Bolton’s authorized major speech on the International Criminal Court misrepresented it, expressed deep hostility to it, but was revealing of just how deeply entrenched in US foreign policy is the notion of US exceptionalism, under which it and Israel are immune from international law.
On the eve of the 17th anniversary of the 9/11 terrorist attacks on the US, Trump’s national security advisor, John Bolton, delivered to the Federalist Society in Washington DC “a major announcement on US policy toward the International Criminal Court or ICC”. This description, by him, of the nature of his remarks was the first misrepresentation of what he was about.
A plain reading of his text shows that what he delivered was not simply the well known US rejection of the ICC, but a far deeper exposition of the aims and principles now guiding US relations with all other states. These are: the protection of Israel in all circumstances, no matter how it conducts itself; the immunity of the US from any decisions made by the community of nations by way of international rules or laws; and its determination to pursue and punish any other state or institution which conduct themselves in ways of which the US disapproves. That pursuit will include its friends and allies, presumably including Australia.
He said that states which opposed or violated US policies towards the work and conduct of ICC would be punished with sanctions, termination of aid and intelligence cooperation where that presently existed; the senior staff of ICC would face sanctions such as being forbidden to enter the US.
He listed five areas in which the US has “ principal concerns about the court, its purported authority, and its effectiveness”. This list misrepresented the facts of the court’s role, powers and modus operandi and the rights of states under its statute, the Rome Statute of 1998. What clearly emerges from it is that, according to Bolton, it poses a challenge to US sovereignty and fails utterly to recognize the unique character of the US constitution and political habits.
This stance misrepresents, in turn, the central fact that the decision by any state to accede to the Statute of Rome is, itself, an exercise of its sovereignty and those that have declined to do so are free of its main obligations. One hundred and twenty-three states, including Australia, have acceded to the statute. The US has not. The US took part in the negotiation of the statute and insisted on significant amendments to the draft, mostly to weaken it, and initially signed it. Subsequently, it withdrew its signature.
Why then is the US so exercised by the existence of ICC? Bolton tells us it is because references to the court of suspect breaches of international law – war crimes, crimes against humanity, for example – may be made by non-US parties and may include actions by US persons, troops in the field, or Israeli persons in Gaza or the West Bank, for example, and he states that this would be intolerable.
Incidentally, he announced that the US had, on that day, instructed the removal from Washington of the Palestinian representative office.
His speech went far beyond expressing rejection of the ICC and its mandate but stated a determination to hunt it down, to evisceration. The US will be taking up at the UN Security Council the need to “constrain the court’s sweeping powers”. The speech was littered with glowing references to the US constitution and political and judicial system, which are represented as virtually faultless and a model for the world. Apart from the fact that this simply begs credulity, especially in today’s circumstances, it serves to display the extent to which the notion of America as the “exceptional country” is shaping US self-regard.
There is widespread and lamented recognition, amongst states, that the practical meaning of this US myth is US insistence that international law does not apply to it. The notion of American exceptionalism is widespread and deeply offensive to others. As Bolton’s speech showed, it is antithetical to international cooperation.
In an impressive essay, “Al Qaeda Won”, by Stephen Marche in the current issue of the US journal Foreign Policy, also on 10 September, Marche reflects:
“At the core of the failure was American exceptionalism, the assumption, which in my experience no American escapes entirely, that what happens in the United States matters more than what happens elsewhere. American exceptionalism is a form of political myopia, making perspective nearly impossible, even amongst the most educated.”
The Rome Statute and the ICC are instruments for international cooperation designed to bring to account dreadful crimes and those who commit them. They have operated unevenly and many states are restive about them. They should be improved.
John Bolton’s speech, which purported to address those issues, was a failure because all it did was throw rocks at the institution, but more particularly because the purpose of his major policy pronouncement was not to improve the institution but to destroy it and cooperation with it by others.
But it was useful as an illustration of the scope of the problem with an America, which is now lost in self regard, having resigned its role as a leader in international cooperation but continuing to assert that it is exceptional and has no international obligations. There was a time when it was very special, when it got on with the job of building a new world after the Second World War, not because it felt exceptional but because it reckoned it was the right thing to do.
In watching Bolton’s speech, the level of hostility with which he delivered it was striking. Obviously, he is a true believer. One has to ask, how are they coping in Canberra with the notion that “what happens in the United States matters more than what happens elsewhere”. Still with the Alliance programme?
Richard Butler AC is a former Ambassador to the United Nations, Diplomat in Residence at the Council on Foreign Relation, New York, and Professor of International Affairs at NYU and Penn State.