National security adviser John Bolton has long held a grudge against the International Criminal Court. As undersecretary of state during the George W. Bush administration, he signed an official letter saying that the United States would never become a party to the international court. Just last year, he wrote an op-ed in which he called the ICC a “direct assault on the concept of national sovereignty.”
So it was no great surprise on Monday that Bolton delivered a fiery anti-ICC speech on behalf of the Trump administration, threatening sanctions and travel bans against those who cooperate with its potential investigations into U.S. actions in Afghanistan or a separate investigation into Israeli actions in Gaza.
"The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” Bolton said in his speech at the Federalist Society, adding that “for all intents and purposes, the ICC is already dead to us.”
But some experts think that a Bolton-led assault on the court is not necessarily a disaster for the ICC — indeed, some argue that it may be good for the court's reputation.
The ICC has had a somewhat difficult history since it began operating in 2002. The court was founded with the idea of legally tackling some of the world’s worst atrocities when national governments prove unable to do so. More than 120 states are party to the Rome Statute — the treaty that established the ICC — while a further 23, including the United States, signed the treaty but never ratified it.
The court has thus far opened investigations into situations in 11 countries, and there are preliminary investigations underway in a number of other nations, including the one involving U.S. forces in Afghanistan.
But it has struggled to operate as intended, in part because the United States, as well as other big nations like China and India, do not take part. Many critics also say the ICC has unfairly targeted African nations rather than focusing on more powerful Western countries.
There’s merit to this argument: Ten of the court’s 11 current investigations are focused on African states, and all 37 named defendants are from Africa. Because of this sense of unfair targeting, there has been growing backlash to the ICC among many African nations. Notably, many countries have refused to arrest Sudanese President Omar Hassan al-Bashir despite an ICC warrant against him.
Some countries have threatened to back out of the court altogether: Burundi became the first state to withdraw from the ICC last year, and the Philippines is scheduled to withdraw in 2019.
So why did these critics willingly sign on to the court's creation in the first place? David Bosco, an international law expert and associate professor at Indiana University, believes that Bolton’s vehement opposition to the ICC in 2002 led some countries to sign on in reaction to the U.S. government’s bluster.
"Surrounded as they were by alarmist rhetoric from the superpower, many smaller and weaker states may actually have come to believe that the new court was going to target major powers as often as it would focus on weak and failing states,” Bosco wrote for Foreign Policy.
Some of Bolton’s former colleagues appear to agree. John Bellinger, who worked as a legal adviser at the State Department during the Bush administration, wrote recently for the national security blog Lawfare that the aggressive approach spearheaded by Bolton had been a mistake.
"These actions generated significant international hostility towards the United States and fed a false international narrative that the United States was hostile to international justice,” Bellinger wrote.
So far, the ICC has not held major powers to account the way many had hoped, but that may now be changing. Though the potential Afghanistan investigation has crawled along, there has been some movement on the case since last year. Bolton’s speech on Monday seems to suggest that the Trump administration believes that a court battle is looming.
Indeed, Bolton’s threats are a reminder that major powers like the United States are still subject to repercussion at the ICC, just as much of the world had hoped. “There are real silver-linings to a U.S. administration bent out of shape” over the ICC, Mark Kersten, a fellow at the University of Toronto, wrote in a tweet.
A previous version of this report inaccurately said that Stewart Patrick recently wrote in Lawfare about John Bolton's approach to the ICC and how other nations have responded to the United States as a result.