A new war with the International Criminal Court

Shortly before I became the U.S. ambassador at-large for war crimes issues in 2006, then-Secretary of State Condoleezza Rice asked me, in my new capacity, to try to undo some of the damage she felt had been inflicted on the United States by John Bolton’s scorched-earth campaign against the International Criminal Court (ICC). Throughout my term as ambassador, which ended in late 2009, much of my time and energy was devoted to this objective; since then, my successors, and many others, have sought to restore the United States to its rightful place as a leader in the field of international justice.

Whatever has been achieved now is in danger of unraveling as John Bolton, in government once again as President Trump’s national security adviser, has announced a new crusade against the ICC.

{mosads}Mr. Bolton’s approach, then and now, runs counter to our long history of being in the forefront of efforts to humanize, as much as possible, the conduct of warfare and to hold accountable those who violate those standards. From the 1860s, when the United States became the first country to issue instructions to its soldiers on the laws of war, through adoption of the Hague and Geneva conventions, to establishment of the Nuremberg and Tokyo tribunals and, 50 years later, of the Yugoslavia and Rwanda tribunals, we have been a world leader in combating impunity.

So, not surprisingly, the United States took a prominent role when negotiations were launched to establish a permanent war crimes tribunal, the International Criminal Court, which was realized with the adoption of the Rome Statute in 1998. Noting misgivings about its final form, the Clinton administration nevertheless signed the treaty and said that the United States would work with its global partners to improve the court before seeking ratification.        

Even this measured approach was anathema to Mr. Bolton, and when he became an under secretary of State in 2001, he sought to sever any relationship the United States might have with the ICC and to undermine the institution more broadly. This immediately put us at odds with virtually every democratic country on earth — and, most strikingly, with our closest European allies.

The impact of his policy approach had even more far-reaching implications, though, as he pushed for the termination of longstanding military relationships with any country that refused to exempt U.S. citizens from the jurisdiction of the ICC, driving them to seek other partners, some of whom were hostile to the United States. These were the issues that so concerned Secretary Rice and that she sought to rectify during President Bush’s second term.

Acknowledging that the United States had some significant differences with the ICC, the Bush administration, in its latter years, nevertheless sought to develop a working relationship with the court, recognizing the role that it alone could play in addressing mass atrocities around the world. The Obama administration further institutionalized these policies and strengthened U.S. political and intelligence support for the ICC.

All the while, the United States continued to work with the ICC and other tribunals to address our concerns and to refine and improve the framework for international justice. This is because these institutions have provided an invaluable service, ensuring accountability for leaders who have orchestrated the most egregious atrocity crimes in recent history — men and women who otherwise would have escaped with complete impunity.   

In renewing his fight with the ICC, Mr. Bolton is expressing outrage that the court has undertaken a preliminary investigation of possible violations of international humanitarian law in the Afghanistan conflict, an investigation that potentially could implicate American intelligence operatives and soldiers, along with fighters from the Taliban and other warring factions.  

Afghanistan is a state party to the ICC and the court has geographical jurisdiction over crimes committed on its territory. Mr. Bolton rejects this concept where it applies to U.S. citizens since the United States is not a state party of the ICC. While I disagree with his interpretation, and recognize that it was our government’s own misguided policy on torture that put us in this precarious position, I understand that it is very unlikely that any administration — Bush, Obama, or Trump — would ever turn over U.S. citizens to the ICC for prosecution.

Accepting that the United States is unlikely to cooperate with an ICC prosecution of American citizens, it is nevertheless against our interests to again start down a path of undermining an institution that the world desperately needs and that our closest allies strongly support. If we do so, it will prove to be as self-defeating as the first time Mr. Bolton embarked on this course, and it will accomplish little more than further undercutting values that long have defined us as a nation.

Clint Williamson is senior director for rule of law, governance and security at the McCain Institute and a distinguished professor of practice at the Sandra Day O’Connor College of Law at Arizona State University. The views expressed here are those of the author alone.