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 past 120 years and are in the national interests of the United States. It’s part of “American Exceptionalism” and has 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. Perhaps it could do this with formal Senate 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 this court? I understand the concerns of the U.S. military and intelligence communities at the time that the treaty came into force at the beginning of the U.S. military actions in Iraq and Afghanistan. We have already investigated this, and our conclusions are clear. It’s been almost 20 years and time for a realistic reassessment.

     To answer the above question, Bolton’s diatribe fits perfectly within President Trump’s and his administration’s myopic view of laws, judges, courts and prosecutors — at all levels — state, federal and international. It’s only getting worse. Just read President Trump’s disparagement of the International Criminal Court in his recent speech to the General Assembly.

     It was strange the way that Bolton gave his speech at the Federalist Society. This is a conservative legal group that has espoused from its founding respect for rules and courts. It is also strange that he gave his talk when nothing much has happened. 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 jurisdiction. Article 5 lists as subject-matter jurisdiction the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 12 provides as a precondition to jurisdiction that a state needs to be a party to the treaty. Article 13 seemingly expands this 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 particular 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. The jurisdiction decisions 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 with the court, and if any challenges arise, the U.S. has valid 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 who can be of assistance.

    The U.S. should not be afraid of legal challenges. In the long run, they make for a better system.  For the first time various member states of the ICC have recently requested consideration of a prosecution. Specifically, five Latin American countries and Canada have requested the court to consider prosecuting Venezuelan officials for human rights abuses. Wesley Clark, former NATO Supreme Allied Commander,  declared that John Bolton was dead wrong. In fact, we have previously cooperated with the International Criminal Court in its investigations. The International Criminal Court is a historical development starting with war crimes trials by victorious countries after World War Two and prosecutions by ad hoc tribunals after the Yugoslav wars of the 1990s.

      It is in the national interest of the United States to stand up for our exceptionalism and the international rules-based system that it has championed. 


“Protecting American Constitutionalism and Sovereignty from the International Criminal Court.” (White House) (Sept. 10, 2018).
“Bolton is Dead Wrong on the ICC.” Washington Post (Sept. 25, 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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