In his first major policy speech, on 10 September, US National Security Adviser John Bolton threatened sweeping retaliation against judges and prosecutors of the International Criminal Court, as it assesses whether to open an investigation of war crimes in Afghanistan. Since last November, a panel of the court has been weighing approval of the chief prosecutor’s request to investigate all alleged atrocities in the country. These would include allegations of torture committed by the US military or CIA in Afghanistan or Eastern European black sites from 2002 to 2004.
The ‘ICC is already dead to us,’ Bolton declared in his recent speech. He has been consistent in his vehement opposition to the Court. Before taking office, he urged the US to welcome the Afghan case as a chance ‘to strangle the ICC in its cradle.’
Harvard law professor Alex Whiting says Bolton is following through on both of his violently-expressed strategies. America is returning to its ICC ostracism policy of the early 2000s. And, for the first time, it’s embracing an ‘actively aggressive policy to destroy the court,’ or ‘strangle the baby.’
Controversy has centered on the threat to target individual judges or prosecutors in The Hague with the full force of US economic sanctions and US criminal law. ‘To be threatening judges and prosecutors around the world, whether they're ICC judges or any other judges, is a threat to an independent judiciary and the Rule of Law,’ says John Bellinger, who served as State Department Legal Adviser during the second term of President George W. Bush.
John Bolton, US National Security Adviser
Furthermore, experts question the legal basis for these steps. ‘To actually have the President sign an executive order declaring a “national emergency” as the basis for freezing the assets of the ICC judges and prosecutors would be a real stretch’ under the International Economic Emergency Powers Act, says Bellinger. And the Treasury Department historically opposes stretching IEEPA for fear of losing it as a tool.
‘That alone sounds awfully strange,’ continued Bellinger. ‘It is unimaginable to me that a US federal prosecutor would bring a criminal action against an ICC judge or prosecutor. I just cannot imagine that happening…. They would simply say there is not a basis for it.’
When pressed, Bellinger says he could perhaps imagine Congress trying to authorize such a move in an update to the American Service-Members Protection Act of 2002. But David Scheffer, who served as America’s first Ambassador-at-large for War Crimes Issues, says any such legislation would be bizarre and unconstitutional.
Perhaps Bolton’s most realistic threat is for America to pressure other countries to cut off support, Whiting says. ‘Individual targeting is alarming and disturbing,’ he said. ‘but at the end of the day it’s not going to damage the institution. Starving the court of funds will.’
Scheffer trusts the rest of the world to keep faith with international justice. ‘I don't really see the Trump administration wielding enormous influence particularly with our European and Latin American friends,’ he says. ‘I'm not aware of too many governments that sit back and say we will consider the American point of view about the ICC.’
While Whiting has no fear the court will be abandoned, he doubts that its friends will defend it robustly, or expend diplomatic capital to strengthen it. Even the rhetorical response to Bolton has been tepid, he laments. The world has its hands full with other American diplomatic crises, and the ICC is now seen as a flawed institution.
“To be threatening judges and prosecutors around the world, whether they're ICC judges or any other judges, is a threat to an independent judiciary and the Rule of Law
Senior legal adviser to the administration of President George W. Bush
In the meantime, the court has a decision to make on Afghanistan. Whiting, who oversaw ICC investigations and prosecutions from 2010 to 2013, believes the panel is ‘absolutely’ compelled to open an Afghanistan investigation under applicable standards. Whiting has long urged the tribunal to avoid conflict with the US, for the sake of international justice, by prioritising the tens of thousands of Taliban and Afghan military claims over the 88 claims of US torture or inhuman treatment, in recognition of their relative ‘gravity’ under ICC law. He stands by this, but fears Bolton's bullying pose ‘has made it difficult for the court to do anything but move forward with the [US] investigation, and maybe has made it even difficult for the prosecutor to quietly deprioritise it.’
Whether Bolton would be appeased if the court quietly deprioritizes the US portion of the case is unclear. ‘For any other administration that might be enough,’ says Bellinger. ‘My sense is that is not enough for John Bolton…. He relishes this opportunity.’
A safer course, says Bellinger, would be to sever the US claims and send them back to the prosecutor with more questions. ‘It would be extremely imprudent of the court to move forward with a US investigation, argues Bellinger. ‘Rather than look short term at how the judges are going to appear, they need to look long term at the viability of the court and international criminal justice.’
Scheffer wouldn’t be surprised if the judges on the panel (from Japan, Italy, and the Democratic Republic of the Congo) remand the US portion of the case for more questions to determine their gravity. But he stresses that this would be a legitimate application of their judicial standards rather than a retreat: ‘I do not see these judges as being cowed.’
Former NATO commander Wesley Clark suggests that the prosecutor invoke her discretion not to proceed in the interests of justice, and the US convene a Truth Commission.
Whiting says ‘the best of a lot of bad options’ might be for the court to keep sitting on the case, conceivably until President Trump leaves office.