US threatens the ICC with sanctions

Washington is issuing an ultimatum to the World Court if it chooses to prosecute American citizens.

Background

The International Criminal court (ICC) investigates and brings to justice people responsible for genocide, crimes against humanity, and war crimes, intervening when national authorities cannot or will not prosecute.

The ICC was established by the Rome Statute in 2002, but the US did not ratify it as President George W. Bush opposed the body. Current US National Security Adviser Mr. Bolton served in the Bush administration, notably as ambassador to the UN from 2005.

The Rome Statute has been ratified by 123 countries, including the UK, leaving more than 70 as non-members. President Barack Obama sought to develop co-operation with the ICC. Some African countries have called for a withdrawal from the ICC due to its unfair treatment of Africans.

Analysis

The US has threatened sanctions against the International Criminal Court if it goes ahead with prosecutions against Americans. The court is currently considering prosecuting US servicemen over alleged detainee abuse in Afghanistan.

National Security Adviser John Bolton, who has long been an outspoken critic of the court, called the court "illegitimate" and vowed that the US would do everything "to protect our citizens". The US is among dozens of nations that have not joined the 2002-founded court.

In his tirade against the court, Mr. Bolton said it was a threat to "American sovereignty and US national security", lacked checks and balances, claimed "jurisdiction over crimes that have disputed and ambiguous definitions" and failed to "deter and punish atrocity crimes". Additionally, it is also "superfluous" as the US administration did "not recognise any higher authority than the US Constitution". Mr. Bolton said: "We will not co-operate 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."

White House spokeswoman Sarah Huckabee Sanders backed Mr Bolton, saying President Donald Trump would use "any means necessary to protect our citizens [and] those of our allies from unjust prosecution from the ICC".

The sanctions would allow the US to bar ICC judges and prosecutors from entering the US. Bolton also said that their funds in the US would be frozen. "We will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans," Mr. Bolton said. More "binding, bilateral agreements" would be signed to stop countries submitting US citizens to the court's jurisdiction.

It is interesting to note that Bolton’s attack against the ICC’s jurisdiction on American citizens could stem from his fear of the court prosecuting former Bush administration officials. The Abu Gharib incident provides sufficient evidence for the ICC to initiate war crime-related cases on high-ranking Bush administration officials, which could include Bolton himself.

Counterpoint

The ICC has had very little success and has convicted only one individual since 2002. In addition to its unclear jurisdiction, the ICC has been accused of being “racist” against a pool of largely African defendants who have been brought before the court.

However, Bolton’s claim that the court does not enjoy jurisdiction against American citizens is technically correct. As the United States has not signed or ratified the Rome Statute, it has not given its express consent for the court to exercise jurisdiction over American citizens. Despite the politics of the court, the US has a technical standing in their dispute with the ICC.

Assessment

Our assessment is that Bolton’s attack on the ICC is a knee-jerk reaction to its expansion of the court’s jurisdiction. We believe that the ICC  requires universal consent as the basis of any legal action, which has not happened so far. We feel that the ICC will continue to prosecute individuals based on their crimes, and not their nationalities.