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).
   

 

 

 

 

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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