By Jovan Djordjevic
America has always had a special status at the Assembly of State Parties(ASP) but the salvo unleashed by John Bolton this year indicates that it will not be business as usual in this year’s ASP.In the second installment of the continuing series of stories of the ASP, Journalists for Justice Jovan Djordjevic, provides a special coverage on America and the International Criminal Court.
After sweeping to power on a wave of populism many had failed to read, US President Donald Trump has shaken things up at home and across the Atlantic.
In less than two years since Trump’s presidential election campaign, what was once regarded as mere rhetoric by his electoral spin-doctors has materialized into concrete policies at the White House.
On September 10, 2018, the president’s national security advisor John Bolton laid out the tenets of the administration’s new course in foreign policy — in particular its hostile stance towards the International Criminal Court (ICC). Bolton referred to the court as “illegitimate”, and issued a threat: “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution.”
He went on: “We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead.”
The ICC has been lawfully established through the Rome Statute, an international treaty adopted in 1998, to which 123 states worldwide have appended their signatures to become parties.
The American government’s distrust of the court is nothing new, and the hostility towards the concept of universal justice has been evident even during previous administrations — namely during the tenure of former president George W. Bush. Going back in time, one might recall that the very ideas that underpinned the Bush administration’s policy towards the ICC were crafted by the very man who is now in charge of administering them under the current White House — John Bolton.
In the early days of the court’s establishment, it was he who spearheaded the effort to “unsign” the United States from the Rome Statute. It was also during Bolton’s tenure in the Bush administration (between 2001 and 2006) that the US introduced the “American Service members Protection Act” (ASPA). The law stipulates that its purpose is “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 party.” Essentially it authorizes America to use force in order to free its service members from custody in foreign jurisdictions. This is why the Act became popularly known as the “Hague Invasion Act”.
The ASPA gave the ICC an unintended popularity boost in The Netherlands. Citizens who had not been that interested in the ICC before phoned in during live radio programmes, scandalized at the idea of US navy ships appearing on the beaches of Scheveningen, ready to invade Holland.
Fast-forward to today, the sheer level of criticism and the harsh rhetoric directed at the ICC from the Trump administration bears a stark resemblance to the not too distant past. Bolton’s statements themselves may seem scathing, but they are just the tip of the iceberg when it comes to the new agenda that is currently being pursued by the White House, one which not only aims to halt the bit of cooperation with the ICC which was there during the Obama years (like when the US tried to help with attempts to arrest Ugandan warlord Joseph Kony and his cronies), but will also open the door to the sanctioning of its judges and staff by the US government.
One might wonder what catalyzed such a turn of events – until recently the ICC was considered to be a rather peripheral topic in the US political arena. However, things changed after the prosecutor announced that the court would be willing to launch investigations into the actions of American soldiers (among others) during the allied military intervention in Afghanistan since 2003.
For some, this might seem like a surprise. It is certainly unprecedented for Western powers like the US to attack the court in such a harsh and open way. Politicians of other countries such as the UK and France have good reason to oppose the court’s investigations into the war in Afghanistan, yet they have not challenged or attempted to sabotage the court and its work. Unsurprisingly, all of this comes as a shock to the western world, yet the public in many African states has been hearing such rhetoric for decades. Over the years, African leaders – both old and new — have used plenty of colourful language in their criticisms of the court.
In 2016, Uganda’s long-time President Yoweri Museveni referred to the ICC as “a bunch of useless people”. He subsequently condemned the ICC’s decision to launch an investigation into the Burundi conflict. All this coincided with Burundi’s withdrawal from the ICC in 2017.
Likewise, across the continent, former South African President Jacob Zuma left a record of scathing criticism of the court and its functions. On numerous occasions throughout his nine-year rule, Zuma tried to cast doubt on the court’s effectiveness – branding it as a tool for “selective justice” and accusing it of being a “biased” institution without providing any credible evidence for his claims. This was followed by the Zuma administration’s refusal to carry out its duty to arrest one of the ICC’s prime suspects, Sudanese President Omar Al Bashir when he visited Pretoria in 2015. Such actions understandably culminated in a rapid souring of relations between one of Africa’s largest economies and the Hague-based court. It ultimately led to an attempt to withdraw South Africa from the ICC – a plan that would have succeeded had it not been for the the Guptagate scandal that toppled Zuma from power in 2018. The attempt to withdraw is not actively on the legislative agenda any more.
All of this goes to show that criticism of the court is nothing new. As with any judicial institution, the ICC’s very existence is bound to provoke anger from those who feel threatened by its mission. The United States under the Trump administration may be the latest (and definitely the strongest) government to challenge the ICC, but it is certainly not the first. The Philippines served notice on the UN secretary general of its intention to withdraw from the ICC in March 2018. As history has shown, criticism of international justice is usually levied by those who stand to lose most from a rules-based multilateral legal order. Instead of succumbing to uncertainty and despair over America’s decision to sabotage the ICC, the international community would be wise to remain resilient and publicly reaffirm its support for the court. As past experience shows, opposition to international justice comes and goes depending on who is in power – and when.
