The Trump Administration Policy Toward the International Criminal Court

The Trump Administration Policy Toward the International Criminal Court
Author: Clodagh McIlhatton
Queen’s University Belfast.

Introduction

The Trump administration’s policy towards international law was always going to be controversial. Trump made his disregard for international laws evident even throughout the campaign stage. [1] Thus, there was no doubt that when Trump became president, US hostility   towards international justice institutions would be heightened. Such predictions came to light on the 10^th of September 2018 with the “major foreign policy address” by Trump’s national security advisor, John Bolton, which focused mainly on outlining the US’ opposition to the ICC and its investigations. [2] Bolton’s speech consisted of extremely aggressive rhetoric, and a range of threats to the ICC which creates a plethora of problems for the US.

Thus, this briefing paper will provide an analysis of the Trump Administration’s issues with the ICC and decide whether the US’s hostile position is justified or whether this is just another way for the US to withdraw from International institutions to advance the rhetoric of “putting America first” at the consequence of international unrest. The paper shall conclude with recommendations for the US and other international actors in a bid to salvage a relationship between the US and ICC before the policies cause “irreversible damage.” [3]

Background

The ICC began functioning on the 1^st of July 2002 when the Rome statute came into force. [4] From the beginning the US’s relationship with the ICC was problematic. The Clinton administration signed the Rome statute in 2000, however it was not ratified. The start of the Bush Administration marked the beginning of a more hostile period with the ICC. Led by John Bolton, the administration unsigned the Rome Statute, [5] and stated its intention not to ratify the Rome Treaty. [6] The Bush administration also brought in the American Service-Members’ Protection Act [7] which contained a range of extremely Anti-ICC provisions, including the so called “Hague invasion clause” [8] which authorised the use of military force to liberate any American or citizen of a US-allied country being held by the ICC. [9] The US also negotiated Security Council resolutions which granted immunity to US peace keepers from prosecution by the ICC, [10] and obtained over 100 bilateral immunity agreements, [11] in which the signing countries guaranteed they would not surrender US citizens to the ICC.

These measures led other states to question why the US should be above the rule of law, and many of these measures damaged the US’ reputation internationally. However, in Bush’s second term, the administration changed its position, finding it more beneficial to work with the ICC. The US did not veto the UN Security Council referral of the atrocities in Dufar, Sudan to the ICC [12] and the state departments legal advisor noted the US’s support of the ICC’s investigation. [13] The Obama Administration also cooperated with the ICC.

However, come the time of Trumps election in 2016, Fatou Bensouda, Prosecutor for the ICC released a report on preliminary examination activities, [14] detailing evidence of war crimes by the US Central Intelligence Agency ( CIA) and US armed forces and in 2017 the prosecutor announced her decision to request judicial authorisation to commence an investigation into the situation in Afghanistan. [15] Thus, probing the hostile response from the Trump administration in September.

International Legal Issues

In his speech, Bolton points out a range of different reasons the US objects to the ICC, which gives rise to a range of different legal issues to be considered.

Bolton claims that the ICC investigation in Afghanistan “threatens American Sovereignty” and insinuates that the prosecutor does not have jurisdiction to investigate crimes by the US military and the CIA, as the US has not signed nor ratified the Rome Statute and the ICC has not gained consent from the US nor the individuals over which it “purports to exercise jurisdiction.”[16]

However, this argument is deeply flawed and is verging on being unreasonable. Foreign institutions regularly exercise jurisdiction over American citizens; for example, if an American was to commit a crime in Paris, they could be tried under the French legal system. [17] In addition, the US doesn’t seek permission from other countries to prosecute terrorists. [18] Thus, this argument demonstrates a degree of hypocrisy from the US, and it seems Bolton is using the scare tactic of “threatened sovereignty” to gain support for the administration’s anti-ICC agenda.

Furthermore, the ICC’s jurisdiction over crimes by US nationals in Afghanistan is clearly set out in the Rome Statute. Since Afghanistan has ratified the ICC’s Rome Statute, under article 12, the ICC has jurisdiction over genocide, crimes against humanity or war crimes committed by Afghan nationals and any crimes committed on Afghan territory. [19] Therefore, the ICC has every legal right to investigate crimes committed by Americans in Afghanistan, and Bolton’s claims appear to be clear misrepresentations and hyperbole. The use of such propaganda tactics to de-legitimize a vital judicial institution for prosecuting international crimes, undermines the rule of law, and needs to be addressed by the international community.

Bolton also states that one of the US’ principal concerns about the ICC is that it claims jurisdiction over crimes that have disputed definitions. Namely the crime of aggression. [20]

Bolton’s suggestion that the Crime of Aggression could even apply to the US is false. The Court cannot exercise its jurisdiction regarding crimes of aggression when it is committed by a national or on the territory of a state party that has not ratified or accepted the amendment. [21] Since the US is not party to the Rome statute let alone having ratified the amendment, and most certainly will not accede to the ICC having jurisdiction for this matter, the US cannot be prosecuted for the crime of aggression at all.

Thus, it would be fair to say, this supposed objection of the ICC, is once again just a scare tactic used by Bolton to garner support for his ICC rhetoric, and not an actual concern about the US’ security and sovereignty.

Bolton claimed that the ICC is “superfluous” since the US has an effective domestic legal system which already holds American citizens to the highest legal standards. [22] Thus, HE claims there is no need for the ICC to investigate and prosecute US crimes, as if there were crimes to be prosecuted, the American domestic legal system would do so.

Under the Rome Statute, there are certain circumstances in which a case to the ICC is considered inadmissible, one being when the case is being investigated or prosecuted by a State which has jurisdiction over it. [23] This is known as the principle of complementarity. The ICC is a ‘court of last resort’ and will not act unless the state is unwilling or genuinely unable to carry out the investigation or prosecution itself. [24] Bolton states that the US has “the most robust system of investigation, accountability and transparency in the world” questioning why the ICC still seeking to investigate crimes by Americans in Afghanistan?

In the Preliminary Examination report, the prosecutor noted that the US was capable of carrying out prosecutions itself in the civilian or military courts, [25] yet goes on to explain despite US records the prosecution could not identify any individual in the armed services prosecuted by courts martial for the ill-treatment of detainees. [26] Moreover the Department of Justice conducted a two-year review of allegations related to the abuse of detainees in the Custody of the CIA which reviewed allegations of ill-treatment of 101 detainees. Yet full criminal investigations were only conducted into the cases of two detainees that died in custody and both investigations did not lead to indictments or prosecutions due to a lack of evidence.

Thus, whilst on the face of things, it may appear that the US has a working domestic legal system, upon further investigation, the facts beg the question as to whether it has been effectively applied to the US Military and CIA who have committed war crimes. It does not seem from the information made available to the prosecutor for the preliminary investigation that US have done enough to satisfy the principle of complementarity. [27]

Recommendations and Conclusions

In conclusion, John Bolton’s speech is not about protecting US national security and sovereignty, but instead about ensuring that American military or CIA implicated in torture in Afghanistan are above the rule of law. [28] The US wishes to promote a policy of “exceptionalism,” where it cannot be held accountable for international crimes, but other states should. Therefore, the trump administration feigns objections to the ICC which under examination, don’t stand up.

Therefore, to the US I would recommend that they conduct a complementarity into the crimes committed in Afghanistan. If the US conducts its own investigation/prosecution into war crimes committed by US nationals in good faith, this will divest the ICC of Jurisdiction. [29] Also, in doing so the US would be endorsing the rule of law and ensuring it sets an example for the international community that war crimes will not be tolerated. Additionally, it would salvage a workable relationship with the ICC.

I would also remind the Trump Administration of the consequences of the harsh stance against the ICC during the Bush administration, and that the US found that a workable relationship with the ICC was preferable to hostility.

US allies should continue to demonstrate support for ICC. The administrations hostility can only go so far without support from other international actors. 123 states are members of the ICC including nearly every country in NATO. Therefore, if US allies continue their political, rhetorical and economic support for the ICC, the Trump administration is likely to find that such isolationist and exceptionalism approaches to international is counter-intuitive. [30]

Finally, it is not a hostile act for US allies to demand Trump discontinues his attack against the ICC and complies with international law principles and it does not threaten the US’ sovereignty and security in doing so either. It simply ensures the rule of law is upheld and that the ICC, can continue bringing perpetrators of mass atrocities to justice.

1. Ben Jacobs, “Donald Trump on Waterboarding: ‘Even if it doesn’t work, they deserve it.’” (The Guardian, 24^th November 2015) <https://www.theguardian.com/us-news/2015/nov/24/donald-trump-on-waterboarding-even-if-it-doesnt-work-they-deserve-it> Accessed 5^th November 2018.
2. John Bolton, National Security Advisor, ‘ Protecting American Constitutionalism and Sovereignty from International Threats’ (Address to the Federalist Society, Washington D.C., 10^th September 2018) < https://www.justsecurity.org/60674/national-security-adviser-john-bolton-remarks-international-criminal-court/> accessed 5^th November 2018.
3. “Why John Bolton vs Int’l Criminal Court 2.0 is Different from Version 1.0” Alex Whiting, 10^th September 2018. https://www.justsecurity.org/60680/international-criminal-court-john-bolton-afghanistan-torture/  Accessed 5^th November 2018.
4. The Rome Statute of the International Criminal Court (2002).
5. N4.
6. Curtis A. Bradley, “US announces Intent not to Ratify International Criminal Court Treaty” (2002) Volume 7 Issue 7 < https://www.asil.org/insights/volume/7/issue/7/us-announces-intent-not-ratify-international-criminal-court-treaty> accessed 5^th November 2018.
7. American Service-Members Protection Act (2002) Title 2 of Pub.L. 107–206, H.R. 4775, 116 Stat. 820.
8. Human Rights Watch , “U.S.: ‘Hague Invasion Act’ Becomes Law”  (2002) <https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law> accessed 5^th November 2018.
9. N7 SEC. 2008.
10. UNSC Res 1422 (12 July 2002) UN Doc S/RES/1422.
11. Human Rights Watch,  ‘ Bilateral Immunity Agreements’ (2003) <https://www.hrw.org/legacy/campaigns/icc/docs/bilateralagreements.pdf>  accessed 5^th November 2018.
12. UNSC Res 1593 (31 March 2005) UN Doc S/RES/1593.
13. John B. Bellinger, State Departments Legal Advisor “ The United States and International Law” (Speech at The Hague, Netherlands, June 6 2007)<https://2001-2009.state.gov/s/l/2007/112666.htm> accessed 5^th November 2018.
14. The Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2016’ (International Criminal Court 2017) <https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf>  accessed 5 November 2018.
15. International Criminal Court, Statement of ICC Prosecutor regarding her decision to request judicial authorisation to commence an investigation into the situation in the Islamic Republic of Afghanistan, 3^rd November 2017, <https://www.icc-cpi.int/Pages/item.aspx?name=171103_OTP_Statement>  accessed 5^th November 2018
16. N2.
17. Jennifer Trahan, “The Fallacy that attacking a judicial institution and its personnel protects Americans: A response to John Bolton’s Speech’ (Opinio Juris 12^th September 2018) < http://opiniojuris.org/2018/0its 9/12/the-fallacy-that-attacking-a-judicial-institution-and-its-personnel-protects-americans-a-response-to-john-boltons-speech/> accessed 6^th November 2018.
18. N18.
19. N4 Article 12.
20. N2.
21. ICC-ASP/16//L-10 (2017).
22. N2.
23. N4 Article 17 (1) (a).
24. N4 Article 17 (1) (a).
25. N15 219.
26. N15 220.
27. N4 Article 17.
28. N18.
29. N4 Article 17 (1) (a).
30. Rosa Brooks, “Friends Don’t Let Friends Drive Drunk: The Role of US Allies in Keeping the U.S. Honest, 48 Geo. J. Int’l L. 923 (2017).