By Caleb H Wheeler
Lecturer in Law at Middlesex University, London
and author of the recently published book The Right to Be Present At Trial in International Criminal Law (Brill 2018)
Recently, the International Criminal Court (‘ICC’ or ‘the Court’) has increasingly found itself in the political spotlight. On 10 September John Bolton, a United States National Security Adviser, attacked the Court as ‘illegitimate’ and claimed that ‘for all intents and purposes, the ICC is already dead.’ Donald Trump reinforced those contentions in his address to the United Nations General Assembly on 24 September when he asserted that ‘the ICC has no jurisdiction, no legitimacy and no authority.’ This blog post will examine the context of Bolton and Trump’s statements about the legitimacy of the International Criminal Court in an effort to determine whether they were challenging its legitimacy vis-à-vis the United States or if they meant to question its overall legitimacy. It finds that the Court’s overall legitimacy is not in question but that it is very limited in how it can exert jurisdiction over the United States.
There is some basis for the argument that the International Criminal Court lacks legitimacy with regard to the United States. As a treaty-based legal institution, the International Criminal Court is limited to exercising authority only in the territory of those states that have consented to such an exercise of power. The United States is not a state party to the International Criminal Court and as such the Court can only apply jurisdiction over its populace in two situations. The first is if an American citizen commits a crime on the territory of a state that is a party to the Statute. The second would arise following a Security Council referral to the Court of a situation occurring in the United States. However, as a permanent member, the United States can veto any Security Council decision, making it functionally impossible that there ever will be such a referral. Further, The United States has negotiated over 100 bilateral agreements in which states parties to the Rome Statute have agreed that they will not surrender Americans found on their territory to the International Criminal Court. While it is not strictly true that the International Criminal Court can never exercise jurisdiction over Americans accused of international crimes, it can only happen under a narrow set of circumstances.
The context of Trump and Bolton’s statements may also suggest that they were specifically challenging the International Criminal Court’s legitimacy to act in relation to the United States. Trump’s comments were prefaced by the qualifier, ‘[a]s far as America is concerned…’ This statement can be interpreted in two ways. It could mean that the Court has no jurisdiction, legitimacy or authority when it comes to Americans or acts that take place on the territory of the United States. It could also mean that the United States rejects the jurisdiction, legitimacy, and authority of the Court in toto.
Bolton’s comments seem to confirm that American criticism of the International Criminal Court is largely focused on its perceived interference with state sovereignty. Not surprisingly, his comments are primarily designed to protect American interests, but he also argues against any possible interference by the Court with Israel’s construction of settlements in the West Bank. He also threatens sanctions against the Court if it attempts to initiate proceedings against ‘us, Israel or other US allies.’ While Bolton clearly dislikes the International Criminal Court as a whole, he is particularly concerned with the possibility that it might exercise judicial authority over citizens of states not party to the Court Statute. This is made clear in his summation in which he states, ‘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.’ Although the United States is not directly mentioned, it is apparent that the possibility that the Court might try to exert authority over the United States, and to a lesser extent Israel, is foremost in Bolton’s mind. Ultimately it should come as no real surprise that the United States would prioritize protecting its citizens over the interests of justice. The late Cherif Bassiouni predicted that the interests of states and Realpolitik would be the ‘principle obstacles to the effectiveness of the ICC.’
A much more complicated question is raised if Trump and Bolton meant to suggest that the International Criminal Court is generally illegitimate. Bolton, speaking on behalf of the president, challenges the overall legitimacy of the Court by attacking its ‘unfettered powers’ and for being structured in a way that he believes is ‘contrary to fundamental American principles’. A superficial reading of this statement leads to the conclusion that Bolton is asserting that the International Criminal Court lacks legitimacy only in relation to the United States. However, when placed in its larger context it becomes apparent that Bolton’s statement could have been meant to attack the legitimacy of the Court as a whole. In a journal article published in 2000, Bolton specifically stated that ‘the Court and the Prosecutor are illegitimate’ and he directly tied their lack of legitimacy to the way in which the Court is structured.Bolton expresses particular concern with what he characterises as the prosecutor’s ‘potentially enormous, essentially unaccountable powers’ that give her the ability to exercise jurisdiction over citizens of states that are not party to the Rome Statute. He also believes that the Court’s decision not to implement a tripartite structure, with three equal and co-extensive branches, means that it lacks the necessary checks and balances to adequately protect the liberty of individuals. Bolton further claimed, both in 2000 and 2018, that the Court’s Statute is so deeply flawed as to be irreparable. It is reasonable to believe that the comments made in September 2018 are a continuation of the position he first set out in 2000, and thus to conclude that the perceived problems with the Court’s structure and Statute impair its overall legitimacy. As Bolton was speaking in his official capacity as a national security adviser, and his comments were partially echoed by President Trump, one could infer that the United States believes that the International Criminal Court suffers from a fundamental lack of legitimacy.
Only weeks before Bolton’s speech, a group of 132 parliamentarians from five Southeast Asian states released a joint statement in which it called on the United Nations Security Council to refer Myanmar to the International Criminal Court for human rights abuses allegedly committed against the Rohingya ethnic group. That was followed on 25 September, a group of six South and North American states formally referredVenezuela to the International Criminal Court for international crimes allegedly being committed there. This referral and proposed referral act to contradict the United States’ position on the legitimacy of the Court. This is demonstrated by the fact that both groups believe that the International Criminal Court is the appropriate venue at which to prosecute the perpetrators of the crimes alleged. The Court’s legitimacy was bolstered by Canada’s president, Justin Trudeau when he asserted, ‘[t]he International Criminal Court has our full support and confidence.’ The Southeast Asian parliamentarians also implicitly recognized the legitimacy of the Court when they directly linked referral to the Court as the best pathway to accountability for the alleged perpetrators. These actions and statements leave no doubt that those nations involved still believe in the Court’s legitimacy.
Most importantly, the inherent legitimacy of the International Criminal Court is demonstrated by the fact that there are 123 states parties to the Court. This constitutes 64 percent of all members of the United Nations. Those 123 nations confirm their belief in the Court’s legitimacy by accepting the jurisdiction of the Court within their territory and over their nationals. Interestingly, Bolton tries to downplay this source of legitimacy in his remarks by suggesting that because 70 nations are not member states, and because of the large population of some of those states, ‘most of the world’ has rejected the Court.
The Court itself confirmed its own legitimacy in its recent decision on its jurisdiction over the crime against humanity of deportation as alleged against the government of Myanmar. In that decision, Pre-Trial Chamber I found that the International Criminal Court possesses ‘objective international personality’ as a ‘legal-judicial-institutional entity’ that is separate and apart from the legitimacy conferred upon it by the recognition of its states parties. That legitimacy is evidenced by the Court’s engagement and cooperation with both states parties and non-states parties alike. The United States is included amongst the non-states parties that have engaged and cooperated with the Court by virtue of its status as an observer state to the Assembly of States Parties of the International Criminal Court. In fact, at the most recent Assembly of States Parties the United States implicitly acknowledged the Court’s legitimacy when it identified the important role the International Criminal Court can play in ensuring that justice is delivered to the victims of international crimes.
The overall legitimacy of the International Criminal Court is not in doubt. Numerous international actors, including the government of the United States, have reconfirmed its legitimacy. Therefore, the comments made by Bolton and Trump must be viewed as a repudiation of the International Criminal Court’s ability to exercise jurisdiction over citizens of the United States. That being said, simply because the Court cannot exercise jurisdiction over Americans does not also mean it is illegitimate as far as the United States is concerned. What Bolton and Trump are really expressing is their disapproval with the manner in which the Court operates and their concern that it might exercise jurisdiction over American citizens in one of the small areas still open to it. In the end, these comments are really nothing more than rhetoric designed to achieve the political objective of undermining the Court at the expense of justice.
John R Bolton, ‘The Risks And Weaknesses Of The International Criminal Court From America’s Perspective’ (2000) 64(1) Law and Contemporary Problems 167, 169
Photos courtesy: Spencer Platt/Getty Images: Andrew Harnik/AP Photo: The International Criminal Court
Important post . many unbelievable complications here ,and just some few :
John Bolton , has probably relied also ( although not mentioned by him ) upon Amercian legislation , denying and forbidding any cooperation and assistance to the icc . here the :
” American service members’ protection
act of 2002 ”
Can be reached here :
Click to access aspa02.pdf
But hey , one should not forget , at the end of which , it is paradoxically stated clearly , I quote :
” sec. 2015. ø22 u.s.c. 7433¿ assistance to international efforts.
nothing in this title shall prohibit the united states from rendering assistance to international efforts to bring to justice saddam hussein, slobodan milosovic, osama bin laden, other members of al queda, leaders of islamic jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity. ”
End of qoutation :
So , when the American legislator dictates :
” ….. and other foreign nationals accused of genocide, war crimes or crimes against humanity. ”
It does refer to present days also . And who would do it ?? Only the ICC , and other ad hoc or hybrid International tribunals . So , the latter are legitimate ?? and not the former ?? It is ridiculous of course .
Bolton mentions , check and balance . But , check and balance has to do mainly with courts . The courts have last say . They are the very corp of check and balance . If the Supreme court , has ordered at the time , the president Nixon , to hand over records ( not having ” executive privilege on it ) then :
The president must comply . This is a court . Can be challenged only by higher court . The same concerning the ICC :
The prosecutor , has no power to initiate investigation , without the approval of pre trial chamber . So , that is the sole and ultimate check and balance . As in domestic court or judiciary . Done by a competent judge .
Well , we won’t stay young here .
And by the way , his speech generated , a request under ” Freedom of Information act ” by the ACLU . The petition or request can be reached here :
Click to access 2018.09.24._us-icc_foia.pdf
Just correction and clarification :
The pre trial chamber approval of investigation as mentioned by me , is based on article 15 (4 ) to the Rome statute .
And correction :
Instead of : ” the very corp ” should be of course : ” core ” .
Excellent analysis. right to the point
President Trump was indeed challenging the International Criminal Court’s legitimacy to act in relation to the United States, specially to their men in uniform