A rejection of John Bolton’s assault on the ICC – and an opportunity to reflect 

John Bolton’s speech at the Federalist Society regarding the International Criminal Court is a paean to American exceptionalism. The timing and ferocity of the vitriol against the ICC is unsurprising, given the potentially imminent announcement by the ICC of an investigation into allegations of crimes committed by U.S. servicemembers in Afghanistan. There is nothing fundamentally new in the substance of the speech, which recycles old and hackneyed arguments. While characterized as an irrelevant assault on the ICC, it is worth engaging with some of the points raised – and to reflect more broadly on the ICC. 

The legitimacy of the court has been assailed as having been “rejected by most of the world”. In fact, 123 states are party to the Rome Statute, the treaty establishing the court. Sovereignty, invoked often, underlies the equality of all states regardless of size and power in undertaking international legal obligations. Arguably, the U.S. and others that have not ratified the treaty – including China, Russia, and India – are well within their rights to abstain from participation. However, entering into bilateral agreements and arm-twisting states on the pain of retaliation, significantly undermines the work of the court. With the exception of Burundi, most states have chosen not to renege on their commitment to the ICC. 

The objective of the ICC is to combat impunity, and to ensure justice and accountability for atrocity crimes. It would be entirely naïve to assume that the mere establishment of the institution would result in a complete cessation of these crimes. While deterrence may be a matter of dispute, the backlash against the court may instead indicate a real fear of ICC prosecutions. The withdrawal notification of the Philippines came within weeks of the ICC prosecutor initiating an examination into crimes against humanity. More support for the court, including greater collaboration and enforcement of its orders, would conceivably result in achieving its stated aims more effectively. 

Concerns about sovereignty and the primacy of the domestic legal system have made the principle of complementarity a core component of the treaty. Only if a state is unwilling or unable to prosecute, will the ICC come into play. The onus is on the state to have its legal system actually act – and not just posture – failing which the ICC is the court of last resort. This also means that the power to prevent the ICC from assessing the actions of individuals of a state are precisely in its own hands. 

War crimes, crimes against humanity and genocide are clearly defined in the Rome Statute. Any ambiguity is similar to that inherent in a domestic legal system, requiring adjudication and the evolution of law. Jurisprudence of other international tribunals such as for Rwanda, the former Yugoslavia etc. can also be relied upon. Clearly however, the real animus is reserved for the crime of aggression – which is defined and has recently entered into force. The point made that had the crime of aggression been defined at the time of the Second World War, the U.S. could have been prosecuted is preciselythe reason why it is significant – to avoid wars of aggression and victor’s justice, as embodied by the Nuremberg and Tokyo tribunals. However, the chances of it ever applying to the U.S. are remote, to say the least.   

The charges of neo-imperialism are particularly problematic. While it is true that most of the cases subject to the scrutiny of the court are from Africa, many were initiated at the instance of those states themselves. This is a convenient deflection though, by politicians targeted by an ICC investigation, as in Kenya and Sudan. It would however be wise not to underestimate the anger at the unending wars that the U.S. has become embroiled in, and the lack of accountability. The devastating humanitarian impact has galvanized allegations of American neo-imperialism, for which a potential investigation by the ICC may be viewed as its comeuppance. 

There are real challenges to the efficacy of the court, including the lack of cooperation by states. Issues such as immunity for heads of state under customary international law are the subject of controversy, needing further clarity. These are all matters that are evolving, as the practice of the court continues. The court is a work in progress, blemishes and all – and needs to be constantly monitored, critiqued and assessed. Allies of the U.S. including France and Germany have come out strongly in support of the court. Reactionary statements based on a personal bugbear that transform into official U.S. policy do the court – and Americans – a great disservice.