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Published online by Cambridge University Press: 14 January 2019
On September 10, 2018, U.S. National Security Advisor John Bolton delivered an address fiercely criticizing the International Criminal Court (ICC). Bolton challenged the legitimacy of the ICC and expressed particular concern over its inquiry into potential war crimes committed by members of the U.S. military and intelligence agencies in Afghanistan. He identified retaliatory measures the United States would undertake if the ICC “comes after us, Israel or other U.S. allies.”
1 John Bolton, Assistant to the President for National Security Affairs, National Security Advisor, Protecting American Constitutionalism and Sovereignty from International Threats (Sept. 10, 2018), available at https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court; see also White House Fact Sheet, Protecting American Constitutionalism and Sovereignty from the International Criminal Court (Sept. 10, 2018), at https://www.whitehouse.gov/briefings-statements/protecting-american-constitutionalism-sovereignty-international-criminal-court [https://perma.cc/7TBT-JK8A].
2 Bolton, supra note 1.
3 Id. Among other provisions, ASPA authorizes the president to use all “means necessary and appropriate” to free U.S. military personnel or other U.S. government employees detained or imprisoned “by, on behalf of, or at the request of the International Criminal Court.” Pub. L. 107-206, 116 Stat. 820, 905 (2002) (codified at 22 U.S.C. § 7427 (2012)).
4 Koh, Harold Hongju, International Criminal Justice 5.0, 38 Yale J. Int'l L. 525, 534 (2013)Google Scholar (quoting Secretary of State Hillary Clinton and going on to describe the Obama administration's approach to the ICC).
5 Bolton, supra note 1; see also International Criminal Court Statement, The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan (Nov. 20, 2017), at https://www.icc-cpi.int//Pages/item.aspx?name=171120-otp-stat-afgh [https://perma.cc/C2V3-XDC3] [hereinafter Description of Prosecutor's Request].
6 Description of Prosecutor's Request, supra note 5. The Rome Statute gives the ICC jurisdiction over crimes committed on the territory of a state party, which Afghanistan has been since 2003, “regardless of whether the alleged suspects are nationals of a State Party.” Situation in the Islamic Republic of Afghanistan, ICC-02/17, Public Redacted Version of Request for Authorisation of an Investigation Pursuant to Article 15, para. 44 (Nov. 20, 2017), available at https://www.icc-cpi.int/CourtRecords/CR2017_06891.PDF.
7 Description of Prosecutor's Request, supra note 5 (referencing “[w]ar crimes by members of the United States … armed forces on the territory of Afghanistan, and by members of the U.S. Central Intelligence Agency … in secret detention facilities in Afghanistan and on the territory of other State Parties to the Rome Statute, principally in the period of 2003–2004”).
8 Bolton, supra note 1.
9 Id.
10 Id.
11 Statement, International Criminal Court, The ICC Will Continue Its Independent and Impartial Work, Undeterred, ICC-CPI-20180912-PR1406 (Sept. 12, 2018), at https://www.icc-cpi.int/Pages/item.aspx?name=pr1406 [https://perma.cc/ZMR9-GBBA].
12 Alex Moorehead & Alex Whiting, Countries’ Reactions to Bolton's Attack on the ICC, Just Security (Sept. 18, 2018), at https://www.justsecurity.org/60773/countries-reactions-boltons-attack-icc (compiling responses by state officials and noting, with respect to Sudan, that the ICC has long been investigating crimes committed on its territory); see also International Residual Mechanism for Criminal Tribunals Press Release, Statement of President Meron in Support of the ICC (Sept. 13, 2018) (noting that “[a]t a time when the Court and the Rome system itself continue to face challenges … I wish to pause and salute the Judges and the leadership of the ICC … [who] are helping to bring us ever closer to our fundamental aim: ending impunity for serious violations of international law”).
13 David Scheffer, Ambass. David Scheffer on John Bolton's Announcement of “Ugly and Dangerous” Punitive Actions Against Judges, Prosecutors of Int'l Criminal Court, Just Security (Sept. 10, 2018), at https://www.justsecurity.org/60678/ambass-david-scheffer-john-boltons-announcement-ugly-dangerous-punitive-actions-judges-prosecutors-intl-criminal-court; see also, e.g., Jane Stromseth, Why Bolton's Assault on the ICC Is Not in U.S. Interests, Just Security (Sept. 14, 2018), at https://www.justsecurity.org/60743/boltons-assault-icc-u-s-interests (contending that these policies “undermine[] crucial efforts to strengthen legal accountability in domestic courts in many countries emerging from conflict”); Jennifer Trahan, The Fallacy That Attacking a Judicial Institution and Its Personnel Protects Americans: A Response to John Bolton's Speech, Opinio Juris (Sept. 12, 2018), at http://opiniojuris.org/2018/09/12/the-fallacy-that-attacking-a-judicial-institution-and-its-personnel-protects-americans-a-response-to-john-boltons-speech (observing that “[t]hese bullying tactics do not well-serve the [United States], and will be seen for what they are”).
14 John Bellinger, The Trump Administration Throws Down the Gauntlet to the ICC. The Court Should Decline the Challenge, Lawfare (Sept. 10, 2018), at https://www.lawfareblog.com/trump-administration-throws-down-gauntlet-icc-court-should-decline-challenge (also deeming the ICC Prosecutor “unwise” in seeking to open an investigation into war crimes committed by U.S. officials).
15 Id. (noting that “[i]t would be an extraordinary stretch” to determine that, under the International Emergency Economic Powers Act, the ICC posed a “national emergency” to justify sanctioning judges and prosecutors); see also Alex Whiting, Why John Bolton vs. Int'l Criminal Court 2.0 Is Different from Version 1.0, Just Security (Sept. 10, 2018), at https://www.justsecurity.org/60680/international-criminal-court-john-bolton-afghanistan-torture (noting that “there appears to be no domestic legal authority to take up the core of these measures”).
16 See David Bosco, Bolton Barked at the ICC, But With How Much Bite, Lawfare (Sept. 11, 2018), at https://www.lawfareblog.com/bolton-barked-icc-how-much-bite (observing that countries that have not already signed such immunity agreements are unlikely to do so under the Trump administration and that “it is exceedingly unlikely that Britain and France (or the requisite number of non-permanent members) will support general anti-ICC resolutions” at the Security Council).
17 Donald J. Trump, Remarks to the United Nations General Assembly in New York City, 2018 Daily Comp. Pres. Doc. 631, at 4 (Sept. 25).
