Last week, National Security Advisor John Bolton sent a strongly worded message to the International Criminal Court (ICC). He exhorted, “The U.S. will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” Given this unequivocal rebuke, what options does the ICC have for moving forward and what is the end game here?
By way of background, one must understand that the US and the ICC have long had an uneasy relationship at best. President Clinton initially signed the Rome Statute on the ICC with the concern that the court might commit jurisdictional overreach, but defended that being a part of the ICC would be the best way to curb the ICC’s possible excesses. Wary of such an approach and generally skeptical about this form of global governance, the Bush administration reversed course sending Bolton (then a State Department official) to the Hague to unsign the treaty. The United States also demanded and received, albeit temporarily, blanket immunity for its peacekeepers. Congress enacted the American Servicemembers’ Protection Act which authorized invasion of the Hague to liberate any US citizens held by the ICC and cuts in military assistance to certain countries unwilling to sign Article 98 agreements. That said, under Bush’s second term, the administration stopped trying to aggressively undermine the ICC and even provided some needed support. For instance, it declined opportunities to quash the Sudan genocide investigation, prevented China from blocking the country’s referral, and waived earlier aid restrictions to ICC members.
Such a spirit of cooperation continued under the Obama administration, though behind the scenes, relations may have soured over the possible investigation into US wrongdoing. As early as 2009, the ICC began floating the possible prosecution of US individuals for actions in and related to Afghanistan. Then prosecutor Luis Moreno Ocampo suggested the focus of a US-based investigation would be on “acts of torture, cruel treatment, outrages on personal dignity, rape, and sexual violence against conflict-related detainees in Afghanistan and other locations, principally in the 2003–04 period.” Such an investigation was to include the treatment of at least 54 detainees by military and 24 by CIA including those who were waterboarded. Targets of such an investigation would include those “who devised, authorized, or bore oversight responsibility for the implementation . . . of the interrogation techniques.” The Obama administration chose to deal quietly with the possible ICC investigation. Former US Ambassador Stephen Rapp’s public statements support speculation that the administration might have emphasized two points behind the scenes: first, that the scale of possible US crimes did not warrant attention of an international court and second, that the Dunham investigation into detention practices was sufficient and fulsome.
Despite any diplomatic maneuvering, by November 2017, ICC prosecutor Fatou Bensouda concluded that there was a “reasonable basis to believe war crimes and crimes against humanity were committed in Afghanistan and that all sides in the conflict would be examined including members of the US armed forces and Central Intelligence Agency.” This meant that the ICC had passed through several of the required phases necessary to request authorization from the ICC’s Pre-Trial Chamber to initiate investigation. These phases include: (1) filtering out those cases that would be manifestly outside the ICC’s jurisdiction, (2) determining whether preconditions to the exercise of jurisdiction were satisfied and reasonable basis for determining the crimes fit within the ICC’s subject matter jurisdiction, (3) assessing the cases admissibility in terms of complementarity and gravity, and (4) engaging in an “interests of justice” consideration in order to formulate final recommendation.
That leads us to the modern day. Having completed the four phases and the ICC prosecutor’s issuance of a final recommendation asking for an investigation, the United States is waiting to see whether the Pre-Trial Chamber will authorize it. As mentioned above, Bolton announced the Trump administration’s aggressive policy of non-participation and extraordinary, sweeping possible sanctions for pursuit of prosecution including a ban on ICC judges and prosecutors from entering the United States, sanctions of their funds in the US financial system, and prosecutions in the US criminal system, along with the same for “any company or state that assists an ICC investigation of Americans.” After Bolton’s speech, the ICC released a statement commenting that “The ICC, as a court of law, will continue to do its work undeterred, in accordance with these principles and the overarching idea of the rule of law.” Given this seeming impasse, I’m curious about the end game for the ICC in this situation.
1. Actual prosecution of US officials
I rate this outcome as asymptotically approaching zero. Although Bolton’s remarks reflected a sharp departure from the Obama administration’s quiet diplomacy on this issue, no prior American administration was going to allow a prosecution of its own troops by the ICC, and no future administration is likely to either. Even should a future president be surprisingly supportive (and indifferent to the massive domestic political fallout), any foreseeable Congress would enact legislation to make this option unbearably costly. Instead, should the ICC proceed to issuing indictments, I would think any individuals at risk of being prosecuted would have long since been removed from countries where there was any chance of their being handed over. What I’m suggesting is fairly obvious to even the casual observer, and I feel certain the ICC prosecutor has not acted in the hopes that such a prosecution would take place.
2. The Pre-Trial Chamber would decline the recommendation
Even though the ICC offered a final recommendation, the Pre-Trial Chamber could conclude on at least two different grounds not to authorize. First, the US could urge that the complementarity provision has been satisfied. It could offer a vigorous defense of the Dunham investigation in interrogation and other detention practices. It could also go further by reopening the investigation, allowing Congress more access to materials, broadening its scope, or even ultimately pursuing domestic prosecutions. Again, while this is theoretically possible, there is virtually zero probability under this administration, and it is not particularly likely under future administrations. The same political and pragmatic reasons President Obama seemed disinterested in pursuing formal legal accountability for Bush-era actors will probably hold for future presidents who will operate under similar constraints.
Second, the Pre-Trial Chamber could decline on gravity grounds concluding the scale of possible US crimes is insufficient to go forward. Many believe the ICC’s mandate is limited to the most extreme cases and thus would probably exclude investigations into horrific but small numbers of victims. That said, the ICC has some strong motivations to favor an expansive interpretation of its mandate and such a vision has been offered by a former prosecutor. In discussing the possible US investigation, then-prosecutor Ocampo stated, “we open investigations in the worst situation in the world and in some cases [countries], we investigate the worst situation,” suggesting a very broad mandate on the scope question. “I cannot allow that we are a court just for the Third World. If the First World commits crimes, they have to investigate. If they don’t, I shall investigate. That’s the rule and we have one rule for everyone.”
Of course, prosecutors and the Pre-Trial Chamber may view the end game differently or weigh the political consequences differently. The Pre-Trial Chamber could decide independent of the politics involved that the investigation ought not proceed. For instance, perhaps it is not too late for Afghanistan to provide its confidential Status of Forces Agreement to the ICC as a way to limit its jurisdiction. The fact that the prosecutors have been willing to go forward does not mean that the Pre-Trial Chamber will. Relatedly, the PTC may be more sensitive to US threats or diplomacy—though if this administration pursues only threats and no diplomacy as outlined in Bolton’s speech, I think that makes the PTC more, not less, likely to press forward.
3. Move forward knowing a prosecution won’t happen
I think this might be the ICC’s endgame. The ICC has already shown its resolve to pursue prosecutions stalled when defendants were unavailable and likely to remain so, as evidenced by its indictments for Sudanese president Al-Bashir and Ugandan rebel warlord Joseph Kony. Similarly, Russia is extremely unlikely to cooperate in investigation on Ukrainian–Russian war of 2008. Allowing the prosecution to move forward shows the ICC’s commitment for accountability for all and helps dispel its perceived Africa bias. Taking a stand against US exceptionalism may help shore up support among states looking to score political points against the US. In fact, the stronger the US reaction, the better the global perception of the court even if it gives some refuge to authoritarian governments.
At the same time that US obstruction and impasse may be a political net win for the ICC, it may also be a win for the Trump administration. Even as it bolsters support for the ICC, states are unlikely to be in a position to risk the Trump administration’s wrath and directly assist in a prosecution of US soldiers by handing them over. At the same time, Bolton’s speech and any follow-on commentary allow the Trump administration to pursue a low-cost (given its assessment of costs and benefits) and high-profile strategy to fulfill its America First campaign promise. As I wrote here, the Trump administration’s America First policy was supported by the base, but it was unclear whether the administration would actually follow through. Early strikes in Syria and prevarication on the use of torture and targeting terrorists’ families suggested perhaps not, but alongside other efforts to undermine global governance, Bolton’s speech facilitates Trump’s end game of Promises made, promises kept.