“We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” These were the words of United States national security adviser John Bolton, in a scathing address about the International Criminal Court at the Federalist Society in Washington, DC, on Monday.
Couched in the unapologetic jingoism of the Trump administration’s “America First” rhetoric, Bolton derided the ICC as an unaccountable, ineffective impingement on sovereignty. Citing concerns about the politics, law and management of the ICC, the central thrust of Bolton’s attack was about the potential prosecution of US and Israeli officials.
In response to prosecution, Bolton noted that the US would prosecute ICC judges and prosecutors and those who assist in investigations, ban them from entry to the US and sanction their assets.
These comments emerge in light of the ICC’s preliminary examinations into the situations in Afghanistan and Palestine. On the Afghanistan situation, the ICC prosecutor has requested authorisation to open an investigation.
Should the investigation proceed, it may implicate US officials for their role in atrocity crimes in Afghanistan, and for torture committed at “black sites”.
Likewise, while the prosecutor has not requested authorisation to investigate in Palestine, should an investigation proceed, it would probably implicate Israeli officials.
On the one hand, this marks a shift from previous US administrations’ approaches to the ICC. Like the US withdrawal from the Paris climate agreement and the United Nations Human Rights Council, it is indicative of the Trump administration’s resistance to multilateralism. Although the US is not a member of the ICC — the Clinton administration originally signed the court’s founding Rome Statute, but the Bush administration later unsigned it — it has provided some measured support for the court, not least by abstaining from, rather than voting against, referral of the situation in Darfur, the western region of Sudan, to the ICC at the UN Security Council in 2005.
The US has been supportive of the prosecution of others, but it has been violently opposed to the prospect of its own accountability. In the early 2000s, under Bolton’s leadership as under secretary of state for arms control and international security in the Bush administration, the US, using threats of withdrawal of aid, coerced multiple states into signing bilateral immunity agreements preventing them from turning over US officials to the court. Even more draconian is the “Hague Invasion Act” of 2002, which authorises the US to use military force to prevent its citizens from being prosecuted. Read in this light, Bolton’s comments are a continuation of a trajectory of measures taken in pursuit of US impunity.
The ICC has multiple problems, but the overzealous prosecution of Western officials is not one of them
To be sure, the ICC is not without significant problems. As the African Union (AU) and some of its member states have pointed out, its almost singular focus on Africa — all but one of its open investigations are in Africa and all of its indictees are African nationals — reflects the inequitable and raced global power arrangements of which it is both a product and a reproducer.
It regularly purports to speak in the name of, and instrumentalises, an ill-defined group of victims, to whom it is rarely able to provide real justice. Its self-framing as providing justice for “the most serious crimes of concern to the international community as a whole” implicitly creates hierarchies about whose and what experiences of violence are significant or of concern, effectively erasing those outside of its remit.
Moreover, it is not surprising, in light of its role in the broader neoliberal order, that critique of the ICC finds such natural coalescence with right wing populism. University of Liverpool academic Christine Schwöbel-Patel remarks: “Why is it that this anti-multilateralist rhetoric, of which the attack on the ICC is the latest instantiation, is resonating with a wide public, prompting applause in the room at Bolton’s announcement? The answer to this must surely lie in the disenchantments of globalisation.
“International institutions have been at the heart of creating and legitimating global inequalities, and in institutionalising a global economic elite. Since the global financial crisis at the very latest, this global economic elite is viewed as unaccountable for its actions.
“Bolton’s characterisation of an ICC which lacks accountability, combined with its asserted aim of constraining the US, therefore taps into the anti-internationalist sentiments already widely held in the US. Mix in a sensationalist mention of the vulnerability of American service members and armed forces to foreign prosecution, and you have all the ingredients of a nationalist, populist narrative.”
Amid this array of concerns, excessive prosecution of US or Western officials, as Bolton fears, has not proven to be a priority at the ICC. If anything, the ICC’s record is one of eschewing accountability for the powerful. The ICC is on its second Palestine preliminary examination; the previous one closed after years of footdragging. If the judges confirm the investigation into Afghanistan, it may see prosecution of US officials, without co-operation, which will make this process immensely difficult. Outside of the West, the experiences of the ICC’s attempts to prosecute heads of state in Kenya and Sudan illustrate that, in light of the fact that the court relies on co-operation, including from the accused, to be able to carry out its work, structurally, the prospects of effectively prosecuting the powerful actors are tremendously slim.
Perhaps, then, one of the unfortunate consequences of Bolton’s wildly misdirected attack, is its feeding into good and evil binaries about the ICC. There is a tendency, as debates around the relationship between the AU and the ICC have illustrated, to situate all critique of the ICC as irrational and Bolton’s right-wing nationalist irrationality supports this narrative.
In this way, in addition to support for impunity, Bolton’s speech risks narrowing the already miniscule space for genuine contestation about what justice should look like, its omissions, its politics and its relationship with power.
Kelly-Jo Bluen is a PhD candidate at the London School of Economics and Political Science