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What John Bolton Gets Wrong About the ICC

John Bolton, the National Security Adviser in the Trump administration, does a grave disservice to the rule of law in the world by attacking the International Criminal Court in the Hague and announcing that the judges, prosecutors and supporters of this broadly-supported judicial body would be arrested, prosecuted and have their property confiscated in the U.S. if the Court undertakes to investigate a complaint that any American committed war crimes in Afghanistan, regardless of the evidence in any such case, the fairness of the Court’s deliberative process, or the absence of any significant U.S. action to investigate or prosecute such claims in our own courts.  Mr. Bolton went further by calling the Court an “illegitimate body” and announcing that similar U.S. sanctions would also be applied to Court personnel and supporters if the Court considered charges against Israel or unspecified other U.S. allies, making clear that his attack on the Court did not reflect a reasoned analysis of any risks the Court actually poses to U.S. citizens.

Mr. Bolton’s initial error is to portray the Court as a body created to punish the U.S. (and Israel) for protecting their citizens from foreign threats.  That, however, is plainly false. Similar to the Nuremberg Tribunal established by the U.S. and its allies in 1945, the International Criminal Court was created to provide a judicial remedy for the gravest crimes committed by government officials (and insurgent groups) against civilians and others – crimes that would otherwise escape prosecution by the domestic courts of any country.  The Rome Statute, establishing the Court, has been ratified by 123 countries (the U.S. initially signed but failed to ratify that Statute and Mr. Bolton later tried to “unsign” it on behalf of the U.S.) because they recognize that, unchecked, such atrocity crimes threaten the entire international order and undermine our mutual commitment to law and human decency. 

Mr. Bolton’s next error is to fail to recognize that the Court’s carefully negotiated judicial procedures, while not perfect, provide by any standard significant protections to defendants, including substantial protection against politically-motivated prosecutions.  He also fails to acknowledge that, because of the “complementarity” provisions of the Rome Statute, the Court simply has no jurisdiction over cases in which a nation’s domestic courts investigate and adjudicate similar complaints against its own citizens even when, unlike the U.S., that nation has accepted the Court’s overall jurisdiction.  Thus the surest way for the U.S. to assure that its own citizens (including members of the armed services) are never unjustly tried for atrocity crimes abroad is for our own government to enforce our domestic laws prohibiting such actions and, where those laws are violated, to assure that they are prosecuted fairly in our own courts.

Mr. Bolton’s final error is to believe that the U.S. can live peacefully in a world where others are required to comply with the law but we are not.  Laws, both at home and abroad, are an essential part of the modern world and our best way of enforcing minimum standards of human decency by government and insurgent leaders.  The International Criminal Court is an important step in that process, and Mr. Bolton’s unfortunate effort to demean the Court publicly is unworthy of our nation’s commitment to a more peaceful and lawful world.

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The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.