Vietnam summit: Kim's 'done deal' coming to fruition?
International Criminal Court plays important role in global rule of law
This week, White House national security adviser John Bolton slammed the International Criminal Court in the latest shot across the bow the Trump administration has taken against multilateral institutions. However, this attack on the ICC is particularly shortsighted. As I have written previously, it is in both the national and global security interests of the United States to support this court on the world stage.
Even before joining the Trump administration, Bolton penned a piece in the Wall Street Journal that the United States should welcome the opportunity to "strangle the ICC in its cradle" or at least to tell the ICC prosecutor that "you are dead to us." As Bush administration legal adviser John Bellinger confirms, Bolton led the charge during the the Bush administration to oppose the fledgling court, including by "unsigning" the Rome statute that created the ICC and bullying American allies into signing dozens of Article 98 agreements promising not to surrender United States officials to the court. However, the hostility that the Bush administration aimed at the court began to evaporate, as officials soon began to recognize that many of the most important American allies were members of the ICC and that the court could serve key policy goals.
The idea behind the ICC emerged from World War II and the Holocaust. It took another half century after the founding of the United Nations before the court came into effect. It not only offers a way to punish war atrocities, but also deters abusers from even contemplating genocide and other serious crimes. A global criminal court is important not only to secure justice for victims, but to preserve the rule of law and promote stability in a tumultuous world. When courts bring justice, people and communities are less likely to take matters into their own hands. National courts may prosecute crimes, but are sometimes unwilling or unable to.
While the ICC is a relatively new institution, it has investigated numerous allegations and prosecuted several cases, leading to a handful of convictions ranging from the use of child soldiers to the war crime of murder. Even so, under the principle of complementarity, the court will not prosecute cases where the relevant country has taken necessary steps to investigate and punish war crimes. Such deference to sovereignty, which the American government fought for in negotiating the ICC statute, should address any concerns the president has about the court possibly prosecuting the United States for alleged misconduct in Afghanistan.
It is shortsighted for the Trump administration to undermine support for the important work the ICC does. The court has played a significant role in advancing interests that the United States paved the way for following World War II, and there are many ways the American government can support the court without formally becoming a party. Thus, the Trump administration should pursue a policy of "positive engagement" with the court that enables the United States to participate as an "observer" in the assembly of states parties to ensure that American interests are met.
The United States could also continue to offer support for specific prosecutions on a case by case basis, such as through cooperation on witness protection, and could offer expertise and logistical assistance in collection of evidence or in efforts to apprehend ICC fugitives. The United States took similar steps to support the International Criminal Tribunal for the Former Yugoslavia, such as by providing the prosecutor in this case with aerial images showing the construction of mass graves at Srebrenica.
Former Ambassador David Scheffer perfectly crystallizes this moment, noting that Bolton "severely undermines our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world" and the "double standard set forth in his speech will likely play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law."
Catherine Powell is an adjunct senior fellow with the Council on Foreign Relations and a law professor at Fordham University. She served as the director for human rights on the National Security Council and was on the policy planning staff at the Department of State under President Obama. This column is based on her writings on the International Criminal Court.