Introduction International Courts and Tribunals The International Criminal Court (ICC) International Court of Justice (ICJ) Treaties and International Agreements Human Rights Conclusion Introduction
Thanks Michael, it is great to be here at Case Western Reserve University School of Law.
I am delighted to see so many friends, former colleagues, and especially former members of the Legal Adviser's office both as speakers and in the audience.
As many of you know, Dean Scharf and Paul Williams, both alumni of the Legal Adviser's office, edited an excellent book a few years ago about the Office of the Legal Adviser, entitled "Shaping Foreign Policy in Times of Crisis," which included essays and interviews by ten former Legal Advisers. (1) Michael and Paul gave me an opportunity to reflect on my four eventful years as Legal Adviser from 2005 to 2009. They also gave me my first paycheck after leaving government, for which I am grateful.
I want to single out two other speakers for recognition. Todd Buchwald, with whom I worked closely for all eight years while I was NSC and State Department Legal Adviser, is one of the best lawyers and public servants I have ever known. Whenever I needed trustworthy advice on the knottiest of legal issues, I would turn to Todd. His retirement earlier this year was a huge loss for the State Department. And I want to recognize our other keynote speaker, Elisa Massimino, who left Human Rights First earlier this year after twenty-seven years, including ten years as President. Elisa would meet with me regularly when I was Legal Adviser and we have worked closely together for the last nine years. In my mind, she is a model human rights advocate--calm, measured, and persuasive. Elisa's retirement earlier this year was an equal loss to the human rights community. I want to applaud both Todd and Elisa for their past service and to say I look forward to their future contributions.
As many of you know, two years ago in August 2016, I drafted a statement of fifty former national security officials who had served in Republican administrations in which we said that Donald Trump lacks the "character, values, and experience to be President." (2) Here are a few quotations from the statement:
* "He weakens U.S. moral authority as the leader of the free world. He appears to lack basic knowledge about and belief in the U.S. Constitution, U.S. laws, and U.S. institutions ..." (3)
* "[H]e persistently compliments our adversaries and threatens our allies and friends." (4)
* He continues to display an alarming ignorance of basic facts of contemporary international politics. (5)
* He is unable or unwilling to separate truth from falsehood. He does not encourage conflicting views. He lacks self-control and acts impetuously. He cannot tolerate personal criticism. (6)
We concluded by saying that, "[W]e are convinced that he would be a dangerous President and would put at risk our country's national security and well-being." (7) If elected, we said he would be "the most reckless President in American history." (8)
From a national security perspective, the last twenty months of President Trump's presidency have been even worse than many of us imagined. Rather than making the United States respected around the world, President Trump has withdrawn from international agreements, (9) launched destabilizing trade wars with China and Europe, (10) criticized and undermined NATO, (11) picked fights with our closest allies, (12) gutted our State Department, (13) stoked unnecessary international controversies, (14) and praised dictators and authoritarian leaders like Kim Jung Un and Vladimir Putin. (15) Rather than exercising American diplomatic and moral leadership, as past Presidents have done, President Trump has isolated the United States from the rest of the world more than at any point in history.
But what is the Trump administration's approach to international law and institutions?
As a candidate, Donald Trump famously attacked numerous international agreements negotiated by his predecessors, including NAFTA, TPP, the Paris Climate Change Agreement, and the Iran deal. (16) In Trump's view, each of these was the "worst deal" ever negotiated. (17) Candidate Trump even criticized the "eggheads" who negotiated the Geneva Conventions after he was told that the Geneva Conventions prohibited torture. (18)
Early in the Trump administration, my friend and former colleague, Jack Goldsmith, wrote at Lawfare that "we are witnessing the beginnings of the greatest presidential onslaught on international law and international institutions in American history." (19) For much of the last eighteen months, I had thought this assessment was exaggerated. Although the President and his administration took numerous policy actions with which I disagreed vigorously (such as the travel ban, the trade wars, and the withdrawal from Paris and the Iran agreements), none of them were really direct attacks on international law and institutions.
One reason for this may have been that President Trump himself did not have enough experience with international law and courts to have strong views about them. Moreover, his initial senior national security advisers--Rex Tillerson, Jim Mattis, and HR McMaster--were not international law skeptics. Far from encouraging the President to attack international law, they apparently urged him to comply with it. (20) And none of the administration's national security lawyers entered the administration with a strong anti-international law bias.
Perhaps as a result, despite numerous other controversial international actions, for its first 18 months, the Trump administration did not engage in direct attacks on international law and institutions.
This approach may now be changing. With the appointment of John Bolton as National Security Advisor in March, (21) the administration appears to be taking a more aggressive approach. Ambassador Bolton is well-known for his skepticism, if not hostility, towards international law and international institutions. (22) Since taking office, he has strongly criticized the International Criminal Court and the International Court of Justice. (23) He personally announced the closing of the PLO Office in Washington as well as the United States' withdrawal from the Treaty of Amity with Iran and the Optional Protocol to the Vienna Convention on Diplomatic Relations. (24) The United States also announced that it would withdraw from the U.N. Human Rights Council. (25) These actions may reflect the beginning of the "presidential onslaught on international law and international institutions" that Jack Goldsmith predicted. (26)
In this essay, I will address the Trump administration's approach to international courts and tribunals, to treaties and international agreements, and to international human rights.
International Courts and Tribunals
Let me start with the Trump administration's approach to international courts and tribunals, starting with the International Criminal Court, which was the principal subject of Ambassador Bolton's speech on September 10. (27)
The International Criminal Court (ICC)
As most of you know, the U.S. Government has had a turbulent relationship with the ICC. During the Clinton administration, the United States participated actively in the negotiations of the Rome Statute, the treaty that created the ICC, but ultimately voted against the final text because of concerns that the treaty lacked sufficient safeguards against politically motivated investigations of Americans. (28) Although President Clinton ultimately authorized U.S. negotiators to sign the treaty, he said that the U.S. would not submit it to the Senate for approval until U.S. concerns were addressed. (29) In its first term, the Bush administration adopted a hostile approach towards the ICC. Ambassador Bolton, when he was Under Secretary of State, sent a letter to the U.N. Secretary General in 2002 informing the U.N. that the U.S. did not intend to become a party to the Rome Statute--this became known as the U.S. "unsigning" of the Rome Statute. (30) Ambassador Bolton reportedly said that this was the "happiest day of his life." (31) In its second term, the Bush administration adopted a more pragmatic approach to the ICC. While continuing to dispute ICC jurisdiction over Americans, it agreed to the U.N. Security Council resolution referring the Darfur genocide for investigation by the ICC and President George W. Bush waived restrictions on counterterrorism assistance to many ICC members after Secretary of State Condoleezza Rice publicly remarked in 2006 that the restrictions were like "shooting ourselves in the foot." (32) During its eight years, the Obama administration continued the Bush administration's pragmatic approach to the ICC, offering assistance to the ICC for certain investigations while continuing to dispute the ICC's jurisdiction over Americans. (33)
Somewhat surprisingly, given historic opposition among conservative Republicans towards the ICC, the Trump administration did not criticize the ICC for its first twenty months. (34) This quiet was all the more surprising because the ICC Prosecutor had recommended in December 2017 that the ICC's pre-trial chamber authorize the initiation of an investigation of United States' treatment of detainees in Afghanistan and also at CIA facilities in Europe. (35) A decision by the pre-trial chamber is expected at any time. (36) Administration officials have been aware of the Prosecutor's recommendation but made no public comment about it for ten months.
That silence changed on September 10, 2018 when Ambassador Bolton fired a broadside at the International Criminal Court, which he called "ineffective," "unaccountable," "deeply flawed," and "outright dangerous." (37) He said the ICC unacceptably threatens American sovereignty and U.S. national-security interests. (38) He criticized the ICC Prosecutor's request to start an investigation of...