The International Criminal Court & the U.S. — Time for a Reassessment?

   What’s the deal with John Bolton blasting the International Criminal Court on the eve of 9/11 celebrations this week?
     He needs to get over his paranoia of international courts, international rules and multilateral institutions. These have developed over the last 120 years and are in the national interests of the United States. It’s part of “American Exceptionalism.”   It’s been a cornerstone of American foreign policy for years.  
     In fact, the United States might want to reconsider cooperating with the court, as it did during the Obama administration, and even joining it. With perhaps formal Senate ratified treaty reservations, as we go forth in this century.
     Russia and China are not members of the International Criminal Court. Do we really want to be the other major country not a member of the court? I also understand the concerns of the U.S. military and intelligence communities at the time of treaty came into force at the beginning o the U.S. military actions in Iraq and Afghanistan. We have already investigated and our conclusions are clear. It’s been almost twenty years. It’s time for a realistic reassessment.
     To answer the above question Bolton’s diatribe fits perfectly within President Trump’s and his administrations myopic view of laws, judges, courts and prosecutors — at all levels — state, federal and international. It’s only getting worse.
     It was strange the John Bolton gave his recent speech at the Federalist Society. This is a conservative legal group that has espoused from it founding respect for rules and courts. It is also strange that he gave his talk when nothing much has happened (concerning the U.S. and the ICC).  A lot has changed in the Middle East since 2002. This is when the Bush administration launched military operations in Iraq and Afghanistan.  It’s when the Bush administration along with the neocons decided to “unsign” the Treaty of Rome and not to present it to the U.S. Senate for ratification.
     Articles 5, 12 and 13  of the Treaty of Rome address the issue of jurisdictions. Article 5 lists as subject-matter jurisdiction the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 12 provides that as a precondition to jurisdiction a state needs to be a party to the treaty. It is Article 13 that seemingly expands that jurisdiction to crimes committed within a signatory state by forces of a country not a signatory of the treaty. (Think, Afghanistan.) If the U.S. Senate considers the treaty it can of course adopt a formal reservation precluding this provision.
     There is a whole range of specific treaty provisions concerning preliminary determinations by the court over admissibility and jurisdiction.  They provide for a broad range of state challenges. There is no reason that the United States could not challenge and successfully any issue concerning our use of force in Afghanistan. (Iraq is not a member of the court so no actions would lie in U.S. actions taken in Iraq.)
     Limited court appearances for the purpose of challenging jurisdiction is well known and accepted. Decisions of jurisdiction in international tribunals are always treated as preliminary matters before addressing merits of the dispute.
     It is in the national interest of the United States to cooperate generally with the court and if any challenges arise the U.S. has good arguments against the exercise of jurisdiction. Simply put — the U.S. is not a party to the Treaty of Rome and any exercise of jurisdiction violates the most basic provision of international law. If a state does not consent to jurisdiction, there is no jurisdiction. There is no violation of national sovereignty. In addition, even under the particular terms of the Treaty of Rome jurisdiction can be found not to exist. Appearance in a court proceeding does not mean consent to jurisdiction nor acceptance of any provisions of a treaty.
    We have a lot of lawyers in the Dept. of State and Justice Dept. that can make these arguments and prevail. We also have lawyers serving in U.S. embassies throughout the world that can be of assistance.
    The U.S. should not be afraid of legal challenges. In the long run they make for a better system.  It is in the national interest of the United States to stand up for our exceptionalism and the international rules-based system that is has championed. 


“Protecting American Constitutionalism and Sovereignty from the International Criminal Court.” (White House) (Sept. 10, 2018).





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These are a few recent articles of mine appearing in a leading international journal published in Korea focusing on China, trade and the WTO.


Malawer, “Trump’s China Trade Policies: Threats and Constraints.” 3 China and WTO Review 109 (No. 1) (March 2017).

Malawer, “Trump Trade — One-Year — Belligerent Rhetoric but Still Unsettled.” China and WTO Review (March 2018).

Malawer, “Trump’s Tariff Wars and National Security — A Political and Historical Perspective,China and WTO Review (Sept. 2018).


“Interview with Dr. Stuart Malawer – Excellence in International Law.” Journal of East Asia and International Law (Spring 2018).


International Lawyer Excellence Award (June 2018)




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GLOBAL TRADE AND THE U.S. — Some Op-Eds from the New York Law Journal (2011-2018).

    Global Trade

       Some of my articles (commentary) printed in the New York Law Journal (2011-2018).


Malawer, “Trump, Trade and National Security.” New York Law Journal (March 26, 2018).  

Malawer, “Looking at the Trans-Pacific Partnership.” New York Law Journal (December 8, 2015). 

Malawer “Confronting Chinese Economic Espionage with WTO Litigation.New York Law Journal (2014). 

Malawer, WTO Litigation and China.” New York Law Journal (2013). 

Malawer, “Chinese Corporate Investments & State Economic Development  in the U.S.” New York Law Journal (2011).

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U.S. in Global Affairs — U.S. and International Law — Op-Eds in the Richmond-Times Dispatch.

Law and World (Gavel)

     Some of my recent editorials /Op-Eds in the Richmond-Times Dispatch (2016-2018) on the U.S., global affairs and law.


Malawer, One Year In — Trump’s Trade Legacy,” Richmond Times-Dispatch (January 7, 2018). 
Malawer, “New Federalism, Foreign Affairs and Trump.Richmond-Times Dispatch (June 17, 2017). 
Malawer, “Trump, Trade and Virginia.” Richmond-Times Dispatch (Nov. 11, 2016).
Malawer, “Obama, Trade Enforcement and China.” Richmond-Times Dispatch (June 19, 2016).
Malawer, “US Global Tax and Global Trade.” Richmond-Times Dispatch (April 7, 2016). 
Malawer, “Is the Iranian Hostage Agreement Good Diplomacy and Law?” Richmond-Times Dispatch (January 31, 2016).

Some older ones …………….

         Malawer, “President Needs Fast-Track Authority.” Richmond Times Dispatch (Feb. 16, 2014).
         Malawer, “State Universities and Econ. Development.” Richmond-Times Dispatch (Jan. 29,  2012).
Malawer, “States Must Seek Direct Foreign Investment.” Richmond Times-Dispatch (June 19, 2011).









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New Article …. “Trump’s Tariff Wars.”


New article discussing President Trump’s tariff actions …………… Malawer, “Trump’s Tariff Wars and National Security — A Political and Historical Perspective,China and WTO Review (Sept. 2018).

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International Lawyer Interview — Stuart Malawer

Interviewed by the editor of the Journal of East Asia and International Law (Spring 2018) as its International Lawyer of distinction. Interview for International Lawyer.

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Trump’s Immigration Policy of Separation of Children from Parents and International Law —- Illegal?

     Lot of international law recognizing rights of children have developed since German actions during World War Two and Japanese Internment by U.S. during the war. For example, the 1951 Refugees Convention which the U.S. ratified. The Supreme Court needs to revisit the disgraceful Korematsu Case of the 1940s and end this illegal policy, now.

    It’s an affront to American values and international legal standards by the U.S. president. Seems to place the President and the U.S. as violating both treaty and customary international law.

     The courts should step in. Such law is the Supreme Law of the Land under Article VI of the Constitution. Trump’s actions are judicially reviewable. Executive foreign policy or national security arguments are simply bogus.


                                                         German separations during World War II.


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