Jon Bolton’s (September 2018) presentation of the Trump administration policy towards the International Criminal Court, given in a speech to the Federalist Society, is reproduced here in full (Bolton quoted in italics), with my annotations. I don’t believe I had ever seen such open justification and promotion of criminal behavior by a USA official.
“I am here to make a major announcement on US policy toward the International Criminal Court, or ICC.
“After years of effort by self-styled “global governance” advocates, the ICC, a supranational tribunal that could supersede national sovereignties and directly prosecute individuals for alleged war crimes, was agreed to in 1998. For ICC proponents, this supranational, independent institution has always been critical to their efforts to overcome the perceived failures of nation-states, even those with strong constitutions, representative government, and the rule of law”
Funny how Bolton seems to be unaware the USA was involved in the Rome Statute at its inception; mainly to convince the court should not exercise universal jurisdiction. The other states were keen to have the USA onboard but would appear this had been a ruse all along. When universal jurisdiction had been excluded, to please the Americans, the USA lost interest in joining.
“In theory, the ICC holds perpetrators of the most egregious atrocities accountable for their crimes, provides justice to the victims, and deters future abuses. In practice, however, the court has been ineffective, unaccountable, and indeed, outright dangerous. Moreover, the largely unspoken, but always central, aim of its most vigorous supporters was to constrain the United States. The objective was not limited to targeting individual US service members, but rather America’s senior political leadership, and its relentless determination to keep our country secure”
A Bolton type mentality is incapable to grasp if the USA had not pushed its nose into the affairs of nation-states across the globe, while flexing military might in the process (the crime of aggression), populations would not have become radicalized and turned that radicalized anger on the USA. Should any nation’s political leadership be privileged with impunity? Is Bolton saying impunity is a privilege reserved to the USA and its ‘chosen’?
“The ICC was formally established in July 2002, following the entry into force of the Rome Statute. In May 2002, however, President George W Bush authorised the United States to “un-sign” the Rome Statute because it was fundamentally illegitimate. The ICC and its prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American people and the sovereignty of the United States”
What a load of patent nonsense. The USA’s Constitution makes treaty law entered into by the United States the “the supreme law of the land” in which case the relevant treaty law is absolutely constitutional as regards sovereignty. The real point here should be, if the USA’s citizens are worried about individual rights conforming to USA standards, they should stay home and keep their noses clean within the context of American law. That’s why we’ve had a constitutional treaty law provision since the USA’s inception, because the entire world isn’t the USA. But Bolton and like-minded minions of USA foreign policy seem to think American standards should apply to the entire globe. It follows, American empire isn’t welcome across much of the globe and understandably so.
“In no uncertain terms, the ICC was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent”
Since when had it been necessary, in any society in the world, to ask the consent of criminals to prosecute?
“According to the Rome Statute, 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”
What a worm’s slimy rationalization; if you wouldn’t like to be prosecuted by the ICC 1) behave yourself and 2) stay away from where the court’s jurisdiction is in force (like Afghanistan.)
“Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in the room today, are purportedly subject to the court’s prosecution should a party to the Rome Statute or the chief prosecutor suspect you of committing a crime within a state or territory that has joined the treaty”
So, what’s the problem? Don’t commit crimes, keep your soldiers at home and mind your own business, it couldn’t be more simple.
“To protect American service members from the ICC, in 2002 Congress passed the American Service-Members’ Protection Act, or ASPA, which some have branded “The Hague Invasion Act”
“This law, which enjoyed broad bipartisan support, authorizes the president to use all means necessary and appropriate, including force, to shield our service members and the armed forces of our allies from ICC prosecution. It also prohibits several forms of cooperation between the United States and the court”
The preceding two paragraphs is nothing short of an oblique declaration the USA has enacted a de facto rejection of the Geneva Conventions.
“I was honored to lead US efforts internationally to protect Americans from the court’s unacceptable overreach, starting with un-signing the Rome Statute. At President Bush’s direction, we next launched a global diplomatic campaign to protect Americans from being delivered into the ICC’s hands. We negotiated about 100 binding, bilateral agreements to prevent other countries from delivering US personnel to the ICC. It remains one of my proudest achievements”
This criminal disregard for the rule of law in international relations poses a relevant question: Were a state signatory to the ICC to act on Bolton’s, Bush era (strong-armed) agreements, would the actors be committing a crime of ‘aiding and abetting’? Methinks, yes.
“Unfortunately, we were unable to reach agreement with every single nation in the world, particularly those in the European Union, where the global governance dogma is strong. And last fall, our worst predictions about the ICC’s professed and overly broad prosecutorial powers were confirmed.
“In November of 2017, the ICC prosecutor requested authorization to investigate alleged war crimes committed by US service members and intelligence professionals during the war in Afghanistan – an investigation neither Afghanistan nor any other state party to the Rome Statute requested. Any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily went into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks”
Two things with these preceding paragraphs. 1) The entire point of the Rome Statute is to bring prosecutions when states refuse to. A state that refuses is certainly not going to make a request. Bolton’s logic is beyond flawed, it is self-canceling. 2) the dry observation the USA’s own investigative conclusions concerning the 9/11 attacks, particularly as relates to WTC Building 7, is as flawed as, and only less far-fetched than, a proposal space weapons were responsible.
“The ICC prosecutor has requested to investigate these Americans for alleged detainee abuse, and perhaps more – an utterly unfounded, unjustifiable investigation”
This phrase in Bolton’s diatribe overlooks the fact of the John Yoo (Yoo, a Federalist Society member, may well have been in the audience) “torture memos” and the USA’s authorizing torture as a matter of policy
“Today, on the eve of September 11th, I want to deliver a clear and unambiguous message on behalf of the president of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
“We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.
“We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
“The United States bases this policy on five principal concerns about the court, its purported authority, and its effectiveness.
“First, the International Criminal Court unacceptably threatens American sovereignty and US national security interests. The prosecutor in The Hague claims essentially unfettered discretion to investigate, charge, and prosecute individuals, regardless of whether their countries have acceded to the Rome Statute”
This first ‘principle concern’ is not only disingenuous but contains incoherent logic. There is no threat to American sovereignty except that Bolton is claiming the USA is, example given, de facto Afghanistan’s sovereign overlord in what would amount to a feudal sense of fealty. If, in actuality, the USA were present at the discretion of a de jure Afghan government, they have placed themselves under the applicable laws of Afghanistan, inclusive of the Rome Statute. Bolton doesn’t mention this but the American contingent of NATO having ‘granted’ itself immunity in Afghanistan is irrelevant to the ICC except Afghanistan were to have withdrawn for the Rome Statute.
“The court in no way derives these powers from any grant of consent by non-parties to the Rome Statute. Instead, 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. It certainly has no consent whatsoever from the United States”
To reiterate a former point, Bolton cannot seem to grasp if the Americans avoid violating the Geneva Conventions and even more to the point, quit with its’ (often uninvited) military adventures abroad, there would be no controversy.
“As Americans, we fully understand that consent of the governed is a prerequisite to true legal legitimacy, and we reject such a flagrant violation of our national sovereignty”
It follows, Bolton is, in no uncertain terms, claiming the the USA’s sovereignty extends beyond the USA’s borders. Bolton’s claim is USA sovereignty extends as far as the USA can flex its’ military might. The only other way to read this is, he cannot read a map and has no inkling where the USA ends and other national jurisdictions begin.
“To make matters worse, the court’s structure is contrary to fundamental American principles, including checks and balances on authority and the separation of powers. Our founders believed that a division of authority among three separate branches of government would provide the maximum level of protection for individual liberty”
Which extra-territorial American individual liberty is that? Again, Bolton cannot seem to grasp there are other nations with entirely differing cultures, philosophies and laws, possessed of their own inherently equal sovereignty which Americans, present as alien citizens, must submit to.
“The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch – the Office of the Prosecutor – is an organ of the court. The framers of our constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. Other governments may choose systems which reject the separation of powers, but not the United States”
In other words, other countries systems are inferior to the USA in Bolton’s view. It should be noted here that ‘American Exceptionalism’ is synonymous to ‘American Empire’ and was a concept born twin to “Manifest Destiny” or the idea the USA is Über Alles.
“There are no adequate mechanisms to hold the court and its personnel accountable or curtail its unchecked powers when required
“ICC proponents argue that corrupt or ineffective judges can be removed by a two-thirds vote of parties to the Rome Statute and that a prosecutor can be removed by a majority vote.
“However, I ask everyone in the room today: would you consign the fate of American citizens to a committee of other nations, including Venezuela and the Democratic Republic of the Congo, and entities that are not even states, like the Palestinian Authority?
“You would not. I would not. And this Administration will not”
America Über Alles. As a USA citizen with a reasonable grasp of how this nation, the USA, had been philosophically founded, Bolton’s characterizations can only be described as grotesque caricature.
“The ICC’s Assembly of States Parties cannot supervise the court any more than the United Nations General Assembly can supervise the UN bureaucracy.
“Recent allegations of mismanagement and corruption among ICC personnel make this perfectly clear. The first prosecutor elected by the Assembly of States Parties attempted to protect a high-ranking government official from prosecution, assisted a businessman with links to violations in Libya, and shared confidential court documents with Angelina Jolie.
“In short, the International Criminal Court unacceptably concentrates power in the hands of an unchecked executive, who is accountable to no one. It claims authority separate from and above the constitution of the United States”
Let’s juxtapose the corruption and accountability of the ICC to the corruption and accountability of the Pentagon. The result would look like the kid who stole ten cents candy compared to the Keating Five & fleecing thousands of investors for billions of dollars in the saving & loan scandal.
“It is antithetical to our nation’s ideals. Indeed, this organization is the founders’ worst nightmare come to life: an elegant office building in a faraway country that determines the guilt or innocence of American citizens”
No, the founders’ worst nightmare was stated by Benjamin Franklin when he answered the crowd’s demand to know what form of government would be forthcoming from the American Constitutional Convention with “A republic. If you can keep it.” John Bolton is evidence prima facie we couldn’t keep our republic, it has been handed to neo-corporate-fascism.
“Second, the International Criminal Court claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the court’s unfettered powers.
“The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC. Had the ICC existed during the Second World War, America’s enemies would no doubt be eager to find the United States and its allies culpable for war crimes for the bombing campaigns over Germany and Japan”
Well, firebombing civilian areas for sake of ‘demoralizing’ the enemy is a war crime by definition. Firebombing of Dresden, famously written about by Kurt Vonnegut in his ‘Slaughterhouse Five” is widely regarded as a war crime, even among USA academics, and then there’s “Operation Meetinghouse, which was conducted on the night of 9–10 March 1945, is regarded as the single most destructive bombing raid in human history. 16 square miles (41 km2) of central Tokyo were destroyed, leaving an estimated 100,000 civilians dead and over 1 million homeless.”
“The “crime of aggression” could become a pretext for politically motivated investigations. Was the mission of US Navy SEALs that killed Osama bin Laden in Pakistan a crime of aggression? What about the US and coalition strikes in Syria to protect innocent children from chemical weapons? How about US military exercises with allies and partners around the world? Or Israel’s actions to defend itself on countless occasions?”
The Osama raid, from a juridical point of view, would be a targeted assassination. The Syria strikes might qualify, particularly in case of false flag chemical attacks sponsored by NATO associated actors but Bolton could never admit he knows this. The military exercises angle is patently cute, that is until a military exercise were to be cover for going live with surprise attack (an expressed concern of North Korea.) As for Israel, we can let an Israeli citizen speak to Bolton’s nonsense:
“For refugees, camps were shelters for the reconstruction of personal and social life, but were also seen as sites of great political significance, the material testimony of what was destroyed and ‘all that remains’ of more than four hundred cities, towns and villages forcefully cleansed throughout Palestine in the Nakba of 1947-9. This is the reason refugees sometimes refer to the destruction of camps as ‘the destruction of destruction.’ The camp is not a home, it is a temporary arrangement, and its destruction is but the last iteration in an ongoing process of destruction.
“This rhetoric of double negation – the negation of negation – tallies well with what Saree Makdisi, talking about the Israeli refusal to acknowledge the Nakba, has termed ‘the denial of denial’, which is, he says, ‘a form of foreclosure that produces the inability – the absolutely honest, sincere incapacity – to acknowledge that denial and erasure have themselves been erased in turn and purged from consciousness.’ What has been denied is continuously repeated: Israel keeps on inflicting destruction on refugees and keeps on denying that a wrong has been done” –Eyal Weizman: ‘The Least Of All Possible Evils’ (Humanitarian Violence From Arendt To Gaza)
“In the years ahead, the court is likely only to further expand its jurisdiction to prosecute ambiguously defined crimes. In fact, a side event at the Assembly of States Parties recently included a panel discussion on the possibility of adding “ecocide”, environmental and climate-related crimes, to the list of offenses within the court’s jurisdiction.
“And here we come directly to the unspoken but powerful agenda of the ICC’s supporters: the hope that its essentially political nature, in defining crimes such as “aggression,” will intimidate US decision-makers and others in democratic societies.
“As we know, the ICC already claims authority over crimes committed in States Parties, even if the accused are not from nations that have acquiesced to the Rome Statute.
“The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats”
“ecocide” is a specialty of the audience Bolton is pitching his aggression to, the Federalist Society is where you’ll find USA based multinational minerals extraction stockholders rubbing shoulders with the military-industrial complex stockholders who concurrently become richer via strong-arm robberies of weaker nations around the world for the extraction people. Bolton is singing to a choir of major sociopath personalities whose wealth (and growing it) is more important to the lot of them than any crime committed in process of pursuing that wealth. Small wonder people with a conscience would hold aside conversations on the future of justice in an environmental context.
“Third, the International Criminal Court fails in its fundamental objective to deter and punish atrocity crimes. Since its 2002 inception, the court has spent over $1.5bn while attaining only eight convictions.
“This dismal record is hardly a deterrent to dictators and despots determined to commit horrific atrocities. In fact, despite ongoing ICC investigations, atrocities continue to occur in the Democratic Republic of the Congo, Sudan, Libya, Syria, and many other nations.
“The hard men of history are not deterred by fantasies of international law such as the ICC. The idea that faraway bureaucrats and robed judges would strike fear into the hearts of the likes of Saddam Hussein, Hitler, Stalin, and Gaddafi is preposterous, even cruel. Time and again, history has proven that the only deterrent to evil and atrocity is what Franklin Roosevelt once called “the righteous might” of the United States and its allies – a power that, perversely, could be threatened by the ICC’s vague definition of aggression crimes”
To begin, if the USA were not, as a matter of policy, blocking the court at every opportunity (one presumes the USA clandestine services could be involved, with a string of dead witnesses and the relevant-impudent war criminal running a quasi-state hosting Camp Bondsteel, example given), rather jointly pursuing justice, the success rate should have been considerably stronger. Then we have to notice the USA’s clandestine services paramilitary and/or military fingers have been involved with stirring the pot in “Congo, Sudan, Libya, Syria and many other nations”, and in the immediate preceding paragraph you could substitute the names George, Condoleezza, Barack, and Donald and the description ‘cruel’ is a good fit.
“Thus we see paradoxically that the dangers of the International Criminal Court stem from both its potential strength and its manifest weakness”
I would prefer to think of the court’s future as one of ‘manifest strength.’
“Fourth, the International Criminal Court is superfluous, given that domestic US judicial systems already hold American citizens to the highest legal and ethical standards. US service members in the field must operate fully in accordance with the law of armed conflict. When violations of law do occur, the United States takes appropriate and swift action to hold perpetrators accountable. We are a democratic nation with the most robust system of investigation, accountability, and transparency in the world. We believe in the rule of law, and we uphold it. We don’t need the ICC to tell us our duty or second-guess our decisions”
Huh. I can only wonder what that has to do with the USA aggressively, proactively, protecting it’s criminals tied to the renditions (kidnapping for delivery to torture) program from prosecution; unpunished at home with arrest warrants in Germany and Italy outstanding.
“ICC proponents argue that robust domestic judicial systems are fully consistent with the court because of the so-called complementarity principle. According to its supporters, the ICC functions only as a “court of last resort”. If nations have taken appropriate steps to prosecute perpetrators of crimes, the ICC will take no further action”
Right, see preceding. If the USA had properly prosecuted its’ criminals, there would be no action taken by the ICC. But if criminality is your fundamental nature, you could easily be a Federalist Society member in agreement with John Bolton.
“And yet, there is little precedent for the ICC to determine how to apply the complementarity principle. How is the ICC prosecutor to judge when this principle has been met? Under what circumstances will the ICC be satisfied? How much sensitive documentation would the ever-toiling bureaucrats in The Hague demand from a sovereign government? And, who has the last word? If it’s the ICC, the United States would manifestly be subordinated to the court”
Not if the USA would keep its nose clean per Geneva Conventions and keep its’ nasty people out of other nations business, because there’d be no case to be subordinated to.
“If the ICC prosecutor were to take the complementarity principle seriously, the court would never pursue an investigation against American citizens, because we know that the US judicial system is more vigorous, more fair, and more effective than the ICC. The ICC prosecutor’s November 2017 request, of course, proves that this notion, and thus the principle of complementarity is completely farcical. The ICC prosecutor will pursue what investigations it chooses to pursue, based upon its own political motives, and without any serious application of the complementarity principle”
“more vigorous, more fair and more effective” is a rank lie in a nation where non-violent offenders are incarcerated in for profit prisons with political (lobbyists & $$$) incentive to keep them there and, where bankers who turned families out on the street via fraudulent mechanisms walk free and constitutional protections seem to entirely depend on how much money you have, for instance the indigent whose court appointed attorney slept through his murder trial and the appellate court could find no problem with that… and what about a sitting Supreme Court justice (then appellate court judge) having let an innocent man rot an extra 8 years in prison because of a procedural flaw where the evidence exonerating him wasn’t brought to the court’s attention within the rules deadline, the USA appears to have buried that case with ‘search engine optimization.’
“Fifth, the International Criminal Court’s authority has been sharply criticized and rejected by most of the world. Today, more than 70 nations, representing two-thirds of the world’s population, and over 70 percent of the world’s armed forces, are not members of the ICC”
Bolton’s shamelessness is beyond adequate description. One nation, China, is at the core of his statistic. Beyond this, more than 120 nations are signed on to the Rome Statute.
“Several African nations have recently withdrawn or threatened to withdraw their membership, citing the disproportionate number of arrest warrants against Africans. To them, the ICC is just the latest European neocolonial enterprise to infringe upon their sovereign rights”
This criticism is uttered by the most crass hypocrite to ever occupy the role of National Security Advisor for the USA. How’s that? One acronym that describes neocolonialism in Africa on steroids: The Pentagon’s AFRICOM.
“Israel too has sharply criticized the ICC. While the court welcomes the membership of the so-called “State of Palestine”, it has threatened Israel – a liberal, democratic nation – with investigation into its actions to defend citizens from terrorist attacks in the West Bank and Gaza. There has also been a suggestion that the ICC will investigate Israeli construction of housing projects on the West Bank”
Simply stated, “Yinon Plan” should be adequate rebuttal.
“The United States will always stand with our friend and ally, Israel. And today, reflecting congressional concerns with Palestinian attempts to prompt an ICC investigation of Israel, the State Department will announce the closure of the Palestine Liberation Organization office here in Washington, DC”
Well, this recalls the time HAMAS won the election in Gaza and the USA reacted by refusing to recognize the outcome. Palestinians get the shaft coming and going in their dealings with the USA-Israel axis (Yinon plan.)
“As President [Ronald] Reagan recognized in this context, the executive has “the right to decide the kind of foreign relations, if any, the United States will maintain”, and the Trump administration will not keep the office open when the Palestinians refuse to take steps to start direct and meaningful negotiations with Israel. The United States supports a direct and robust peace process, and we will not allow the ICC, or any other organization, to constrain Israel’s right to self-defense”
Right, that why caches of Israeli weapons were discovered to have been in the possession of Islamic State in Syria, ‘self-defense.’ Maybe the ICC will have a look into that at some point (someone certainly should.)
“In sum, an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority.
“Americans can rest assured that the United States will not provide any form of legitimacy or support to this body. We will not cooperate, engage, fund, or assist the ICC in any way. This president will not allow American citizens to be prosecuted by foreign bureaucrats, and he will not allow other nations to dictate our means of self-defense.
“We take this position not because we oppose justice for victims of atrocities, but because we believe that perpetrators should face legitimate, effective, and accountable prosecution for their crimes, by sovereign national governments”
Again, lost on Bolton is the fact the ICC only prosecutes when national governments refuse to.
“In April of 2016, it was right here, at the Mayflower Hotel, that President Trump gave his first major foreign policy address during his campaign. At that time, candidate Trump promised he would “always put the interests of the American people and American security above all else””
“Today, it is fitting that we reassert this fundamental promise within these walls. This afternoon, we also make a new pledge to the American people.
“If the court comes after us, Israel or other US allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities:
“We will negotiate even more binding, bilateral agreements to prohibit nations from surrendering US persons to the ICC. And we will ensure that those we have already entered are honored by our counterpart governments.
“We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.
“We will take note if any countries cooperate with ICC investigations of the United States and its allies, and we will remember that cooperation when setting US foreign assistance, military assistance, and intelligence sharing levels.
“We will consider taking steps in the UN Security Council to constrain the court’s sweeping powers, including ensuring that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute.
“This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom. We will stand up for the US constitution abroad, just as we do at home. And, as always, in every decision we make, we will put the interests of the American people first”
In short, in Bolton’s view of the world, the criminality of American empire is über alles, having little or nothing to do with the several foreign organs of the Unites States keeping a clean nose abroad, let alone staying home and minding its own business.
A former Special Forces Sergeant of Operations and Intelligence, Ronald Thomas West is a retired investigator (living in exile) whose work focus had been anti-corruption. Ronald is published in International Law as a layman (The Mueller-Wilson Report, co-authored with Dr Mark D Cole) and has been adjunct professor of American Constitutional Law at Johannes Gutenberg University, Mainz, Germany (for English credit, summer semester 2008.) Ronald’s formal educational background (no degree) is social psychology. His therapeutic device is satire.
Contact: penucquemspeaks@googlemail.com
Ronald Thomas West 