On September 10, National Security Adviser John Bolton stood before the Federalist Society to make a “major annoucement on U.S. policy” toward an organization that “unacceptably threatens American sovereignty and U.S. national security interests.”
“This administration,” he pledged, “will fight back to protect American constitutionalism, our sovereignty and our citizens.”
The source of this terrible threat? The International Criminal Court.
The International Criminal Court is an unlikely adversary for the most powerful nation in the world. The international organization, which is housed in The Hague, Netherlands, has 123 state parties from every region of the world. Its members include most of the United States’s most important allies. It carries on a tradition inaugurated after World War II, when 24 of the most important leaders of the Third Reich were prosecuted at Nuremberg for their crimes before an international tribunal. Like the Nuremberg tribunals, which were convened and led by the United States, the court’s aim is to bring those who commit the worst atrocities to justice when their own countries cannot or will not do so. It has proceeded cautiously and slowly in carrying out this mission—since opening its doors in 2002, the court has issued verdicts in six cases: eight convictions, and two acquittals.
So what provoked the administration’s attack on this seemingly mild international organization? Bolton has long seen the world as engaged in a bitter contest between the “globalists,” who are dedicated to “belittling our popular sovereignty and constitutionalism, and restricting both our domestic and our international policy flexibility and power,” and the “Americanists,” who work to defend American values and institutions against the onslaught. The globalists had the upper hand for a time, but now he sees an opportunity for the Americanists to seize back control.
That International Criminal Court fulfilled his worst fears, he argued, by initiating a preliminary investigation of U.S. treatment of detainees in Afghanistan—including, it is alleged, torture and inhumane treatment. In his speech, he outlined a litany of complaints against the “illegitimate” court.
Bolton argued that the court threatens American sovereignty by claiming “unfettered discretion to investigate, charge and prosecute individuals.” But the prosecutor’s discretion is not unfettered. She has jurisdiction to investigate the allegations because Afghanistan signed and ratified the Rome Statute—and has thus accepted jurisdiction over activities that take place within its territory. Bolton’s claim is tantamount to arguing that if a U.S. citizen were to travel abroad and break the law, it would be a violation of American sovereignty for that person to be held to account.
Pushing his case a step further, Bolton argued that “The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats.” No such proposal is on the table—or has ever been on the table.
Taking a different tack, Bolton then argued the court was ineffective and was “superfluous, given that domestic U.S. judicial system already holds American citizens to the highest legal and ethical standards.” What he does not acknowledge is that the U.S. could avoid the court’s attentions by simply opening a genuine investigation of its own. Under Article 17 of the Rome Statute, a case is inadmissible if it is “being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
In an ironic twist, Bolton has pulled out the tools of American power developed to enforce international law—what I have elsewhere called tools of “outcasting ”—to instead undermine it. And he promised to not simply go after the court itself, but to target its personnel, too: “We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system.”
That’s right: lawyers and judges who are simply doing their jobs will be personally targeted for retribution. What’s more, the Trump administration will go after private companies and states that assist an investigation of Americans—potentially putting the U.S. government at odds not only with U.S. companies but with important allies, as well.
Instead of strengthening American sovereignty and leadership in the world, the administration policy announced by Bolton is only likely to erode it. With the exception of a small number of autocratic states, most states are unlikely to be willing to go along with the unprecedented efforts to sanction personnel of an international organization doing their jobs in good faith.
The world will see this new policy for what it is: an outrageous attack on the institutions of global cooperation, and a worrisome sign that a United States led by President Trump cannot be counted on to lead the fight for global justice, but instead poses a terrible threat to it.
Oona Hathaway is professor of law at Yale Law School and co-author of The Internationalists.
The views expressed in this article are the author’s own.