Last Friday the United States revoked the entry-visa for the International Criminal Court’s prosecutor, Fatou Bensouda of Gambia. In November 2017, Bensouda had asked ICC judges to authorize an investigation into alleged war crimes in Afghanistan by, among others, U.S. troops. Many human rights groups welcomed the request, but the court has not yet authorized an investigation.
The visa revocation comes as no surprise. Relations between the ICC and the United States had gotten better for a period, despite the fact that the United States is not a member state and does not recognize the court’s authority over Americans. But once Donald Trump took office, and especially after he appointed John Bolton as national security adviser last April, relations were almost certain to become more difficult.
The ICC prosecutes crimes that nations won’t take up themselves.
The ICC was established in 1998, although it took another four years to enter into force, as the world’s first permanent international criminal court. Its mandate is to prosecute individuals for genocide, crimes against humanity, war crimes and the crime of aggression.
The ICC has 122 member states, including Afghanistan. The court’s jurisdiction applies only if national courts are unwilling or unable to investigate or prosecute such crimes. When these conditions are fulfilled, the ICC system applies to cases in which the accused is a national of an ICC member state; where the alleged crime occurred in an ICC member state; or when the U.N. Security Council refers a case to it. Scholars have argued that the ICC’s existence deters abuses, especially by governments that want international legitimacy.
Here’s how the ICC was originally created
The U.S.-ICC relationship is complicated.
The United States has a long history of supporting international justice, including tribunals in Nuremberg, Yugoslavia, Rwanda, Cambodia and Sierra Leone. Initially, it worked to help create the court. However, even as it was signing the agreement in 1998 the U.S. government became concerned about sovereignty and having its own actions challenged; eventually it backed away.
In 2002, John Bolton, then an undersecretary for state under President George W. Bush, was the one who “un-signed” the ICC — a moment he called the happiest in his government service. At the time, Democrats and Republicans alike were opposed to subjecting the United States to the court’s jurisdiction. In 2002, members of both parties supported and passed the American Service-Members’ Protection Act, which blocked financial assistance to countries unless they signed agreements promising not to surrender Americans to the court. Many legal experts considered these agreements illegal and an “inexcusable attempt to gain impunity.” Afghanistan did sign a non-surrender agreement with the United States, but that does not prevent an investigation.
The protection act even authorized the use of military force to free any Americans who might come to be held in The Hague. Bolton led the subsequent campaign to secure the non-surrender agreements, which about 100 countries signed. However, as I found in research at the time, most countries that are rated as having high respect for the rule of law refused.
Over time, the U.S. relationship with the court mellowed. In Bush’s second term, his administration even supported some court investigations, particularly into the genocide in Sudan’s Darfur region. The Obama administration continued that constructive engagement.
Bolton wants to undermine the ICC.
When Bolton started as national security adviser in April 2018, observers knew that he would renew hostilities with the ICC. It did not take long.
In September, Bolton announced that the United States would “use any means necessary to protect our citizens and those of our allies from unjust prosecution by the illegitimate court.” He specifically mentioned Israel as an ally; the Palestinian Authority has proposed an ICC inquiry into Israel’s conduct in the Gaza Strip. For this, Bolton suggested that the United States might arrest ICC officials, “sanction their funds” and “prosecute them.”
On March 15, Secretary of State Mike Pompeo followed up by accusing the ICC of “attacking America’s rule of law,” and announced that the United States would revoke or deny visas to International Criminal Court personnel seeking to investigate alleged war crimes and other abuses committed by U.S. forces in Afghanistan and elsewhere.
This fight could have broader consequences for international justice.
Over the last several decades, international lawyers have built an international regime that is designed to protect human rights. Because the U.S denigration of the ICC comes on top of Trump’s declared support for torture, as well as his backing for strongmen like Filipino President Rodrigo Duterte and Russian President Vladimir Putin, observers worry that the attitude of the United States will erode other nations’ support for multilateral cooperation and the global rule of law.
Bolton’s initial speech has been widely condemned by U.S. allies, including the European Union. A group of 22 foreign ministers protested. Commentators on international law have called Bolton’s claims about ICC prosecutors’ scope and discretion “hyperbole and misrepresentation.” Some question whether prosecuting ICC personnel has any basis in U.S. law and even whether it is a violation of the ICC statute itself.
Human Rights Watch labeled the U.S. action “an outrageous effort to bully the court and deter scrutiny of U.S. conduct.” Bensouda herself vowed to continue to pursue her duties for The Hague-based court “without fear or favor.” A network of civil society groups in 150 countries have vowed to stay firm in supporting the Afghanistan investigation.
But Pompeo and Bolton are holding firm, as well. Pompeo threatened, “We are prepared to take additional steps, including economic sanctions, if the I.C.C. does not change its course.” Bolton is unlikely to back down. In November 2017, when talk of opening an investigation began, Bolton wrote in the Wall Street Journal that the United States should “strangle the ICC in its cradle” or at least tell the ICC prosecutor that “you are dead to us. Sincerely, the United States.”
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Judith Kelley is dean of the Duke University Sanford School of Public Policy, Terry Sanford Professor of Public Policy and Political Science, and author of “Scorecard Diplomacy: Grading States to Influence Their Reputation and Behavior” (Cambridge University Press, 2017).