By Philip Gourevitch
Is the Constitution of the United States facing an imminent existential threat? Judging from Bob Woodward’s reporting and the claims of last week’s unsigned Op-Ed in the Times, many, perhaps most, senior Trump Administration officials believe that it is. Now Donald Trump’s national-security adviser, John Bolton, has joined the chorus to say that you better believe it. But, unlike his colleagues, who spread their alarm anonymously, Bolton issued his warning at a Federalist Society lunch, on Monday, that was broadcast live on C-span. And, though others identify the danger to the Republic as coming from within, in the form of a rogue President, Bolton told a different story, of a looming threat from abroad, in the form of an “illegitimate,” “unchecked,” “supranational” conspiracy of “ ‘global governance’ advocates” so “antithetical to our nation’s ideals” that it amounted to “the Founders’ worst nightmare come to life.” This was Bolton’s first prominent public speech since he joined the Trump White House, in April. “I am here,” he said, “to make a major announcement on U.S. policy toward the International Criminal Court, or I.C.C.”
Last November, the I.C.C.’s prosecutor, Fatou Bensouda, asked the court’s judges to authorize an investigation of possible war crimes and crimes against humanity committed in Afghanistan since 2003, including allegations of torture by members of the U.S. military and agents of the Central Intelligence Agency. Bolton, who was at the time a fellow at the American Enterprise Institute, responded immediately with an op-ed in the Wall Street Journal: “The Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy. Even merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.” The rest of the column was a battle cry against the court—“America should welcome the opportunity, as in Churchill’s line about Bolshevism, to strangle the ICC in its cradle”—and Bolton’s speech this week was largely a rehash of that column, transposed from an advisory voice into the voice of the bully pulpit.
The judges’ response to the prosecutor is now due. “Any day now,” Bolton said in his speech, “the I.C.C. may announce the start of a formal investigation against these American patriots, who voluntarily signed on to go into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks. . . . An utterly unfounded, unjustifiable investigation.” He added, “I want to deliver a clear and unambiguous message on behalf of the President of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not coöperate with the I.C.C. We will provide no assistance to the I.C.C. And, certainly, we will not join the I.C.C. We will let the I.C.C. die on its own. After all, for all intents and purposes, the I.C.C. is already dead to us.”
Bolton’s bombast aside, however, this has been pretty much the attitude of every U.S. Administration regarding the possibility of an I.C.C. prosecution of Americans since 1998, when the United Nations adopted the treaty, known as the Rome Statute, for the establishment of the I.C.C. as a war-crimes tribunal, to be headquartered in The Hague. The treaty defined it as “a court of last resort,” meaning that it would only assert jurisdiction if and when the institutions of the state or entity that an accused person came from proved unable or unwilling to prosecute the alleged crime themselves. The Clinton Administration took this principle, known as “complementarity,” as a considerable reassurance, but, in negotiating the terms of the Rome Statute, it also sought to secure provisions to restrict the I.C.C.’s jurisdiction to cases in which the accused were from a nation that had ratified the treaty. Instead, the final statute allowed the court to prosecute any crimes that were committed on a treaty member’s territory, even if the accused had been deployed by a government that was not bound by the treaty. (While the United States is not a party to the treaty, Afghanistan, for example, is.) For this reason, Ambassador David Scheffer, who represented the Clinton Administration in Rome, argued that the United States should not sign the statute, testifying in Congress that it was unacceptable that American forces might be subject to prosecution under a statute that the U.S. did not ratify: “Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations, including humanitarian interventions to save civilian lives.” Clinton signed it anyway, in one of his final acts as President, on December 31, 2000. But, he said, “I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”
Clinton needn’t have worried about his successor. In the spring of 2002, with the war in Afghanistan in full swing, President Bush ordered that the U.S. “un-sign” the Rome Statute. The I.C.C. opened for business that July, and that same month a bipartisan majority in Congress passed the American Service-Members’ Protection Act, obliging the President to prevent “to the maximum extent possible” any I.C.C. prosecution of U.S. armed forces. The law also extended its protections to the military forces of America’s allies. In a clause that inspired its critics to call it the “Hague Invasion Act,” it even authorized the use of force to liberate any U.S. or allied forces detained under I.C.C. auspices. Immediately after the passage of that law, Bush dispatched none other than Under-Secretary of State John Bolton to travel the world to strong-arm more than ninety governments into effectively accepting its terms as their own.
In his speech to the Federalist Society, Bolton summarized much of this history, recalling that mission to “prevent other countries from delivering U.S. personnel to the I.C.C.” as “one of my proudest achievements.” What he failed to mention was how dramatically Washington’s hostility to the court inspired greater support for it in international opinion, and complicated relations on many fronts with our allies, particularly as the extent of the Bush Administration’s policy of torturing detainees in the so-called global war on terror became widely known. Still, the I.C.C. showed no intention of going after Americans, and, in Bush’s second term, when Bolton was serving as the Ambassador to the U.N., U.S. officials began to see that the court could serve as a useful instrument in pursuing their own interests, and began to offer it support and coöperation accordingly, ultimately stepping aside—over Bolton’s objection—to allow its investigation of war crimes in Darfur.
The Obama Administration continued and expanded the policy of working with the court in pursuit of foreign-policy objectives, even as it worked quietly to maintain U.S. immunity from the court’s investigations. But using one’s power to impose on others a system of law to which one swears never to submit is the definition of injustice. So, just as the antagonism from the Bush Administration’s first term had won the I.C.C. favor in much of the rest of the world, the Obama Administration’s practice of publicly embracing the court, which it furtively tried to exempt itself from, engendered resentment that the court was being co-opted as an instrument of U.S. hegemony, and the prosecutor came under increased international pressure to demonstrate impartiality and universality. That pressure intensified significantly in 2014, after Obama acknowledged the findings of a Senate report detailing U.S. crimes against detainees in the post-9/11 wars, admitting that “we tortured some folks” and “did some things that were contrary to our values,” but warned against passing “sanctimonious” retrospective judgment and declined to hold anyone to account.
Bolton did not mention the second term of the Bush Administration or the Obama years in his speech. His telling of the I.C.C. backstory left off in 2002, with a note of regret that he had been unable to convince “every nation in the world” to pledge to protect Americans from the court, and also with a dig at holdouts in the European Union, where, he said, “the global-governance dogma is strong.” Then he jumped to the prosecutor’s move to pursue the Afghanistan investigation. With a note of I-told-you-so vindication, he said that his “worst predictions” about the I.C.C. had been confirmed and decried what he claimed to be its supporters’ “unspoken but powerful agenda”: to “intimidate U.S. decision-makers, and others in democratic societies,” and thereby to “constrain” them.The I.C.C., from its inception, has been impossibly compromised by the simple, definitive fact that many of the world’s most lawless countries, along with some of its most powerful—including the U.S., Russia, and China, the majority of permanent members of the U.N. Security Council—reject its jurisdiction. After sixteen years with no major triumphs and several major failures to its name, it would be easier to make the case for it if there were reason to believe that it could yet become the court of last resort for all comers that it is supposed to be, rather than what it is: a politically captive institution that reinforces the separate and unequal structures of the world. Maybe the best that one can hope for the court, in its current form, is that it can yet inspire some people who seek the rule of law to find a way to achieve it. Bolton rejected the very idea that it could inspire any good, simultaneously exaggerating the power of the I.C.C. as an ominous global colossus and belittling it as a puny, contemptible farce. The only historically proven deterrent to “the hard men of history,” he declared, is “what Franklin Roosevelt once called ‘the righteous might’ of the United States.”
So what, really, was the point of Bolton’s speech? Where was the news in this “major announcement on U.S. policy?” He noted that Israel, too, faces the prospect of an I.C.C. investigation and announced that, in solidarity, the State Department was closing down the Palestine Liberation Organization office in Washington. But then he said that the closure wasn’t necessarily about the court but rather a general punishment of “the Palestinians,” because “they refuse to take steps to start direct and meaningful negotiations with Israel.” Beyond that, nothing that Bolton threatened—by way of shutting out, sanctioning, and declaring war on the I.C.C., and treating its personnel or anyone in the world who assisted it as criminals—went much beyond a rhetorical amplification of what he acknowledged has been established in U.S. law since the American Service-Members’ Protection Act. This wasn’t foreign policy. It was swagger.
Bolton has, thus far, enjoyed an absence from the Woodwardian accounts of Trump White House backbiting, subterfuge, and dysfunction. So it is tempting to think that he was deployed to deflect attention from the White House chaos, while his boss spent the day issuing uncharacteristically Presidential tweets about the hurricane bearing down on the Carolinas. Bolton, however, left out one point from his old Journal piece in this week’s speech, and the omission seems telling: “The ICC prosecutor,” Bolton wrote, “is an internationalized version of America’s ‘independent counsel,’ a role originally established in the wake of Watergate and later allowed to lapse (but now revived under Justice Department regulations in the form of a ‘special counsel’). Similarly, the ICC’s prosecutors are dangerously free of accountability and effective supervision.”
So the threat comes from within, after all. The problem is the existence of the prosecutor, who endangers sovereignty, which in Trump-speak means being above the law. The President and the nation cannot be held to account or supervised, so the prosecutor has to be. The President and the nation cannot be criminals, so the prosecutor must be. The prosecutor cannot be recognized. The prosecutor must be disempowered.