The Trump Administration Policy Toward the International Criminal Court
29th March 2019
The Trump Administration Policy Toward the International Criminal Court Author: Clodagh McIlhatton Queen’s University Belfast.
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.  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 10th 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.  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.” 
The ICC began functioning on the 1st of July 2002
when the Rome statute came into force.  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,  and stated
its intention not to ratify the Rome Treaty.  The Bush administration also
brought in the American Service-Members’ Protection Act  which contained a
range of extremely Anti-ICC provisions, including the so called “Hague invasion
clause”  which authorised the use of military force to liberate any American
or citizen of a US-allied country being held by the ICC.  The US also
negotiated Security Council resolutions which granted immunity to US peace
keepers from prosecution by the ICC,  and obtained over 100 bilateral
immunity agreements,  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
 and the state departments legal advisor noted the US’s support of the
ICC’s investigation.  The Obama Administration also cooperated with the
However, come the time of Trumps election in 2016, Fatou
Bensouda, Prosecutor for the ICC released a report on preliminary examination
activities,  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.  Thus, probing the hostile
response from the Trump administration in September.
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
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.  In addition, the US
doesn’t seek permission from other countries to prosecute terrorists. 
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.  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. 
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.  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.  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.
 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.  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,  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.  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. 
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.
 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.  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
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.