WASHINGTON (Circa) — Prosecutors at the International Criminal Court (ICC) are expected to launch a formal investigation of alleged U.S. war crimes and human rights abuses during the war in Afghanistan, possibly in the coming weeks. As a result, American soldiers and government officials accused of wrongdoing could be subject to ICC arrest warrants and detention, a prospect the Trump administration strongly opposes.
White House National Security Adviser John Bolton, a longtime opponent of the court, warned Monday that the United States would go to extraordinary lengths to protect American citizens from the reach of the ICC, including the use of force and sanctions.
"The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court," Bolton said in a speech to the Federalist Society in Washington.
Speaking on behalf of President Donald Trump, he continued, "We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us."
The United States is not a member of the ICC and has historically rejected the court's jurisdiction to prosecute Americans outside the U.S. criminal justice system.
Acknowledging Bolton's remarks, the ICC responded that it will "continue to do its work undeterred." Representatives of the ICC were unable to provide a timeline of when the court will decide to approve or disapprove the investigation of alleged U.S. abuses.
Judges at The Hague are currently reviewing the facts collected by ICC prosecutors in a case covering U.S. actions related to the war in Afghanistan dating back to July 2002. Following the review, the judges will determine whether to authorize an investigation, which would likely lead to a trial involving U.S. military or intelligence personnel as well as government officials.
#ICC jurisdiction over the crime of aggression was activated on 17 July 2018. This crime involves the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State pic.twitter.com/PPLPwtjeKz— Int'l Criminal Court (@IntlCrimCourt) September 3, 2018
In announcing the court's preliminary inquiry in Nov. 2017, the chief prosecutor said the ultimate focus of the investigation "will be upon those most responsible for the most serious crimes allegedly committed in connection with the situation in Afghanistan."
US TO RESPOND USING 'ALL MEANS NECESSARY'
The United States is prepared to frustrate any attempts by the court or member states to pursue American citizens and has the legal tools to do so. Under a 2002 U.S. law, the American Service-Members' Protection Act (ASPA), the president has the authority to "use all means necessary and appropriate, including force, to shield our service members and the armed forces of our allies from ICC prosecution," Bolton warned.
Under ASPA, the United States may also cut off foreign aid and military assistance to countries that help the ICC. Approximately 100 countries have an agreement with the United States to give American citizens immunity from the court's jurisdiction.
The Trump administration is also prepared to ban ICC judges and prosecutors from entering the United States, impose financial sanctions and pursue legal action against any state or entity that assists an ICC investigation of Americans.
"This announcement should be taken seriously by everyone," said Sebastian Gorka, a former adviser to President Trump. "It's not rhetoric...It will be followed up by actions."
Brett Schaefer, a Heritage Foundation scholar in international regulatory affairs, said the timing of the speech was important and he believes the ICC could decide to formally investigate the United States as soon as this fall.
"The timing of this speech was designed, in essence, to be a warning shot," Schaefer explained. "If the court decides to launch a formal investigation, the United States will respond in a forceful way to protect its military and its government officials from the claims of a court whose jurisdiction it views as illegitimate."
Though Bolton suggested the president would resort to the use of force to defend U.S. persons from the court, Schaefer expects to see the administration use U.S. diplomatic leverage and other pressures to thwart the ICC or entities cooperating with the court. That could include establishing a new framework for sanctioning entities that support the ICC.
Since Bolton's speech, there are signs that close American allies will continue to assist the ICC in spite of U.S. warnings. The French Foreign Ministry said Tuesday that "France, with its European partners, supports the International Criminal Court, both in its budget contribution and in its cooperation with it." France said the court should be able to act "without hindrance."
The U.S. State Department declined to comment on any retaliatory "actions, activities, sanctions and other steps" the administration may take in response to U.S. allies cooperating with the court.
BOLTON REVIVES BUSH'S ICC POLICY
Bolton's speech was both a clarification of the Trump administration's posture toward the ICC and a return to the policy he enacted and helped develop while serving in the George W. Bush administration.
Bolton outlined five principle objections to the court, similar to concerns he raised in the early 2000s: 1. The court "threatens American sovereignty" and has near "universal jurisdiction" but is not subject to the consent of those under its jurisdiction; 3. the court has failed to deter and adequately punish atrocities, like genocide and war crimes; 4. the court is "superfluous" given domestic U.S. judicial systems; 5. more than 70 nations with more than 70 percent of the world's armed forces are non-members and object to the ICC's authority.
Human rights organizations strongly objected to Bolton's characterization of the court. "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," said Amnesty International USA's deputy director of advocacy and government relations, Adotei Akwei.
He warned that "resuming attacks against the Court sends a dangerous signal that the United States is hostile to human rights and the rule of law."
U.S. skepticism of the Hague-based court is not unique to President Trump. Former President Barack Obama, though more open to the court, remained skeptical and never pushed Congress to ratify the Rome Statute. The Obama administration cooperated in the ICC investigations of the situation in Libya, as well as alleged war crimes in Uganda and the Democratic Republic of the Congo.
Even former President Bill Clinton, who signed the Rome Statute in 2000, was concerned about the court's "significant flaws." Specifically, he worried about the court's ability to claim jurisdiction over all states, not just the Rome signatories. Ultimately, he signed with the hope that the United States could remain engaged in negotiations and help shape the court.
Any attempts to influence the ICC collapsed in 2003 when then-Under Secretary of State for Arms Control John Bolton was authorized by President George W. Bush to "un-sign" the Rome Statute. Bolton, who has consistently claimed the court is "dangerous" and a threat to American sovereignty, described his role in withdrawing from Rome as "the happiest moment of my government service."
ICC INQUIRES INTO U.S., ISRAEL
The timing of Bolton's speech coincided with two separate matters likely to come to a head in the near future. First, the ICC allegations of U.S. war crimes in Afghanistan and second, a preliminary inquiry into alleged crimes committed by Israel in Palestinian territory. Palestine, though not officially recognized as an independent nation, is a recognized member of the ICC. Israel is not.
Citing U.S. concerns over the threatened ICC investigation of Israel, Bolton announced Monday that the State Department was shuttering the Palestinian consulate office in Washington. This followed recent U.S. suspension of millions of dollars in aid and relief to Palestinians.
Human Rights Watch associate international justice director, Liz Evenson warned that the Trump administration's policy will undermine the ICC and "squander opportunities for justice" in both cases under consideration.
"Any U.S. action to scuttle ICC inquiries on Afghanistan and Palestine would demonstrate that the administration was more concerned with coddling serial rights abusers—and deflecting scrutiny of U.S. conduct in Afghanistan—than supporting impartial justice," Evenson charged.
According to the Rome Statute, the ICC prosecutor can initiate legal action when a member state requests it, as in the case of the Palestinian complaint against Israel. The prosecutor can also act on her own authority, as was the case with allegations of U.S. war crimes in Afghanistan. Neither the United States or Afghan government requested the investigation.
ICC chief prosecutor Fatou Bensouda took into account complaints from hundreds of victims of alleged war crimes. The prosecutor is also looking into incidents of torture allegedly committed by U.S. forces at so-called "black sites," interrogation facilities operated by the Central Intelligence Agency in Poland, Romania and Lithuania. Each of those countries is a member of the ICC.
During the initial inquiry in Nov. 2017, Bensouda insisted the investigation was a last resort and implied the United States failed to adequately investigate victims concerns.
"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," Bensouda stated. "It is only when the States concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction."
The U.S. military typically investigates incidents involving civilian casualties where there is a reasonable suspicion of a violation of the laws of war. The U.S. Congress investigated allegations of torture and in 2014 publicly released extensive documentation of terrorist detainee abuse during the early years of the War on Terror. None of the individuals who authorized the program faced legal consequences and a number of lawsuits were dismissed.
If ICC judges approve a formal criminal investigation of the United States, it will be the court's second investigation outside of Africa.