John Bolton, President Donald Trump’s national security adviser, renewed his vendetta against the International Criminal Court. A longtime opponent, Bolton claimed the Trump administration would not offer any assistance to the ICC nor would officials cooperate with the ICC.
The proclamation stemmed from the possibility that the ICC might investigate war crimes by United States military and coalition forces in Afghanistan, as well as crimes committed by the Afghan military and the Taliban.
Bolton threatened to ban the ICC’s “judges and prosecutors from entering the United States,” “sanction their funds in the U.S. financial system,” and “prosecute them in the U.S. criminal system.” Even companies or countries that assist ICC investigations of Americans would face the ire of the administration.
Jamil Dakwar, director of the ACLU’s Human Rights Program, noted this could have implications for investigations into CIA torture at black sites in Lithuania, Romania, and Poland.
“They are sending this threat to anyone, virtually anyone who would be an a position to assist the ICC,” Dakwar said. “Does that include lawyers? Does that include individuals, organizations here in the United States? Lawyers who represented torture victims, including us at the ACLU? Where does that go? What is it that the Trump administration wants to do?”
This is critically important. However, there were several liberals, including notorious #Resistance grifters, who reacted as if Trump was launching an attack on another pillar of justice and the law without acknowledging how the U.S. has never really supported the ICC.
For example, Ed Krassenstein, a liberal huckster on Twitter, declared, “Today, John Bolton essentially open[ed] the door for the U.S. to commit war crimes without being held accountable when he labeled the International Criminal Court as ‘illegitimate’ and threatened them with sanctions. How can anyone be OK with this?”
Amy Siskind, a Democratic Party operative and avid Hillary Clinton supporter who once worked on Wall Street, suggested Trump had “withdrawn” the U.S. from the ICC. But the U.S. is not a signatory of the Rome Statute, which is the treaty that governs the tribunal.
The ICC has over 120 members. China, India, and Indonesia have never become members. Along with the U.S., Israel and Sudan have withdrawn their signatures.
Both Presidents George W. Bush and Barack Obama did not want the U.S. to be a part of the ICC because they feared it might expose “war on terrorism” operations—including torture and extrajudicial killings—to scrutiny.
One of the best expressions of the bipartisan consensus came from Senator John McCain, who said in 2005, “I want us in the ICC, but I’m not satisfied that there are enough safeguards,” and Clinton who contended the U.S. was “more vulnerable to the misuse of an international criminal court because of the international role we play and the resentments that flow from that ubiquitous presence around the world.”
What they both meant is that they would support an ICC that investigated the criminal acts of dictators in the “Third World” or under-developed countries, especially those on the Africa continent, but they would not tolerate this body if it attempted to hold the U.S. accountable for the way it employed terror to prosecute its wars.
In that sense, the only thing different about Bolton’s opposition to the ICC is that he might persuade the Trump administration to use U.S. authority to further neutralize the power of the tribunal. But aside from his zealous attitude, the policy is similar: the U.S. should not have to answer to any international legal body for its actions, especially when pursuing war.
The American Service Members’ Protection Act (ASPA) was passed by Congress and signed into law in August 2002. It ensured U.S. military officials and various government officials would be protected from prosecution by the ICC. ASPA was not repealed under Obama and restricted the extent to which the U.S. government could support the tribunal.
Caitlin Lambert of the International Justice Expert described how ASPA “required the United States to enter into agreements with all ICC signatory states to shield American citizens abroad from ICC jurisdiction.” The immunity agreements were established under Article 98 of the Rome Statute, which prevents the ICC from “prosecuting individuals located on the territory of an ICC member state where such action by the court would cause the member state to violate the terms of any bilateral or multilateral treaty to which it is a party.”
Cables from the State Department, which U.S. military whistleblower Chelsea Manning released to WikiLeaks, revealed how the U.S. worked to convince countries to sign immunity agreements.
Less than a month after the Iraq invasion, the government in Guatemala wanted to include the following in a proposed agreement: “Nothing in this agreement shall prevent the Parties from cooperating in any investigation by an international tribunal or from furnishing any evidence in their possession, even if said evidence was requested as part of a proceeding initiated against one of the persons referred to in this agreement.”
“The U.S team took pains to explain why this language was unacceptable, referring to the previous discussion about lack of impunity, but also describing at length the U.S. rationale for not ratifying the Rome Statute,” the cable stated. “As non-Parties, neither side is obliged to cooperate with the ICC but are not barred from doing so.
The cable continued, “The USG, however, would object to cooperation with the ICC if allegations were to be made against a U.S. person. The [Government of Guatemala] side noted the importance politically of this issue because, again, the GOG needs to avoid the appearance of providing conditions for impunity, not only for U.S. persons but also for Guatemalan persons.”
A cable from July 19, 2002, from Italy addressed a bilateral agreement that would protect U.S. citizens from the ICC.
“Italian officials, particularly the prime minister, are sympathetic to USG concerns that U.S. officials could become the primary targets of politically motivated investigations by the court,” the cable noted. Yet, the perception that the “USG is going beyond measures to protect its personnel and into a full-court press against the ICC’s successful functioning” was seen as an obstacle to achieving an agreement.
Obama’s administration represented a departure from the Bush administration, but only in the sense that it was willing to enter into observer status. It supported cases so long as they did not conflict with the foreign policy agenda of the U.S. government. Particularly, the Obama administration fought efforts by Palestine to join the court and vehemently opposed any investigations of war crimes committed by Israel.
It maintained immunity for officials implicated in torture, refusing to allow them to be open to prosecution by any international court. Administration officials insisted domestic courts could properly investigate war crimes, however, the administration had no appetite for holding any officials accountable for torture and effectively decriminalized torture by refusing to prosecute officials.
Nevertheless, Michael H. Fuchs, the deputy assistant secretary of the Bureau of East Asian and Pacific Affairs, wrote for the Guardian that Bolton was sending another message that under the Trump administration, “the U.S. will not be bound by rules and will do what it pleases.”
He suggested this was a “theme” of the Trump administration that this reflected the “nature of American power,” that the Trump administration believes “the U.S. is not only special but also has no responsibilities abroad.”
The myth-making ramped up significantly in the final paragraph:
Part of what makes the U.S. unique is that, unlike any other great power in the history of the world, it continues to try to use its power for both the good of the U.S. as well as the world, even though it may not always succeed in doing so. Because America is exceptional, it is even more important that the U.S. follow international law, work to improve and enforce it, and act like a truly exceptional global leader.
There simply is no factual basis for this view. It is propaganda expressed by a liberal diplomat rendered impotent by the fact that a virulent combination of hawks and isolationists currently occupy the White House.
When the ICC previously had value to the U.S., that value was in advancing U.S. empire. For example, Ishan Tharoor, foreign affairs writer for the Washington Post, bemoaned the fact that the Trump administration might not utilize the ICC to prosecute Syrian President Bashar al Assad for war crimes or generals in Burma responsible for ethnic cleansing. Supporting cases against strongmen in Africa was all too convenient to the U.S. government, which wanted to project itself as a human rights supporter.
But it must not be ignored: U.S. officials spent the last fifteen to twenty years ensuring no U.S. official was held accountable for any crime committed in Iraq, Afghanistan, Italy, Lithuania, Poland, Romania, Thailand, or any country where torture, rendition, assassination, or other forms of brutality were employed.
Tom Nichols, a professor at the Naval War College, put it concisely, “Bolton’s position on the ICC is pretty much where American (or at least GOP) foreign policy has been since the Rome Treaty was signed 20 years ago. As usual, Bolton has a super-hostile spin on it, but it’s not new to this admin. Not all Trump policies are new things.”
That does not mean liberals or Democrats should not confront the U.S. record of opposing accountability for its systematic human rights violations. Rather, it should acknowledge Trump’s policy is a natural escalation of long-held U.S. policy.
Afghans reportedly submitted 1.17 million war crimes claims to the ICC. The staggering number of allegations implicate U.S. forces, Afghan Security Forces, government-affiliated warlords, as well as foreign and domestic spies. These claims deserve to be heard and deliberated over by the court, but the U.S. will once again use its power to suppress any semblance of justice, aside from any attempt by the ICC to hold Taliban leaders accountable for war crimes.