The U.S. and “The Illegitimate” Court: A Complicated Relationship
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Photo: Under the guise of a battle for American constitutionalism and sovereignty, the U.S. aims to end international justice

The U.S. and “The Illegitimate” Court: A Complicated Relationship


On 10 September, at the Federalist Society, John Bolton stated that the U.S. would target the ICC (that from now on is “dead” to the U.S.): block its judges and prosecutors from entering the U.S., prevent them from launching legal proceedings, sanction funds and prosecute them in U.S. courts, if they proceed with their “unfounded” and “unjustifiable” investigation into alleged war crimes committed by U.S. troops in Afghanistan, although the ICC have already collected over 1 million testimonies from Afghans suing the U.S. and CIA.

“Literally, any day now the ICC may announce the start of a formal investigation against these American patriots who voluntarily signed in to go into harm’s way to protect our nation, our homes and our families in the wake of the 9/11 attacks,” he said. This, no doubt, is exactly what was necessary to be said to fire up the public to awaken patriotic feelings and start throwing “classical” American threats.

It wasn’t first time Bolton has crossed the Court. Like several other countries, the U.S. sees the court as a challenge to its constitutional authority. In 1998, Dr. Charles Rice, the late law professor at Notre Dame University, called the ICC “a monster” that “repudiates the Constitution, the Bill of Rights, and the Declaration of Independence and cancels the 4th of July,” the New American reported.

Nevertheless, on December 31, 2000 – the last day countries could become parties to the treaty without ratifying it – something made President Bill Clinton unexpectedly authorize a U.S. representative, U.S. Ambassador for War Crimes David Scheffer, to sign the 1998 Rome Statute establishing an International Criminal Court – a decision that was surprising even for the Congress.

Lucky for the United States, George W Bush was opposed to the ICC’s conception and did not ratify – or “unsigned” – the Rome Statute at the beginning of May, 2002, despite 123 other countries doing so. Thus, the U.S. joined Israel, China and Saudi Arabia in making such a decision based on the belief of its “unacceptable consequences for our national sovereignty.” Guess who was a key person working on that decision in the George W. Bush Administration? Correct: an Under Secretary of State, John R. Bolton.

Defending American citizens’ security was not the only reason why the U.S. shunned the ICC – it also concerned Mr. Bolton who had a vested interest in that case. In the years that followed, he spearheaded the signing of approximately 100 bilateral deals to prevent countries around the world handing Americans over to the ICC. That work, he said last Monday, “remains one of my proudest achievements.” None of those deals has ever been tested—no American has been indicted by the Court, let alone convicted. Not surprisingly, that  murmurs of an investigation into war crimes in Afghanistan that threaten to change this state of affairs were taken by Bolton very personally.

It’s really interesting to note that if the countries refused to offer the U.S. protection from the Court, the U.S. cut millions of dollars in military aid to them in retaliation. Many of the countries who lost funding were actually U.S. allies in the War on Terror, causing then Secretary of State Condoleezza Rice to say the policy was “sort of the same as shooting ourselves in the foot.”

But the Bush Administration found it insufficient to leave it at that. It passed into law the American Servicemembers Protection Act (ASPA) of 2002, commonly condemned and referred to as the “Hague Invasion Act” by its opposition. It allows the U.S. to “take all means necessary and appropriate” to release U.S. personnel being held by the ICC. In other words, the U.S. will shield its service members from imprisonment even if it means dropping in a Navy SEAL team to jailbreak them.

Though Human Rights Watch noted that one of the provisions of the bill allows the United States to assist international efforts to bring to justice those accused of genocide, war crimes or crimes against humanity — including efforts by the ICC. It still can be seen as saying “we will help you bring others to justice, but not us.”


The U.S. must have loved threatening other governments with cuts in aid, because in December 2004 Congress adopted the Nethercutt Amendment as part of the U.S. Foreign Appropriations Bill, the amendment that authorized far wider cuts than did ASPA – called by the Human Rights Watch “the most notorious and damaging aspect of the Bush Administration's anti-ICC policy” – for ICC states parties that refused to sign BIAs. The Nethercutt Amendment threatened over 50 governments with cuts in aid, some of the more significant cuts were Peru ($4 million), Ecuador (over $1 million), and Kenya (over $1 million).

Over time, after realizing that opposition to the Court, at times, conflicted with other important U.S. interests, the Bush Administration softened the intensity of its attacks on the Court. Nevertheless, the harm to U.S. credibility caused by its earlier approach to the Court was considerable.

In November, 2009, the U.S. officially opened diplomatic relations with the ICC by attending its first meeting of the ICC Assembly of States Parties in an observer capacity. In a year, the U.S. sent delegation to the first ICC Review Conference.

U.S. Ambassador at-large for Global Criminal Justice, Stephen Rapp, giving a speech at the ICC Assembly of States Parties/

In 2013 President Obama signed into law congressional legislation that expanded the U.S. State Department’s Rewards for Justice Program, which allows for rewards up to $5 million USD for information leading to the arrest, transfer, or conviction of ICC fugitives. In the same year, despite having no legal obligation to do so, the U.S. facilitated the transfer of Bosco Ntaganda to the ICC following his voluntary surrender at the U.S. Embassy in Rwanda. Three years ago the U.S. also helped to transfer senior LRA commander to the ICC to stand trial. Otherwise, the policy on the ICC remained the same.

So what’s happening today?

“The long-term goal of the Trump administration is clearly to attack the ICC’s legitimacy and pressure other countries to cut its funding and boycott it. This misguided and harmful policy will only further isolate the United States from its closest democratic allies — every other member of NATO except Turkey has joined the ICC. Bolton’s words of intimidation also give solace to war criminals and oppressive regimes seeking to evade consequences for their crimes,” reports the American Civil Liberties Union.

“We don’t recognise any authority higher than the US Constitution,” Mr Bolton has recently said. In saying “we”, he must have meant “me and Donald Trump” because, to date, even American people call for “pushing back against these dangerous actions.”

Author: USA Really