It is monstrous and ill conceived that the US National Security Adviser to President Trump, the notorious underminer of international institutions, including those with clear humanitarian purposes, one John Bolton, should get on his high horse to denounce the ICC whose jurisdictional powers are as far removed from the United States as are the terms of the United Nations Convention on the Law of the Seas removed from the United States in the South China Sea.
President Trump’s National Security Adviser’s verbal assault on the International Criminal Court (ICC) is yet another attempt to weaken and undermine institutions concerned with justice and humanity issues in the international community.
John Bolton has described the Court as “illegitimate”, “unaccountable” and “outright dangerous” to the United States, Israel and other allies. The US would therefore slap financial sanctions and criminal charges on officials of the Court if they were to proceed against any Americans, and would do the same for any company or state that assists any ICC investigation of Americans.
The ICC, established by treaty (the Rome Treaty) which entered into force in 2002 pursuant to prior UN Security Council endorsement, and now with 123 member states, was a modest effort to establish a balance between the interests of perpetrator and victim in international and trans-national conflicts where the most egregious acts of criminal violence against humanity, war crimes, aggression, and genocide are committed.
Formal codes and conventions to regulate military conflict, especially for the protection of prisoners of war and civilians, have been in existence since the end of the 19th century and were given an extra boost following the First and Second World Wars. As for criminal justice within these systems the outstanding contribution was made by the United States in the setting up of the Nuremberg Trials of the leaders of Nazi Germany between 1945 and 1948. The US judges and prosecutors on these courts were the most powerful advocates for setting and upholding standards of conduct in war in accordance with the relevant treaties and conventions.
However notwithstanding useful progress in this area those courts have been criticised for exercising ‘victors justice’, overlooking crimes committed from their own side, and that these trials were conducted as much for their demonstration effect on public opinion as for establishing a juridical basis for international law in future.
While we have had to experience massive atrocities in such places as the former Yugoslavia, Rwanda, the Congo, Cambodia, the Sudan and elsewhere before more concrete steps were taken by the international community to establish a credible institutional structure for the enforcement of international criminal law, those steps have been relatively modest to date.
The powers of the ICC in matters of investigation, apprehension and prosecution are considerably circumscribed by the treaty establishing its jurisdiction. To give jurisdiction a national government must ratify the treaty and become a party to the Court, as has Australia but not the United States. Even in the case of parties their nationals cannot be prosecuted unless their own national authorities have refrained from doing so themselves and a certain amount of government consent is also required.
However, information about relevant criminal breaches and atrocities anywhere may be brought to the attention of the Court but prosecution, including extra-territorial action, is, as noted, severely circumscribed. The most likely cases are where a government or a non-state group has been defeated in battle and objection to the Court’s jurisdiction would be minimal. In some such situations the Court itself has been bypassed and special tribunals with UN Security Council authority have been convened instead -the former Yugoslavia and Cambodia being examples.
So in these circumstances it is monstrous and ill-conceived that the US National Security Adviser to President Trump, the notorious underminer of international institutions, including those with clear humanitarian purposes, one John Bolton, should get on his high horse to denounce the ICC whose jurisdictional powers are as far removed from the United States as are the terms of the United Nations Convention on the Law of the Sea removed from the United States in the South China Sea.
American ‘exceptionalism’ can be taken to extremes, particularly where it in effect asserts that there is one law for the US and another law for others. This is a further case where the ‘rules based system’ fails the test of reality. Lately with the US declaring that it will punish states that don’t comply with its unilateral trade sanctions (e.g. on Iran), and now asserts that judges and officials of the ICC who cooperate with it in matters that may be within its jurisdiction – a duty of cooperation imposed on state parties – it has gone too far and offended international comity. It is problematic in the extreme that the US and its armed forces in Afghanistan could be subject to the Court. Mr Bolton’s threats amount to overkill and are manifestation of the US’s clear disregard of and disrespect for the sovereign rights of others. They are a further act designed to reshape the international order in America’s image – something that was achieved in 1945 but which is now much too late for and beyond America’s present circumstances and capabilities.
Andrew Farran is a former diplomat, legal academic and international trade adviser