Trump Administration Threatens Sanctions against International Criminal Court

ANGLO AMERICA, UNITED NATIONS, JUSTICE, 17 Sep 2018

Patrick Martin | WSWS – TRANSCEND Media Service

11 Sep 2018 – The Trump administration announced Monday [10 Sep] that it would retaliate against the International Criminal Court (ICC), a judicial panel established under the auspices of the United Nations, if the ICC took any action against US military or civilian officials over charges of war crimes in Afghanistan.

The announcement was made by National Security Advisor John Bolton in a speech to the Federalist Society, the corporate-financed association of ultra-right lawyers and judges that has vetted President Trump’s two nominations to the US Supreme Court.

Bolton took the occasion of an appearance before a group of lawyers to declare the US government’s defiance of any constraint on its actions under international law, which he characterized as an attack on American sovereignty. His main concern was not so much for front-line soldiers, as for the decision-makers, from military commanders on the battlefield to war planners and strategists in Washington, right up to the White House itself, who he said were in danger of being “intimidated” by the threat of war crimes charges.

In rejecting the ICC the Trump administration has not adopted a new policy. When the body was first created in 2002 under an accord signed in Rome, the Bush administration repudiated it, and Congress quickly passed legislation by huge bipartisan margins. The new law, the American Service-Members’ Protection Act, had as its goal “to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not a party.”

Subsequent events demonstrated why the Bush Administration repudiated the ICC. In 2003, the United States invaded Iraq in a criminal war of aggression launched on the basis of lies. As a direct consequence of the invasion, over a million Iraqis were killed, and the United Sates military engaged in sadistic torture and murder on a massive scale.

The Obama administration upheld this law as well, and Bolton hailed it, joking that it had been widely dubbed The Hague Invasion Authorization Act, since it approved in advance the use of military force to free any US citizens facing charges before the ICC, which sits in The Hague, Netherlands.

The national security advisor outlined further actions that the Trump administration was prepared to carry out in the event the ICC decided to act on a request filed in November 2017 for an investigation into war crimes in Afghanistan committed by Afghan government and outside forces, including American. The ICC has been collecting evidence on torture in US, NATO and Afghan government detention centers since 2007, without taking any action thus far, an indication of the impotence of such bodies when faced with opposition by the major imperialist powers.

These actions would include denying entry to the United States for members and employees of the ICC, financial sanctions against ICC judges and staff if they have assets in the US financial system, and the bringing of criminal charges under US law. In other words, anyone who would dare to investigate US war crimes overseas could find himself sitting in a US jail, or even in a detention center like Guantanamo Bay, treated like a “terrorist.”

In perhaps the most revealing passage of his 30-minute speech, Bolton outlined what he said were five fundamental defects of the International Criminal Court. The second “defect” was that crimes of aggression were defined too vaguely. If the ICC had been in existence during World War II, he declared, it would have found the Allies guilty of war crimes for the bombing of Germany and Japan—the deliberate creation of firestorms in Dresden, Hamburg, Tokyo and other cities, in which hundreds of thousands died, and the nuclear incineration of Hiroshima and Nagasaki.

Bolton objects to such methods being called by their right names—war crimes—because he represents a government that has already tested out such methods, in Mosul, Raqqa and other cities, and is preparing to do so on a much vaster scale, including giant metropolises like Tehran, Moscow and Beijing.

Bolton paired the declaration of war on the ICC with a directive to close the Washington office of the Palestine Liberation Organization because the Palestinian Authority has brought charges before the ICC over Israel’s building of illegal settlements on the West Bank on land seized from Palestinian farmers.

While Bolton ridiculed the ICC as an illegitimate body that was grossly exceeding its authority, he was silent on the real target of the Trump administration’s wrath: the 123 member states that participate in the ICC and accept its jurisdiction. This includes every nation in Latin America except Nicaragua, every Caribbean state except Cuba and Haiti, every European country except Ukraine, Belarus and Russia, and Pacific states like Australia, New Zealand, Japan and South Korea.

Bolton asserted that states comprising two-thirds of the world’s population and 70 percent of the world’s military force were outside the ICC, without mentioning that this consists mainly of the United States, Russia, China, India, Pakistan, the countries of southeast Asia (most under military or Stalinist dictatorship) and nearly all the countries of the Middle East and North Africa (including Iran, Egypt, Saudi Arabia, and Israel).

This list includes an array of savage US-backed dictatorships, which engage in everyday violations of human rights on a mass scale, through torture, imprisonment and executions.

In threatening the ICC, the Trump administration is not merely defying an international tribunal initially sanctioned by Washington. It is effectively laying down the law to what once were the closest allies or client states of American imperialism: the NATO countries, the Latin American countries, and the countries of the Pacific Rim. If they cross the United States, they will be dealt with savagely.

In the person of Trump, Bolton & Co., American imperialism is dropping the pretense of the United States as the leader of the free world and the advocate of international law, a political posture that, however false, was of enormous significance in the historical period following World War II.

Instead, Trump’s America is a nakedly predatory imperialist power, openly seeking domination over all others, flouting international law and democratic scruples whenever the interests of “America First” require it to do so.

And despite their occasional protests, there is no significant dissent from the Democratic Party against this stance of defiance of international law and any accountability for US troops and operatives for their actions around the world.

On the contrary, the Democratic Party’s main criticism of Trump is that he has been insufficiently aggressive and unconstrained in the use of American military power, particularly in Syria, as well as on the periphery of Russia, in areas like Georgia, Ukraine and the Baltic states.

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3 Responses to “Trump Administration Threatens Sanctions against International Criminal Court”

1. rosemerry says:

   17 Sep 2018 at 21:02

   A point I saw elsewhere is that Afghanistan is a member of the ICC and an therefore lead to the prosecution of Americans for war crimes there, even if it objects.

2. Satoshi Ashikaga says:

   18 Sep 2018 at 14:17

   FOR YOUR REFERENCE:

   1. Bolton’s Speech to the Federalist Society on September 10, 2018:

   “Full text of US national security adviser’s speech lashing out at the International Criminal Court and Palestinians.”: 10 Sept 2018 (https://www.aljazeera.com/news/2018/09/full-text-john-bolton-speech-federalist-society-180910172828633.html)

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   2. The ICC’s Decision on September 6, 2018 and Bolton’s Speech on September 10, 2018:

   On September 6, 2018, the ICC ruled, by invoking “Article 119 (1) Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court” of the Rome Statute and the “principle of la compétence de la compétence or Kompetenz‑Kompetenz” – a well-established principle of international law according to which any international tribunal has the power to determine the extent of its own jurisdiction, that the court has jurisdiction to investigate widespread allegations that Myanmar forces have driven hundreds of thousands of Rohingya Muslims from their homes. The decision opens up the possibility of crimes against Rohingya people being prosecuted at the Hague-based court, even though Myanmar is not a member of the court.

   Then, the Trump administration/Bolton immediately became aware that the ICC might apply the same argument to the case of the US military personnel who participated in the military operation in Afghanistan, because the above September 6, 2018 decision has opened up the possibility of crimes against Afghans being prosecuted at the Hague-based court, even though the United States is not a member of the court. (https://www.transcend.org/tms/2018/09/judges-rule-icc-has-jurisdiction-over-rohingya-deportations/#comment-88403)

   Therefore, it can be said that Bolton’s speech on September 10, 2018, was the Trump administration’s reaction to the ICC’s decision on September 6, 2018.

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   3. American Service-Members’ Protection Act of 2002:

   On August 2, 2002, US President George W. Bush singed the “American Service-Members’ Protection Act” or “ASPA”.  ASPA authorizes the US president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” This authorization has led the act to be nicknamed the “Hague Invasion Act”, because the freeing of US citizens by force might be possible only through an invasion of The Hague, Netherlands, the seat of several international criminal courts and of the Dutch government. (https://en.m.wikipedia.org/wiki/American_Service-Members%27_Protection_Act)

   See “American Service-Members’ Protection Act”: Archive of the US Department of State (https://2001-2009.state.gov/t/pm/rls/othr/misc/23425.htm)

   On November 20, 2017, Bolton published his opinion on the Wall Street Journal: “The Hague Aims for U.S. Soldiers: A ‘war crimes’ inquiry in Afghanistan shows the danger of the International Criminal Court.” By John Bolton: Nov. 20, 2017 7:13 p.m. ET (https://www.wsj.com/articles/the-hague-tiptoes-toward-u-s-soldiers-1511217136) Note that Bolton was not the National Security Adviser at the time of the publication of this article.

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   4. Bolton’s and the United States’ Contempt for International Law:

   Bolton’s contempt for international law is widely well-known. For example, see “Bolton: ‘To Hell With International Law!'” (https://sputniknews.com/radio_loud_and_clear/201809111067913408-Bolton-to-hell-with-international-law/)  After working for the Bush administration, he is now the US National Security Adviser for the Trump administration. The Trump administration has poor human rights record. (“Top Human Rights Lawyers’ Views on Trump’s Human Rights Record” (https://www.justsecurity.org/39520/5-top-human-rights-lawyers-views-trumps-human-rights-record/)). And Bolton has joined this administration since April 2018.

   [To understand this issue broader and the background of Bolton’s (and those who have similar) view-point, the following book and essay are highly recommendable: Book: The Assault on International Law, by Jens David Ohlin. (New York: Oxford University Press, 2015) (https://www.ethicsandinternationalaffairs.org/2016/the-assault-on-international-law/):  Essay: “You Must Follow International Law (Unless You’re America): How Washington gave itself a global get-out-of-jail-free card.” By Alfred W. McCoy (https://www.thenation.com/article/you-must-follow-international-law-unless-youre-america/)]

   When Bolton was working for the Bush administration, what happened to Afghan and Iraqi civilians, for instance?

   – Civilian casualties in the war in Afghanistan (2001–present) (Wikipedia): https://en.m.wikipedia.org/wiki/Civilian_casualties_in_the_war_in_Afghanistan_(2001–present)

   – Casualties of the Iraq War (Wikipedia): https://en.m.wikipedia.org/wiki/Casualties_of_the_Iraq_War

   – Iraq Death Toll Reaches 500,000 Since Start Of U.S.-Led Invasion, New Study Says: 10/15/2013 09:26 pm ET Updated Dec 06, 2017: “Nearly half a million people have died from war-related causes in Iraq since the US-led invasion in 2003, according to an academic study published in the United States on Tuesday.” (https://www.huffingtonpost.com/2013/10/15/iraq-death-toll_n_4102855.html)

   US, UN and International Law: “The Bush administration has embarked on a strategy of hard line unilateralism, disregarding the UN and international law. The Bush doctrine of preemption defies the UN Charter by allowing the US to use illegal force against other states.”: https://www.globalpolicy.org/us-un-and-international-law-8-24.html

   “You Must Follow International Law (Unless You’re America): How Washington gave itself a global get-out-of-jail-free card.” By Alfred W. McCoy: “As the world’s new sovereign, Washington used the CIA to enforce its chosen exceptions to the international rule of law, particularly to the core principle of sovereignty.”: (https://www.thenation.com/article/you-must-follow-international-law-unless-youre-america/ )

   However, some people think as follows: “But creating a viable and meaningful set of international legal standards is crucial to ensuring a future for the human species, and when countries erode the precious and unstable existing compact, whether Syria, the United States, Britain, France, Russia, or Israel, and embrace the concept of “illegal but legitimate,” they threaten to undo all of the progress that has been made toward ensuring a lasting world peace.”  See “APRIL 14, 2018: WHY DOES INTERNATIONAL LAW EVEN MATTER?: When the United States treats other countries with contempt, it threatens our fragile global peace…” by NATHAN J. ROBINSON (https://www.currentaffairs.org/2018/04/why-does-international-law-even-matter)

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   5. President Clinton and the George W. Bush Administration Over the ICC:

   “In the United States, there is a broadly shared view that the U.N. is one of many potential instruments to advance U.S. issues, and we have to decide whether a particular issue is best done through the U.N. or best done through some other mechanism.” – John Bolton  (https://www.azquotes.com/quote/1083362)

   John Bolton’s words quoted above represent the US administration’s the fundamental view over the United Nations, especially since the Bush administration. However, even when Bill Clinton was the US President, the opposition to the ICC among Americans was strong. Some Americans strongly opposed the ICC from the beginning. Clinton was well aware of that.

   However, Clinton was determined to let the United States join the ICC. So, what did he did for that? “President Bill Clinton unexpectedly authorized a U.S. representative to sign the 1998 Rome Statute establishing an International Criminal Court (ICC) on December 31, 2000–the last day countries could become parties to the treaty without ratifying it.” (https://www.heritage.org/global-politics/report/overturning-clintons-midnight-action-the-international-criminal-court)  

   See “Statement by US President Bill Clinton, authorizing the US signing of the Rome Statute of the International Criminal Court” (http://www.iccnow.org/documents/USClintonSigning31Dec00.pdf) 

   The Bush administration, in January 2001, began to overturn Clinton’s authorization. “At the beginning of May, 2002, the Bush Administration announced that it had resolved to unsign the Rome Statute creating the International Criminal Court (ICC).” (http://www.globalissues.org/article/490/united-states-and-the-icc)  To this date, the United States has not been a member State to the Rome Statute. Moreover, it seems that the US opposition to the ICC has become remarkably stronger since the Bush administration.

   See “US Opposition to the International Criminal Court”. (https://www.globalpolicy.org/us-un-and-international-law-8-24/us-opposition-to-the-icc-8-29.html)  See also “United States and the International Criminal Court” (Wikipedia): (https://en.m.wikipedia.org/wiki/United_States_and_the_International_Criminal_Court)

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   6. Some Discussions on International Law and the US Laws:

   – “PRESIDENTIAL CONTROL OVER INTERNATIONAL LAW” by Curtis A. Bradley & Jack L. Goldsmith: (https://harvardlawreview.org/wp-content/uploads/2018/03/1201-1297_Bradley-Goldsmith_Online.pdf )

   – “Does America Have to Follow International Laws?”: (https://www.hg.org/legal-articles/does-america-have-to-follow-international-laws-35594)

   – “International Law and Agreements: Their Effect upon U.S. Law” by Michael John Garcia: (https://fas.org/sgp/crs/misc/RL32528.pdf)

   – “International Agreements and U.S. Law” by Frederic L. Kirgis: https://www.asil.org/insights/volume/2/issue/5/international-agreements-and-us-law

   ————————-

   7. American Exceptionalism:

   Some people think that is attributed to “American exceptionalism”, hidden behind many Americans’ views over international law and the international community.  See “Restraining Gulliver:American Exceptionalism and the International Criminal Court” by William S. Shepard (https://muse.jhu.edu/article/20779/pdf) 

   See also “What, exactly, is ‘American exceptionalism’?” (http://theweek.com/articles/654508/what-exactly-american-exceptionalism)

   “On American Exceptionalism” by Harold Hongju Koh: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://r.search.yahoo.com/_ylt=A0geJaLA9aBbsMwAgYTBGOd_;_ylu=X3oDMTEyYWE3MmxyBGNvbG8DYmYxBHBvcwMxBHZ0aWQDQjYyOTJfMQRzZWMDc3I-/RV=2/RE=1537304129/RO=10/RU=http%3a%2f%2fdigitalcommons.law.yale.edu%2fcgi%2fviewcontent.cgi%3farticle%3d2737%26context%3dfss_papers/RK=2/RS=OW.trDfV_QgUoU1BsMPDvnu25yc-&httpsredir=1&article=2737&context=fss_papers

   However, there are some Americans who oppose “American exceptionalism.” See “The Myth of American Exceptionalism
   The idea that the United States is uniquely virtuous may be comforting to Americans. Too bad it’s not true.” BY STEPHEN M. WALT | OCTOBER 11, 2011 (https://foreignpolicy.com/2011/10/11/the-myth-of-american-exceptionalism/)

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   8. Promotion of the US Participation in the ICC:

   There are some Americans who are promoting the US participation in and/or cooperation with the ICC. See some of the following examples:

   – “American Bar Association’s International Criminal Court Project: The American Bar Association’s International Criminal Court Project (ABA’s ICC Project) implements longstanding ABA policies on international criminal justice. The ABA was amongst the voices that called for establishment of a permanent international tribunal by multilateral treaty – what later became the Rome Statute that established the International Criminal Court (ICC) – and did so starting in 1978. The ABA participated in the negotiations of the Rome Statute as an observer, advocated for the treaty’s adoption, and urged the United States to become a State Party. Most recently, the ABA urged the US government to forge greater support for, and engagement with, the ICC.” (https://www.aba-icc.org/the-aba-icc-project/about-the-project/)

   – American Association of International Law (ASIL): “ASIL TASK FORCE: U.S. SHOULD ADOPT POLICY OF POSITIVE ENGAGEMENT WITH INTERNATIONAL CRIMINAL COURT”: (http://www.iccnow.org/documents/ICC_Task_Force_Report_09_03_24.pdf)

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3. Satoshi Ashikaga says:

   18 Sep 2018 at 18:29

   See below, the ICC’s statement after the Trump administration’s announcement in his speech by John Bolton.

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   Statement : 12 September 2018

   The ICC will continue its independent and impartial work, undeterred

   ICC-CPI-20180912-PR1406

   The International Criminal Court (“ ICC” or the “Court”) is aware of the speech delivered on 10 September 2018 by US National Security Advisor, John Bolton, concerning the ICC.

   The Court was established and constituted under the Rome Statute, the Court’s founding treaty – to which 123 countries from all regions of the world are party and have pledged their support through ratification –as an instrument to ensure accountability for crimes that shock the conscience of humanity. The Court is an independent and impartial judicial institution.

   The Court’s jurisdiction is subject to the primary jurisdiction of States themselves to investigate and prosecute allegations of those crimes and bring justice to the affected communities. It is only when the States concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction.

   The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.

   (https://www.icc-cpi.int/Pages/item.aspx?name=pr1406)