In a way, it’s kind of sad. You would think, after all of these years, that former US diplomat John Bolton would get over his almost paranoid fear of the International Criminal Court (ICC). Bolton, who served under George W. Bush and was an architect of that administration’s vitriolic, anti-ICC policies, has always had an overly sized chip on his shoulder when it comes to the Court. He proudly speaks of the day he deposited a notice at the United Nations declaring that Washington was ‘unsigning’ the Rome Statute of the International Criminal Court. For Bolton, the ICC is some sort of undemocratic boogie-man set out to wreak havoc upon US interests and stampede on the sovereign integrity of states. Irony and evidence apparently don’t have much of an effect on Bolton. If they did, he would recognize that his claims present the ICC as having much more power and effect than the institution actually has.
When given the opportunity, Bolton has continued his rambunctious tirades against the ICC. At a recent conference in Tel Aviv, Israel, Bolton derided the ICC and warned that, if Hillary Clinton managed to become the next President of the United States, she would do the unthinkable: (re)sign the Rome Statute and join the ICC. This seems extremely unlikely. But before delving into why, here’s a report of Bolton’s comments:
Turning to the ICC, Bolton called on democratic nations not to engage with the court, branding it unaccountable, illegitimate, impotent and biased.
“We must not cooperate with the ICC – that gives them legitimacy,” he said. “The ICC is an illusion. A bunch of people in black robes will never be able to stop the brutal dictators who carry out mass murders.”
“No one elected them, there are no checks and balances. It is in practice an ad hoc tribunal to attack African leaders,” he continued, adding that his “happiest moment” in service of the US government was the day he removed America’s signature from the Rome Statute.
“Fortunately, Obama didn’t resign until now, as he knows he won’t have a majority in the Senate in favor,” Bolton stated.
But “if Clinton is elected, she will rejoin Americans to the ICC and resign the Rome Statute,” he warned.
There’s a lot to digest here. But let’s put aside a few things, so we can get to the meat of the matter: whether Clinton would have the US join the ICC. Let’s put aside that Bolton’s comments were to a conference organized by a controversial NGO that has sued the organizers of the Gaza Flotilla and which has pushed the ICC investigate and prosecute the Palestinian Authority. Let’s put aside the fact that the US under Obama has a ‘policy’ of “positive engagement” with the ICC. Let’s put aside that Bolton was America’s UN Ambassador at a time when the US was engaged in a systematic policy of torturing enemy combatants (crimes which are being examined by the ICC). Let’s put aside that ICC judges are in fact elected — by member-states of the Court. And let’s put aside the reality that the ICC does have checks and balances, namely via the principle of complementarity which ensures that the ICC can only prosecute international crimes if and when the relevant state refuses to do so or won’t do so genuinely. The ICC isn’t perfect, but it’s not the rampaging monster Bolton has concocted.
But would Clinton ever push for the US to join the ICC? For two reasons, it seems extremely unlikely: first, her record on the ICC is mixed, at best; and second, there’s little-to-no appetite in the US to do so.
Those who believe that Clinton would push for the US to join the ICC might be enthused by some previous comments, which came as the Obama administration took positive engagement with the ICC to new levels:
This is a great regret that we are not a signatory. I think we could have worked out some of the challenges that are raised concerning our membership. But that has not yet come to pass.
However, Clinton’s actual record suggests that she wouldn’t have much interest in expending political capital to sign the Rome Statute and, more importantly, push ratification through all of the necessary legislative channels. Indeed, evidence suggests Clinton has never been much of a fan of the Court. She has previously voted in favour of the American Service-Members’ Protection Act, which prohibited the US from cooperating with the Court in any way and authorized the President to use “all necessary measures” to repatriate any American citizen brought to The Hague. According to insider accounts, Clinton also supported applying punitive measures against states that supported the ICC, a policy that her predecessor as Secretary of State, Republican Condoleezza Rice later stated was like “shooting ourselves in the foot”. In more recent years, it is notable that Clinton initially spoke out against indicting Syrian President Bashar al-Assad.
It also seems clear that there is little appetite in the US to sign and ratify the Rome Statute. Washington’s policy of positive engagement towards the ICC allows Washington to engage selectively with the Court yet never be bound by the Rome Statute. It is a sort of ‘one-foot-in, one-foot-out’ policy. There’s no obvious reason why this would change under Clinton, certainly not with allegations of torture by US officials in Afghanistan under preliminary examination by the ICC and a potential investigation of crimes in by Hamas and Israeli forces on the horizon. There are currently zero signs that Washington is inclined to bind itself to the laws of the Court. On the contrary, we should expect Washington to continue building a body of law that suggests that citizens of non-member states, like the US, are exempt from the ICC’s jurisdiction.
It also seems clear that there is little appetite in the US to sign and ratify the Rome Statute. Washington’s policy of positive engagement towards the ICC allows Washington to engage selectively with the Court yet never be bound by the Rome Statute. It is a sort of ‘one-foot-in, one-foot-out’ policy. There’s no obvious reason why this would change under Clinton, certainly not with allegations of torture by US officials in Afghanistan under preliminary examination by the ICC and a potential investigation of crimes in by Hamas and Israeli forces on the horizon. There are currently zero signs that Washington is inclined to bind itself to the laws of the Court. On the contrary, we should expect Washington to continue building a body of law that suggests that citizens of non-member states, like the US, are exempt from the ICC’s jurisdiction.
None of this means that a Clinton administration won’t ever join the ICC. But the political icon that is likely to become the next President of the United States typically follows, rather than sets, the political winds and reaffirms, rather than challenges, the status quo. If that wind and status quo changes significantly and there is a popular groundswell of interest in joining the ICC, then Clinton will capitalize on it and (re)sign the Rome Statute. If not, expect more lofty rhetoric, positive and productive engagement, and a dose of selective cooperation.
The article is published by Justice in Conflict.
