Five things to know about the International Criminal Court

Five things to know about the International Criminal Court
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National security adviser John Bolton has put the International Criminal Court (ICC) in his crosshairs.

In a speech to the conservative Federalist Society on Monday, Bolton pledged the United States would never cooperate with what he called an “illegitimate” court.

“We will let the ICC die on its own,” Bolton said in his first major address since joining the Trump administration. “After all, for all intents and purposes, the ICC is already dead to us.”

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Preventing the ICC from having authority in the United States has been a cause Bolton has championed since his days in the George W. Bush administration.

Here are five things to know about the court.

Nongovernmental organizations pushed for its creation

Though the idea for an international court dates back to the post–World War I era, the most immediate impetus for its creation was in the 1990s after human rights violations in the conflicts in Yugoslavia and Rwanda.

After those conflicts, human rights groups began pushing for a permanent international criminal court to hold accountable and prosecute anyone responsible for genocide, war crimes and crimes against humanity.

The idea was modeled after the Nuremberg trials and the ad hoc tribunals for the Yugoslavia conflicts of the 1990s and the Rwandan genocide.

Hundreds of nongovernmental organizations joined together as the Coalition for the International Criminal Court. Among the 25 founders of the coalition were Amnesty International, Human Rights First and Human Rights Watch.

After six planning sessions at United Nations headquarters in which the NGOs helped draft the International Criminal Court statute, the court was established in July 1998 after 120 states adopted what’s become known as the Rome Statute. The statute came into force in 2002 after it was ratified by more than 60 states.

The organizations that were critical to the court’s creation blasted Bolton’s speech Monday.

“The United States’ attack on the International Criminal Court is an attack on millions of victims and survivors who have experienced the most serious crimes under international law and undermines decades of groundbreaking work by the international community to advance justice,” Adotei Akwei, Amnesty International USA’s deputy director for advocacy and government relations, said in a statement.

It’s not supposed to supersede national courts

The Rome Statute says that the International Criminal Court is only supposed to intervene in cases where a country is unable or unwilling to investigate and prosecute.

Still, critics in the United States argue the court’s broad authority threatens national sovereignty, a case Bolton made Monday.

“The International Criminal Court unacceptably threatens American sovereignty and U.S. national security interests,” Bolton said. “The Prosecutor in The Hague claims essentially unfettered discretion to investigate, charge and prosecute individuals, regardless of whether their countries have acceded to the Rome Statute.”

The Rome Statute gave the ICC jurisdiction over four main crimes: genocide, crimes against humanity, war crimes and crimes of aggression.

Investigations can be requested by states who are a party to the court. States that not a party to the court that have had a crime committed in their territory can also request an investigation if they accept the court’s jurisdiction. The U.N. Security Council can also request an investigation, regardless of whether the state in question is a party to the court.

The ICC’s Office of the Prosecutor can also initiate investigations itself if it has reliable information about a crime, but must get permission from the pre-trial chamber judges to do so.

After an investigation is started, a pre-trial chamber can issue an arrest warrant at the request of the prosecutor. Once arrested, the suspect is detained at The Hague, where there is a pre-trial hearing and, if the charges are confirmed, a trial.

The United States is not a party

The United States joined Iraq, Israel, Libya, China, Qatar and Yemen in voting against the Rome Statute in 1998.

Then-President Clinton had wanted the United States to maintain its Security Council veto over possible cases, a condition that was not met. U.S. concerns also center around the sovereignty issue and due process.

Still, Clinton signed the treaty in 2000, but never submitted it to the Senate for ratification.

When the statute came into force in 2002, then-President George W. Bush effectively withdrew the U.S. signature, notifying the U.N. secretary-general that the United States no longer intended to ratify the treaty and did not recognize any obligation it had under the Rome Statute.

The Bush administration also ratified 100 bilateral treaties requiring countries not to hand over American nationals to the ICC. As under secretary of State at the time, Bolton led the administration’s efforts.

The Bush administration successfully shepherded the American Servicemembers’ Protection Act through Congress. The 2002 law seeks to protect U.S. troops from the ICC by prohibiting U.S. cooperation with the court, among other measures.

Court sees few cases through in early years

There is broad disagreement over how effective the court has been since its creation.

Only a handful of cases have been tried by the International Criminal Court, a detail seized upon by critics to characterize it as ineffective.

“Since its 2002 inception, the court has spent over $1.5 billion dollars, while attaining only eight convictions,” Bolton said Monday, calling it a “dismal record.”

But others say that it’s simply too early to judge the effectiveness of the court, which has faced obstacles and enormous resistance from some corners since it was constructed 16 years ago.

“It certainly has its detractors, and there’s no question that at least one of the reasons why it hasn’t been as effective as some had hoped is the intransigence and obstructionism of the United States,” said Stephen Vladeck, a law professor at the University of Texas.

“But it’s important to compare it to the alternative: But for the ICC, there would be no realistic mechanism for bringing these abuses and atrocities to justice,” Vladeck said.

Afghanistan case in spotlight

Bolton issued a stern warning to the court Monday against pursuing an investigation into alleged war crimes in Afghanistan, describing it as a hazard to American interests and threatening to respond with sanctions should it move forward.

In November of last year, prosecutor Fatou Bensouda announced that she would seek permission from the court to pursue a formal investigation into Afghanistan conflict, citing a “reasonable basis to believe” war crimes had been committed in connection to the years-long conflict.

Bensouda said her investigation, if authorized, would focus on alleged crimes committed in Afghanistan since May 2003, and those “closely linked” to the Afghanistan conflict allegedly committed since July 2002.

A decision on whether the court will allow the investigation is expected soon, after which Bensouda would need to make a decision on which crimes she plans to focus.

“There’s almost no doubt that the judges will authorize an investigation of the Taliban, the Afghan government and the U.S. for torture,” said Alex Whiting, a Harvard Law School professor and former ICC prosecutor. “The threshold for getting permission to investigate is quite low.”

On Monday, Bolton characterized any investigation as both “unfounded” and “unjustifiable,” warning the court against investigating “American patriots” who served in Afghanistan following the 9/11 attacks.

He emphasized that the U.S. would refuse to cooperate, a revelation that, while not particularly surprising, will nevertheless deal a blow to Bensouda’s investigation should she decide to probe war crimes allegedly committed by Americans. Bolton also signaled the U.S. would respond firmly, including by targeting the court’s judges and prosecutors with financial sanctions and criminal prosecution.

“If the court comes after us, Israel or other U.S. allies, we will not sit quietly,” Bolton said.