Bolton, who was Bush’s ambassador to the United Nations from 2005 to 2006, echoed this on Tuesday when he said, “The ICC is an unprecedented effort to vest power in a supranational body without the consent of either nation-states or the individuals over which it purports to exercise jurisdiction.” Bolton further suggested that because “the International Criminal Court fails in its fundamental objective to deter and punish atrocity crimes,” the ICC will probably wither and collapse.
These two claims — the ICC is ineffective, yet the ICC is a threat to U.S. sovereignty — seem contradictory. If the ICC is ineffective, why is Bolton so concerned? Given those concerns, is his hostility to the court likely to serve U.S. interests?
The ICC is the first permanent international court tasked with prosecuting war crimes and crimes against humanity. Earlier efforts, such as the 1945 Nuremberg trials or the 1994-2015 International Criminal Tribunal on Rwanda, were organized ad hoc — the first by the victorious Allied countries and the latter by the United Nations. The ICC exists outside the U.N. system, although if it wants to investigate situations in nonmember countries, the U.N. Security Council must approve. Currently, the ICC has 123 member countries. It has launched 11 investigations — 10 of which involve African countries — won four guilty verdicts, and acquitted or dropped charges in six cases.
The ICC threatens U.S. sovereignty only in very specific conditions
Several ICC legal principles limit how much it can threaten U.S. nationals.
First, the United States has not ratified the Rome Statute. That means the court has jurisdiction over American actions only when they’re committed in ICC member states, as Afghanistan is. Any other investigation would have to be approved by the U.N. Security Council — and because the United States is a permanent Security Council member, it would surely veto the investigation.
Bolton claimed that the “ICC has authority to prosecute genocide, war crimes, crimes against humanity, and crimes of aggression. It claims ‘automatic jurisdiction,’ meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.” But he’s wrong. The ICC cannot prosecute nonmembers for the crime of aggression. If an investigation uncovered enough evidence to move forward with charges, those would probably be “war crimes” or “crimes against humanity.”
Second, the ICC operates by the “complementarity principle.” That means the court can investigate only when a nation’s own authorities are “unable or unwilling” to do so. That makes it legally difficult to target the personnel or citizens of democratic countries with well-established rules of law, such as the U.S. legal system or the Uniform Military Code of Justice.
Third, the United States has what are called Article 98 agreements with many countries, including Afghanistan, that prohibit the country from handing over U.S. personnel to the ICC. In 2002, Congress passed the American Service-Members’ Protection Act, which required that countries receiving deployments of U.S. troops sign Article 98 agreements.
Could the court still investigate and bring charges against U.S. personnel, ignoring the strength of U.S. judicial institutions? Would Article 98 agreements protect U.S. nationals from all court actions? That’s difficult to say. If the ICC did move ahead on such an investigation, the United States could use treaty law to dispute the ICC’s jurisdiction. And the United States could wield its considerable power to influence countries to uphold their treaty commitments.
But here’s what is certain: The ICC relies on states’ cooperation for conducting investigations and arresting indicted suspects. Without that cooperation, it can’t be effective. Consider Sudan, where in 2009 and 2010, the ICC issued arrest warrants for President Omar Hassan al-Bashir for genocide and crimes against humanity for violence against civilians in Darfur. Bashir remains in power and has not been handed over, even though he has traveled to several ICC member states.
Why? Because so many of its investigations and prosecutions have been of African leaders, several sub-Saharan African countries are accusing it of racism and threatening to withdraw from the ICC. When nations criticize the ICC, as in the case of the backlash in Africa, or threaten retaliation for its investigations, as Bolton just did, research suggests that public support for the court likely erodes.
Are there other options for the United States?
There are other ways to influence the ICC, and international institutions in general, than attacks like Bolton’s. Research finds that powerful countries can further their own interests by working within international institutions. If the United States were to cooperate with the ICC, it might have more leverage to oppose investigations it doesn’t like. Powerful governments can make international organizations depend on their resources — giving them more influence over institutional decisions.
If the United States were to cooperate with rather than confront the ICC, the court would likely be more effective, would pose less danger to U.S. personnel, and could promote such traditional U.S. foreign policy interests as democracy and human rights.