International Criminal Court Mulls U.S. Troop Prosecutions, Triggering U.S. Withdrawal

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National Security Adviser John Bolton announced on Monday the United States will withdraw all support from the International Criminal Court.

Bolton said the ICC is “antithetical to our nation’s ideals” and accused it of pursuing an “unjust prosecution” of American service members in Afghanistan.

The Trump administration signaled on Sunday that Bolton would announce action against the ICC over its stated desire to investigate allegations of misconduct against U.S. troops and CIA operatives in Afghanistan. The possibility of retaliatory sanctions against ICC prosecutors was floated.

The administration also warned the ICC against launching politically motivated investigations of Israel, as Palestinian officials have been pressuring it to do, especially after President Trump announced the U.S. embassy to Israel would move to Jerusalem. Israel, like the United States, is not a signatory to the ICC charter.

The allegations involved secret detention facilities in Afghanistan and other nations allied with the United States. Although the U.S. never signed the treaty empowering the International Criminal Court, some of the other nations accused of running Afghanistan-related secret prisons did.

ICC Prosecutor Fatou Bensouda acknowledged in November 2017 that no third party formally requested an investigation in Afghanistan. She said she made the decision on her own:

For decades, the people of Afghanistan have endured the scourge of armed conflict. Following a meticulous preliminary examination of the situation, I have come to the conclusion that all legal criteria required under the Rome Statute to commence an investigation have been met. In due course, I will file my request for judicial authorization to open an investigation, submitting that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed in connection with the armed conflict in Afghanistan.

Bolton did not clearly specify why the Trump administration decided to withdraw support from the ICC today. The closest he came to explaining the timing was: “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.”

The New York Times saw Bolton as perfectly positioned to deliver the U.S. rebuke to the ICC, since he has been an outspoken critic of the court since the George W. Bush administration:

The United States declined to join the court during Mr. Bush’s first term, when Mr. Bolton was an undersecretary of state and later ambassador to the United Nations. After he left the Bush administration, the White House showed a little less resistance to the court’s work, even expressing support for its investigation of atrocities in Darfur.

Under President Barack Obama, the United States began helping the court in investigations and shifted to a policy of “positive engagement,” according to Harold Koh, then the State Department’s legal adviser.

Still, the United States never joined the court. And with Mr. Bolton back in power, the White House has swung back to the language of 2002 and 2003. In his speech, he made familiar arguments against the court, saying that it infringed on American sovereignty, had unchecked power, and was “ineffective, unaccountable, and indeed, outright dangerous.”

“The largely unspoken, but always central, aim of its most vigorous supporters was to constrain the United States,” Mr. Bolton said. “The objective was not limited to targeting individual U.S. service members, but rather America’s senior political leadership, and its relentless determination to keep our country secure.”

Bolton announced the end of U.S. support for the ICC in a speech to the Federalist Society billed as his first major address since joining the Trump administration in April. Bolton wasted no time getting down to business, denouncing the International Criminal Court as a threat to national sovereignty that does very little to rein in the world’s worst actors.

Bolton cited the 2002 American Service Members Protection Act, which authorized the president to “use all means necessary and appropriate, including force” to shield U.S. soldiers from ICC prosecution. He noted that neither Afghanistan nor any other party to the ICC’s enabling statute has requested the “utterly unfounded, unjustifiable” investigation of American soldiers contemplated by the ICC prosecutor.

Bolton noted the significance of the date when he dropped the hammer on the Hague:

Today, on the eve of September 11th, I want to deliver a clear and unambiguous message on behalf of the President of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.

We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.

We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.

After explaining the inadequacy of the ICC’s defense mechanisms against prosecutorial abuse and its incompatibility with the legal protections afforded American citizens, Bolton poignantly asked his Federalist Society audience: “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,” he declared.

Bolton would not be surprised to learn that his speech was immediately attacked by defenders of the ICC, such as Amnesty International:

The UK Guardian, boiling with outrage over Bolton’s speech, quoted ICC architect and former U.S. ambassador-at-large for war crimes David Scheffer: “The double standard set forth in his speech will likely play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law. This was a speech soaked in fear and Bolton sounded the message, once again, that the United States is intimidated by international law and multilateral organizations.”

“I saw not strength but weakness conveyed today by the Trump Administration,” Scheffer said.


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