BOLTON’S BOLT

Through his national security adviser, Trump shakes the International Criminal Court’s foundations

By J Brooks Spector 13 September 2018

John Bolton, national security adviser, sits during a meeting with U.S. President Donald Trump and Jens Stoltenberg, secretary general of the North Atlantic Treaty Organization (NATO), not pictured, in the Cabinet Room of the White House in Washington, DC, USA, 17 May 2018. EPA-EFE/Andrew Harrer / POOL

In the midst of the Trump administration’s writhing over its own chaotic behaviour, and the impending mother of all hurricanes as it takes aim at the south-east coast, National Security Adviser John Bolton chose to invoke the wrath of America on the International Criminal Court and the Palestinian Liberation Organisation’s Washington office.

If you squint really tightly, glance obliquely at the distant scenery, and try to peer through the walls, it is just possible one will perceive a small measure of rationality or consistency in the most recent pronouncements by US National Security Adviser John Bolton on the International Criminal Court and the Palestine Liberation Organisation’s office in Washington. Maybe. Or not.

Of course, this has come along in the midst of yet more public squabbles about the import of Bob Woodward’s window into the appalling and chaotic inner workings of the Trump White House, and a general sense on the part of a significant number of his most senior officials that the US president is in the water, way over his depth.

Moreover, his inability to focus on anything else besides his own feelings and personality – for more than a millisecond – is seriously undermining the stability of the nation’s government. Making things worse is the ongoing hunt for the author of the anonymously penned Op-Ed that appeared in the New York Times. Things like this are absorbing much of the remaining energies in the president’s office, leaving less and less for real issues.

Whatever remaining energy there is still in the presidential lair seems to have gone into insisting the country is fully, totally, and completely prepared for the impending landfall of the humongous Hurricane Florence bearing down on the North and South Carolina shore and poised to hit on Thursday.

(In case anyone on the planet didn’t understand a thing about the nature of hurricanes, the president helpfully pointed out that a hurricane will bring “tremendous” amounts of water onto the land.)

Still less reassuring about federal capabilities in all this was the typical Trumpian boast that the relief effort in Puerto Rico following Hurricane Maria in 2017 had been a great, woefully under-reported success. This is despite a now-updated death toll to within a whisper of 3,000 victims. (By contrast, the epic disaster of Hurricane Katrina years before had resulted in about half that number of fatalities, less devastation, and, ultimately, quicker recovery efforts.)

Meanwhile, the president had gone on to the memorial in Shanksville, Pennsylvania that marked where the fourth 9/11 commercial airliner crashed when passengers attacked the hijackers who had earlier seized the plane with the intention of destroying the US Capitol building (or perhaps the White House).

True to form, Trump somehow could not restrain himself from making the day all about his own outsized ego (or was it his id or even his reptilian brain?), instead of the solemnity of the moment. There were his televised fist pumps into the air on arrival, and then his thoroughly wooden words of comfort that did virtually nothing to respond to the hunger of a nation for solace and consolation, 17 years after that unprecedented attack and the consequent memories of that day for millions.

And all of this comes as veteran Republican politicians are increasingly worried that Democrats may succeed in capturing a majority of seats in the House of Representatives. And there are even increasingly better odds they may gain a net couple of seats in the Senate where the GOP advantage is just razor thin.

Republicans are anxiously watching those survey results that show growing disapproval of the president’s performance as well as growing support for the ongoing Mueller investigation into Russian interference in the 2016 election and the possibilities of secret co-operation between the Trump campaign and Russian hackers and their sub rosa social media campaigns. The vexing question for Republicans, of course, is whether such increasingly negative feelings about the president will transfer over to nix the fortunes of various Republican candidates; this in a political and media environment where the president continues to suck up all the available oxygen from the actual GOP candidates standing in this midterm vote.

Then, riding into the midst of this maelstrom, has come National Security Adviser John Bolton with two announcements guaranteed to rile international waters even more than has already been the case from earlier Trump administration policies on a variety of fronts. Bolton disclosed that the Palestinian Liberation Organisation’s Washington office will be forced to shut down because the PLO had failed to negotiate in good faith with the Israelis for a final peace accord between Arabs and Israelis, the one presumably being designed and brokered by Jared Kushner, the first son-in-law.

Not too surprisingly, the PLO has argued vociferously that the waters had already been fatally harmed by America’s own actions – such as moving its embassy to Jerusalem and recognising that city as Israel’s capital, even when the final status of that city is, after all, one of the most contentious unsettled issues in the conflict. Moreover, the PLO has pointed out that American unilateral moves to cut or eliminate aid for the Palestinian population around the region, distributed either via UN agencies or directly through US foreign assistance, has further poisoned things and has made it abundantly clear that the Trump administration’s heart belongs to Bibi. There are those who see this decision as a punishment for threats to pursue prosecution of Israelis for war crimes against Palestinians, under the ICC’s ambit.

Then, just to make things more contested still, Bolton announced that any effort to make use of the International Criminal Court to prosecute presumed American war crimes in Afghanistan (or perhaps anyone held or interrogated as a putative terrorist in facilities in co-operating nations) is going to run into a real American buzz saw. Expect no help from the US in such efforts and prepare to face some real pushback against any investigators (and any countries helping them), let alone any attempts to visit the US to carry out such investigations

In point of fact, the US – just like China, India, Russia, Israel, Qatar, and a number of other Mideast nations – has not actually ratified the Rome Statute that established the ICC, and it would naturally oppose any effort to establish jurisdiction by the court over the behaviour of American personnel or its policies. But, for Americans, there may be the problem of the possible inclusion of nations where the interrogation or detention of terror suspects took place by American personnel or agencies. The nub of the problem is whether or not those nations might choose to co-operate with the ICC – perhaps by providing information on American actions? – in their circumstances as signatories to the statute. And how would that affect US relationships with those countries is a significant question.

Such nations may have invoked Article 98 (2) waivers, by virtue of their relationships with the US. As the Georgetown University Law Center guide on international law explains:

“The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender…

“Starting in 2002, the United States began negotiating these agreements with individual countries, and has concluded at least one hundred such agreements. Countries that sign these agreements with the United States agree not to surrender Americans to the jurisdiction of the International Criminal Court. The Coalition for the International Criminal Court lists 100+ agreements in its factsheet on the Status of US Bilateral Immunity Agreements.”

Further, an international lawyer we checked in with noted that regardless of the Bolton outbursts, it is likely the ICC will open an investigation of the war in Afghanistan, although that investigation will largely focus on crimes within Afghanistan, especially those committed by the Taliban. But it might also choose to look into such related questions as those CIA “black sites” in Poland, Lithuania and Romania.

In that regard, torture and incommunicado detention would have been violations of the ICC. The ICC does not have universal jurisdiction to investigate genocide or war crimes anywhere it wants, and only has jurisdiction when the crimes take place in the territory of a Rome Statute member state – or if they are committed by citizens of a member state.

Awkwardly for America, however, Afghanistan, Lithuania, Poland, and Romania do belong to the ICC. (The CIA also had a “black site” in Thailand, but Thailand does not belong to the ICC, so the court lacks jurisdiction.)

Moreover, the European Court of Human Rights has already investigated those black sites, and it has issued opinions on the question. Moreover, that blockbuster US Senate report on torture also contained information on those black sites. Accordingly, there is much evidence in the public domain.

The US helped to negotiate the Rome Statute, but never actually joined the ICC. The body was anathema to Republicans and the Pentagon, and the Bush Administration waged a diplomatic war (led by John Bolton) to force countries to promise never to extradite US personnel to The Hague, consistent with those Article 98 (2) waivers. (South Africa refused to sign such an agreement, but many African countries did.)

Our international lawyer further added:

“The Obama Administration never joined the ICC (the Senate would have revolted) but it did quietly work with the ICC on some issues. Even under Bush, the US supported the UNSC decision to give the ICC a mandate to investigate crimes in Sudan. Bolton is now freaking out because US soldiers and CIA officers could be implicated if Afghanistan and the other countries co-operate with the investigation. For obvious reasons, it is unlikely Afghanistan will co-operate. Lithuania, Poland and Romania are a different matter as they belong to the EU. Bolton’s threats of travel bans and economic sanctions are aimed at them.”

Of course, all of this fits into the long-running Trump-Bolton perspective that international, multilateral, global accords and international law more generally are an anathema to the US – and inevitably disadvantage America.

The quick withdrawal from the Paris Climate Accord, the TransPacific Partnership, and the still-ongoing wrangle over Nafta with Canada, have been clear signposts of this strongly-held perspective – even before Bolton had joined the Trump administration.

But, as The Washington Post editorialised on 13 September, on Bolton’s lightning bolt, given the real array of very real crises around the globe:

“It was remarkable to hear the content of John Bolton’s first significant public address as President Trump’s top foreign policy strategist: a narrow and essentially irrelevant assault on the International Criminal Court (ICC). Rather than address the most urgent challenges to US strategic interests, Mr. Bolton chose to champion a pet peeve.

“Mr. Bolton has crusaded against the ICC for decades, and spent much of his tenure in the George W. Bush administration trying to neuter the court. Though the court has its defects, some of his own colleagues regarded his efforts as, at best, a waste of time and, at worst, harmful: Mr. Bolton endangered security co-operation programs with key allies, such as Mexico, by insisting they sign agreements pledging never to co-operate with the ICC in a case involving an American ― an entirely theoretical prospect. Mr. Bolton called that pointless campaign ‘one of my proudest achievements’.”

Moreover, the paper went on to say:

“Mr. Bolton, nevertheless, has made it a priority to combat the possibility that the ICC could, some day, target a U.S. citizen. He announced a series of steps that would be taken ‘if the court comes after us, Israel, or other allies’, including imposing sanctions on its judges or ‘any company or state that assists an ICC investigation’. This, from an administration that has been resisting congressional legislation mandating sanctions on Russia if it again interferes in a U.S. election ― a far more tangible prospect.”

Even if an ICC pursuit of American actions in Afghanistan (or Israel’s under America’s protective umbrella, for that matter) actually comes to pass despite America’s deep, protracted, strident opposition, what these newest Boltonian pronouncements have also done is to make it more difficult for America to encourage the ICC to tackle egregious human rights abuses elsewhere – even extraordinarily grave, horrific ones that afflict many hundreds of thousands of innocents. And along the way, it may also have undercut the impact of America’s voice in exercising criticism of – just for starters, say – Russian actions in Syria, or China’s in Xinjiang. DM

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