerging from conflict – the very processes Bolton claims to support. Bolton barely mentioned the victims of atrocity crimes in his speech, but when he did he indicated that “perpetrators should face legitimate, effective, and accountable prosecution for their crimes, by sovereign national governments.” This is exactly what the ICC aims to encourage by affirming the primacy of national jurisdiction. The ICC’s complementarity principle is designed to foster and reinforce meaningful domestic justice for atrocity crimes. Thus in a number of countries – including Guinea and the Central African Republic – the ICC is working to actively encourage and even assist domestic accountability efforts. So too, in Colombia, where the ICC’s ongoing preliminary examination helped encourage inclusion of justice provisions in the Colombian peace agreement, with the implementation of that agreement still very much a work in progress. At the domestic level, the ICC has also helped empower civil society advocates for justice as they press their own governments for better accountability. These efforts are consistent with longstanding U.S. support for civil society human rights defenders under Republican and Democratic administrations alike. The ICC should be encouraged in its efforts to catalyze domestic accountability, rather than undercut by a broad-side assault on its work and credibility that fails to take into account these important efforts or the strong support the Court enjoys among victims and advocates for justice in countries around the world.
Fourth, Bolton ignores the ways in which the ICC, together with national and hybrid courts, are gradually building a track record that, over time, can help contribute to better deterrence and prevention. Bolton claimed that the only meaningful deterrent to egregious atrocities by brutal leaders is the use of force by the United States and its allies. Sometimes that may well be the case. But, as I discuss more fully here, both anecdotal and empirical evidence suggests that some people are only alive today, including in the Central African Republic, because of the prospect of accountability before the ICC. Bolton’s critique of the ICC as having a “dismal” deterrent impact in places like Sudan and Syria is particularly off point – the very U.N. Security Council that referred the situation in Darfur to the ICC has persistently failed to respond to the ICC Prosecutor’s repeated pleas to support her work in this situation, and the Security Council (with vetoes by Russia and China) has failed to refer the Syria situation to the ICC. To be sure, the ICC is a very imperfect institution, with many limitations and challenges. But it should not be blamed for the failures that stem from lack of support for its work or matters outside its jurisdiction.
The prospects for effective prevention of atrocities clearly will vary enormously depending on the nature of the conflict, the armed groups involved, and the likelihood of any real accountability. Undoubtedly much long-term work and training is needed on the ground in many parts of the world to make sure commanders and their forces in conflict situations are both fully aware of the rules of international humanitarian law and more credibly accountable for their violations, including the prohibitions against the forced recruitment and use of child soldiers, and against rape and other egregious attacks against the civilian population. Prosecutions and convictions for such offenses, particularly if well publicized, can at least begin to chip away at impunity and send a message to others that they too may someday face justice. Working to build stronger accountability for mass atrocities – in national courts when possible, in hybrid courts, and before the ICC – together can reinforce the fundamental prohibitions against atrocity crimes and bolster prospects for their prevention.
Fifth, and finally, the American people deserve a more thoughtful and enlightened policy than Bolton’s tirade. As a professor of constitutional law, I too take great pride in our Constitution and its system of separation of powers, federalism, guarantees of equal protection, protection of individual liberty, free speech and freedom of religion, and independent judiciary. I also take pride in the impressive military JAG officers who have been my students over the years, and who have been the most persuasive defenders of the law of armed conflict and its vital role in enhancing the safety of U.S. armed forces, reinforcing their legitimacy, and building effective coalitions with allies and partners to keep our country safe. We owe these and so many other courageous Americans a more thoughtful, effective and enlightened response to the current U.S. challenges with the ICC. We can protect U.S. personnel and U.S. interests effectively without assaulting and undercutting the possibilities for justice for victims of egregious atrocities that the ICC can offer, or its work in catalyzing meaningful accountability at the national level – the primary and most important foundation for justice and the rule of law.