National Security Adviser John Bolton’s Sept. 10 speech on U.S. policy towards the International Criminal Court (ICC) – prompted by the ICC Pre-Trial Chamber’s impending decision whether to authorize an investigation into Afghanistan, including of alleged crimes by U.S. personnel against detainees – has provoked significant commentary (Heller, Bellinger, Scheffer, Whiting, Trahan, Akande, Stromseth). It has also led to statements of support from some ICC States Parties (including from U.S. allies), the leadership of international institutions (for example, the European Union, the International Residual Mechanism for Criminal Tribunals, and the ICC Assembly of States Parties), and NGOs. Referring expressly to Bolton’s speech, the ICC itself felt compelled to pledge to “continue its independent and impartial work, undeterred.”
But, there is another angle that has so far been missing from the reactions to Bolton: Did his speech cross a legal line? More specifically, did it constitute an offense against the ICC’s administration of justice under the Rome Statute, which established the Court?
One of the most striking passages of the speech was the unveiled threat directed at ICC judges and prosecutors:
If the Court comes after us, Israel or other U.S. allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: … We will respond against the ICC and its personnel to the extent permitted by U.S. law. 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 bellicosity of this and some other passages is extreme, even by Bolton’s standards. Bolton and his boss, President Donald Trump, on whose behalf he spoke, find themselves in the lonely company of Rodrigo Duterte, the president of the Philippines. Duterte also threatened the ICC Prosecutor with an arrest should she travel to his country following her February announcement of a preliminary examination focusing on the crimes allegedly committed in the Philippines since at least July 1, 2016, in the context of the government’s “war on drugs” campaign.
As for Bolton’s threats, several commentators (Whiting, Bellinger, Bosco among others) have expressed doubt that there is a basis in U.S. law to impose an entry ban or individual sanctions on ICC personnel, let alone to prosecute them, for performing their duties. For Dapo Akande, who considered the legality of the proposed travel ban on ICC personnel under international law, the issue is not straightforward, being a matter of interpretation of the UN Headquarters Agreement. David Scheffer referred to the punishments for the judges and prosecutors called for by Bolton “ugly and dangerous.”
But were Bolton’s statements also a violation of law? Article 70(1) of the Rome Statute provides that:
The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: …
(d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties;
(e) Retaliating against an official of the Court on account of duties performed by that or another official…
These offenses are punishable with a term of imprisonment not exceeding five years, or a fine, or both.
Prosecutors at the Court have not hesitated to make use of this provision, and, in fact, more accused have been convicted of Article 70 offenses than of the core crimes, a sign of how much hostility can exist towards the work of the ICC where it is investigating and prosecuting. In one Article 70 case, Jean-Pierre Bemba, a politician and former warlord in the Democratic Republic of the Congo, and four others were convicted by the ICC for suborning perjury of defense witnesses during Bemba’s main case for crimes against humanity and war crimes. Three of the accused in that case were re-sentenced just today in The Hague. In the Kenya situation, three Article 70 arrest warrants remain outstanding.
With regards to Bolton’s statements, it could be argued that his threats to ban ICC personnel from entering the U.S., impose financial sanctions on them, and prosecute them, are covered by Article 70(1)(d) of the ICC Statute. It stands to reason, given the content of the statement, that it could impede, intimidate or corruptly influence ICC judges in relation to their determination of whether to authorize the Prosecutor to investigate in Afghanistan. Similarly, Bolton’s statement could, in theory at least, dissuade the ICC Prosecutor from making progress in the investigation against U.S. service members, should the request be granted by the Pre-Trial Chamber. Similar reasoning applies to Bolton’s promise to act against ICC personnel in the eventuality that “the Court comes after us, Israel or other U.S. allies.” In case the Trump administration walks the walk, in addition to just talking the talk, the proposed measures would likely come within the scope of Article 70(1)(e). They would amount to retaliation against ICC officials on account of performance of their duties in relation to the situation in Afghanistan.
There is no objective requirement under Article 70(1)(d) that the person’s conduct produce the desired effects, namely that a Court official actually becomes impeded, intimidated or corruptly influenced and, as a result, fails to perform his or her duties (properly). The conduct committed for the purpose of forcing or persuading the official to that end is sufficient. As for the subjective elements under Article 70(1), the content and circumstances of the speech make clear that the conduct potentially covered by paragraph (d) was committed intentionally, meaning Bolton wished to impede and intimidate ICC officials and he meant to cause the desired consequences (i.e. that the ICC judges deny the Prosecutor’s request for an investigation into Afghanistan, or that the Prosecutor desist from investigating U.S. armed forces), or Bolton was aware “that it will occur in the ordinary course of events” (Article 30(2) ICC Statute). The specific purpose (forcing or persuading the officials not to perform their duties) can arguably also be established.
This is not to say that the ICC will seek to assert jurisdiction over Bolton for an Article 70 prosecution, or that pursuing such a case would be possible or advisable. The jurisdictional provisions of Part 2 of the Rome Statute, which cover ICC’s core crimes, do not apply to the Article 70 regime. Hence it is arguable that, in principle, the Court has jurisdiction over Article 70 offenses by whomever and wherever they are committed, as long as they encroach upon the integrity of its proceedings.
However, the exercise of jurisdiction under Article 70 is a discretionary matter, which makes the idea of the ICC (and States Parties) pursuing Bolton as good as impossible. Importantly, cooperation with the Court with respect to Article 70 proceedings is governed by domestic law rather than Part 9 of the Statute. So even States Parties have broad leeway to deny cooperation, including requests for surrender and other forms of assistance. Moreover, a functional immunity accrues to Bolton permanently in foreign courts in this connection: He is an agent of a State and gave his speech in the exercise of his official functions as Trump’s national security adviser.
If the ICC were as “unaccountable and, indeed, outright dangerous” as Bolton paints it to be, and so keen on overreaching its powers, Bolton should have known better than to threaten its judges and prosecutors. Fortunately for him, the Article 70 framing of his conduct is only a thought experiment. As matters stand, it is improbable that he would ever have to respond to the charges of offenses against the administration of ICC justice. However, this does not change the fact that his speech last week crossed a line. It transgressed the Rome Statute’s penal provision aimed at protecting the integrity of the ICC judicial process.
Judicial independence and the integrity of adjudication are a cornerstone of the rule of law. So how much credence can U.S. allies and domestic audiences in the U.S. and beyond give to the Trump administration’s assurances that, using Bolton’s words, “We believe in the rule of law, and we uphold it”? This question is critical to keep in mind as the U.S. vs. ICC showdown unfolds, especially if and when the rubicon of judicial authorization to investigate in Afghanistan is crossed.
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