[On 10 September 2018 US National Security Advisor John Bolton gave an address at the conservative Federalist Society in Washington, DC, in which he denounced the International Criminal Court as “illegitimate” and announced measures the Trump administration will pursue to ensure it is unable to operate, particularly with respect to eventual prosecutions of US, Israeli, or other allied officials. Jadaliyya interviewed Co-Editor Lisa Hajjar to get a better understanding of Bolton’s agenda and objectives]:
Jadaliyya (J): What was the motivation behind US National Security Adviser John Bolton's latest speech regarding the International Criminal Court (ICC), and what specific measures did he announce?
Lisa Hajjar (LH): Bolton’s hyperbolic, hyper-sovereigntist speech was the perfect articulation of his hostile position on international law and multilateralism. He has been banging this drum since the 1990s when, following the end of the Cold War, international law enforcement for gross crimes—genocide, war crimes, crimes against humanity, and torture—became a possibility with the establishment of, first, UN ad hoc tribunals to prosecute individuals from the former Yugoslavia (1993) and Rwanda (1994), and then in 1998 the negotiations that led to the Rome Treaty establishing the ICC. That same year, former Chilean dictator Augusto Pinochet was arrested in London on a Spanish warrant that revitalized and revamped the moribund international criminal law doctrine of universal jurisdiction. The British House of Lords ruled, in 1999, that Pinochet was prosecutable and thus extraditable to Spain for the crime of torture (a fate he was able to avoid for political reasons). Bolton’s most recent address has a significantly greater resonance because he is ensconced in a top cabinet position within a US administration even more hostile to international law than any that has come before it.
Although Bolton’s speech, which he described as “a major announcement on US policy toward the . . . ICC,” was rife with inaccuracies about the court’s powers, operations, and jurisdiction, it was nevertheless highly polished and sophisticated; indeed it was a brilliant reflection of the “realist” ideological position on international law that prevails among right-wing thinkers in the United States like his host, the Federalist Society.
The ostensible and immediate motivation for Bolton’s speech originates in a 3 November 2017 request by ICC Chief Prosecutor Fatou Bensouda for authorization to commence an investigation into war crimes and crimes against humanity in Afghanistan that would focus on US military personnel and CIA operatives, as well as Taliban and Afghan officials. This investigation would include torture, ill-treatment, and CIA black sites. Bensouda’s preliminary investigation had been completed in November 2016 and found that the alleged crimes “were not the abuses of a few isolated individuals,” but rather were “part of approved interrogation techniques in an attempt to extract ‘actionable intelligence’ from detainees,” adding that there was “reason to believe” that crimes were “committed in the furtherance of a policy or policies . . . which would support US objectives in the conflict of Afghanistan.” Bensouda’s request may be authorized by the ICC’s pre-trial chamber in the coming days. Bolton acknowledges this: “Any day now, the ICC may announce the start of a formal investigation against these 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.”
Had Bolton been in a policy leadership position to make this speech years ago, he would have. The essence of the speech, like his long-held views, is that international law is—or would be, if it were more effective—a stalking horse to constrain US behavior abroad, and any such legal constraint is anathema to realists. This hostility to international law and the post-Cold War development of enforcement mechanisms is rationalized by Bolton and like-minded realists such as Henry Kissinger as inimical to state sovereignty in general and “constituted an assault on the constitutional rights of the American people and the sovereignty of the United States” in particular. In this vein, Bolton describes the Rome Treaty as “fundamentally illegitimate”—despite the fact that the US government (during the Clinton administration) was an active participant in its negotiation.
Bolton offers a smooth blend of fear-mongering and “alternative facts” about the ICC:
In no uncertain terms, the ICC was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent . . . It claims "automatic jurisdiction," meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty. Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in the room today, are purportedly subject to the court's prosecution should a party to the Rome Statute or the chief prosecutor suspect you of committing a crime within a state or territory that has joined the treaty . . . I ask everyone in the room today: would you consign the fate of American citizens to a committee of other nations, including Venezuela and the Democratic Republic of the Congo, and entities that are not even states, like the Palestinian Authority? You would not. I would not. And this Administration will not.
Bolton does not mention torture and forced disappearance, which are the crimes a prospective ICC investigation would pursue—crimes of which the US government is guilty and whose intellectual authors have remained entirely unaccountable. On this point, Bolton openly lies when he states that “the United States takes appropriate and swift action to hold perpetrators accountable.”
Rather, Bolton concentrates his harangue on “the crime of aggression.” This crime is, indeed, an element of the Rome Statute and is, as he notes, subject to wide ranging interpretation. However, he uses this straw man to make an ideological appeal by linking it to two issues that enjoy substantial consensus in the United States: the justness of the operation in which al-Qa’ida leader Osama bin Laden was killed, and the sovereign prerogative of Israel to use whatever force it deems necessary to protect its security and citizenry.
US governmental and bi-partisan political support for Israel provides the other main motivation for the Bolton speech and concurrent decision by the Trump administration to close the Palestine Liberation Office (PLO) in Washington. Bolton is exorcised that “the so-called ‘State of Palestine’” is a party to the ICC and may request an investigation into war crimes in Gaza and other Israeli violations of international humanitarian law. Bolton states: “If the court comes after us, Israel or other US allies, we will not sit quietly.”
Among the various policy positions Bolton lists as US responses to the “illegitimate” ICC, the most disquieting and absurd is this:
We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and, we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.
As Alex Whiting, an editor at Just Security, remarks: “The reality is that there appears to be no domestic legal authority 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.”
J: What is the significance of the current US position regarding the ICC and how does it differ from the position of previous administrations?
LH: Over the last twenty-five years, there have been some variations within a more general and consistent posture of animus toward international criminal law. The Clinton administration endorsed the establishment of the UN ad hoc tribunals because their jurisdiction was specific to crimes committed in the former Yugoslavia and Rwanda, and therefore would not pose any threat to Americans. US representatives involved in negotiating the Rome Treaty insisted on the inclusion of certain measures, notably granting substantial discretion to the UN Security Council—where the United States enjoys veto power—that would minimize if not altogether prevent any prospect that someday an American might find him or herself in the ICC dock. In his last hours in office, President Bill Clinton signed the Rome Treaty but urged that it not be ratified by the Senate.
In May 2002, two months before the ICC came into existence, George W. Bush un-signed the treaty, a move which Bolton praises and claims some responsibility for. Over the following years, the Bush administration pressured dozens of countries to sign bilateral treaties in which foreign states pledged not to cooperate with the court or turn over an American to its jurisdiction, another move in which Bolton played a leading role. He states: “It remains one of my proudest achievements” and in his latest address announced that the Trump administration plans to revive and expand the pursuit of bilateral treaties to escalate the project of destroying the court. However, in 2005, the US position softened a bit when the government assented to the UN Security Council’s referral of Sudanese president Omar al-Bashir to the court for alleged atrocities in Darfur.
The Obama administration did not seek to undermine the ICC, like its predecessor, but did nothing to undo the un-signing. Therefore, Obama, like Bush and Clinton, helped pave the path for the Trump administration to assail the court and seek its destruction. As Bolton remarks: “We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.”
J: Should we see this as bluster and rhetoric, or do you expect it to have meaningful consequences for the functioning of the ICC?
LH: We should see this as both. Blustering rhetoric is the Trump administration’s modus operandi and an accurate reflection of its policy agenda. This will include exercising Security Council power to undermine the ICC, and pressuring or punishing foreign governments that cooperate with the court. In Bolton’s words, “we will remember that cooperation when setting US foreign assistance, military assistance, and intelligence sharing levels.”
J: How do you expect the ICC and other states that continue to support the ICC to respond?
LH: Bolton’s speech was laced with snarky comments deriding the “self-styled ‘global governance’ advocates” and “ICC proponents” who support international law enforcement and accountability for gross crimes. These would include all governments within the European Union and all NATO members except Turkey, which are signatories to the ICC. However, given the multiple ways in which the Trump administration is laying waste to relations with allied governments and undermining international treaties of various sorts, countering US assaults on the ICC may be a low priority for its signatories.