The Trump Administration and the International Criminal Court: A Misguided New Policy.

• Author: Sterio, Milena

1. Introduction II. Background on the ICC III. Bolton's Remarks and the New American Policy on the ICC IV. Conclusion: A Better Policy Vis-a-vis the ICC: Constructive Engagement I. Introduction In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." (1) In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." (2) While Bolton, and others in the Trump Administration, are at liberty to craft new policies, it is important that such policies be based on accurate facts, and on an accurate understanding of the law. This Article will highlight factual errors from Bolton's remarks, and it will criticize some of Bolton's arguments as misguided and contrary to the United States' interests. In order to do so, this Article will first provide a brief background on the establishment and jurisdictional mechanisms of the ICC (Part II). Next, this Article will analyze Bolton's remarks and the new American policy, announced therein, regarding the ICC (Part III). Finally, this Article will propose how the United States could engage more constructively with the ICC, and how such engagement would advance American interests (Part IV). This Article will conclude that the newly announced policy vis-a-vis the ICC will be detrimental to the United States' interests in the global community, as well as destructive for the global fight against impunity.

2. Background on the ICC

   The ICC is the only permanent international criminal tribunal. (3) Its Statute ("Rome Statute") was negotiated in 1998, and the Court became operational in 2002. (4) The ICC is located at The Hague, and the Rome Statute provides that the Court has prospective jurisdiction, starting in 2002. (5) The Court can properly exercise jurisdiction over situations where crimes have been committed on the territory of an ICC state party, or where crimes have been committed by a national of an ICC state party. (6) In terms of subject-matter jurisdiction, the Court can prosecute individuals accused of four main categories of crimes: genocide, crimes against humanity, crimes of aggression, and war crimes. (7) Starting in 2017, the crime of aggression was added to the Court's Rome Statute, although negotiations surrounding the addition were contentious and resulted in a complex mechanism, whereby states can opt out of jurisdiction over this crime. (8) Cases can appear before the ICC in three different ways: the United Nations Security Council can refer a case to the ICC prosecutor; any state party to the ICC can refer a case to the prosecutor; or, the prosecutor can initiate an investigation on her own. (9) Thus far, the ICC has investigated or prosecuted over twenty-six individuals and eleven situations. (10)

   The ICC's reach is further limited by two conditions related to admissibility of cases: gravity and complementarity. (11) As it will be discussed below, in order for a case to be admissible before the ICC, such a case needs to involve crimes of sufficient gravity; moreover, national jurisdictions can preempt an ICC prosecution, by notifying the Court that they are able and willing to investigate the relevant case: the principle of complementarity. (12) Thus, these principles--gravity and complementarity--pose an additional admissibility hurdle for potential ICC prosecutions.

3. Bolton's Remarks and the New American Policy on the ICC

   National Security Advisor John Bolton delivered a speech on September 10, 2018, in which he announced a new United States' policy vis-a-vis the ICC. (13) Bolton's remarks contained several errors regarding the ICC's structure, jurisdictional reach, and internal accountability mechanisms. This section will outline some of these errors. In addition, this section will highlight some of Bolton's remarks that contained new policy guidelines vis-a-vis the ICC, where such guidelines are misguided and detrimental to United States' interests.

   Bolton argued in his speech that "[t]he ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States." (14) It is incorrect that the ICC and its Prosecutor have "enormous" or "unaccountable powers." The ICC's jurisdiction is limited temporally as well as rationae materiae: the Court has prospective jurisdiction, starting in 2002, and it can only exercise jurisdiction over genocide, crimes against humanity and war crimes. (15) The crime of aggression was recently added to the Court' Statute, but the addition was complex and will require states to "opt-in" to jurisdiction over this new crime. (16) In addition, the ICC is constrained by the application of principles of gravity and complementarity. (17) The ICC was established to exercise its jurisdiction over persons for the most serious crimes of international concern. Article 17(1)(d) of the Rome Statute provides that a case is inadmissible before the ICC if the case is not of sufficient gravity to justify further action by the Court. (18) Thus, cases which involve less "serious" crimes may not satisfy the ICC's gravity threshold and may never be prosecuted before this Court. (19) In addition, the ICC is not supposed to interfere with national prosecutions, and the Court should only prosecute suspects if a state is not able or willing to prosecute. (20) According to Article 17(1)(a) of...