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Why Is the Trump Administration Threatening the International Criminal Court?

CounterSpin interviews Jamil Dakwar on the International Criminal Court.

Secretary of State Mike Pompeo, National Security Adviser John Bolton and United States Ambassador to the United Nations Nikki Haley brief the media during the United Nations General Assembly on September 24, 2018, in New York City.

Janine Jackson: John Bolton, currently Trump’s national security advisor, savors violent imagery. The International Criminal Court, Bolton wrote last year — referring to the international body founded in 1998 to prosecute war crimes — should be “strangle[d]… in its cradle.” This week, in a speech to the Federalist Society, broadcast by C-SPAN, Bolton declared the ICC “the founders’ worst nightmare come to life” and “dead to us,” an “outright dangerous” entity from whom the US “will use any means necessary to protect its citizens.”

Yes, this is bombast — typical “the US makes its own rules,” “if you aren’t for us you’re agin’ us,” “diplomacy is for suckers” chest-thumping. Reuters called it taking a “tough stance.” The New York Times chose“unyielding.” But what should those interested in peace and justice think? And what do others around the world think, when the US declares itself officially unaccountable when it comes to the worst kinds of crimes?

We’re joined now by Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program and an adjunct lecturer at the John Jay College of Criminal Justice. He joins us by phone from here in New York City. Welcome to CounterSpin, Jamil Dakwar.

Jamil Dakwar: Thank you for having me.

The Washington Post, for its part, took issue editorially with Bolton’s threatening remarks, because the ICC is too unimportant to bother with; it’s just a “personal bugaboo,” in their words — which sounds kind of like another way of making his point. So what, first of all, is the role of the ICC in the world? How is it meant to function?

The ICC, which was founded, as you said, in ’98, by a treaty that was negotiated — the United States was part of the negotiations, made some changes, actually, and some amendments were introduced in order to accommodate, so to speak, the United States. And the court started to function and was up to speed and running in July of 2002.

It has now about 123 countries that ratified this treaty, called the Rome Statute. The United States initially signed the treaty during the Clinton administration, then the Bush administration in the early 2000s, and shortly after 9/11, announced to the world that they are not interested in ratifying the treaty, and just left it there.

The court is really one of the most important judicial bodies that is in charge of investigating and prosecuting gross violations of international law, particularly war crimes, crimes against humanity and genocide. Most recently, the member states that ratified the statute, the Rome Statute, this treaty, added the crime of aggression to it. But it has a little bit of a different jurisdiction for that crime, and we can talk more about that.

But the most important thing that this court is doing, really, is to ensure that there’s accountability and to fight impunity for these really very, very serious crimes under international law. And it works as a court of last resort, meaning it’s not something that you go to the first thing, after terrible crimes, as war crimes happen, but they really try to wait and see what are the governments [doing] that are party to an armed conflict — in most of the situations that they investigate; they do investigate other situations that are not an armed conflict — and they ensure that those crimes are fully investigated, that they are credible investigations, that the countries are willing and able to hold perpetrators accountable. And if that is the case, they just don’t do anything; they just monitor from a distance. But when governments fail to take action, and they show that they are not genuinely really engaging in investigating war crimes and other serious crimes, they step in. And this is really why they are called a court of last resort.

Often people think that, “Oh, this is the first thing that they do. They are going to investigate anyone who’s committed war crimes.” In fact, they don’t have the capacity; even if they wanted to, even if they had the jurisdiction, to investigate war crimes all over the world, they don’t have that capacity. And they are really built as a way to ensure that no impunity prevails, that there’s some sort of accountability for victims.

It seems very important to say: They are not proactively going around the world, deciding that crimes have been committed. It’s when countries fail to do their own investigation that then the ICC sees fit to step in.

Well John Bolton, of course, would not miss any chance to say, “International law is not the boss of us,” but the timing of this particular speech seems to be meaningful, isn’t it, in terms of what the ICC is doing at the moment?

Yes, absolutely. First of all, it’s the timing, when the US, under the Trump administration, is going on an unprecedented attack on international bodies, particularly the ones that have consistently resisted United States hegemony and United States diktat, in terms of ensuring that there will be respect for human rights, ensuring that there will be accountability, ensuring that there will not be just the United States’ interests that are really protected out there, but are really consistent with international law and consistent with particularly UN charter, of ensuring peace, security and protection of individual human rights.

So there is a general attack on international bodies that this Trump administration have shown a determination, withdrawing from the UN Human Rights Council, as we’ve seen last June; the US also has been pulling out of negotiations leading up to the global migration pact, which was a really important international pact that would address the root causes of migration and protection of migrants. And there are other examples of how the United States has really shown disrespect and disregard to international law and accountability.

And here the case is even more troubling, because the United States is sending a message to the ICC that “we are going to boycott you, we will not cooperate with you, we will sever all cooperation,” the very limited one that was developed over the years, even though the United States is not a party to the court. The Trump administration is telling the court that, “If you decide to move into a full investigation into war crimes committed by US forces in Afghanistan, we will then take punitive measures against your staff, against the judges, against prosecutors. We will freeze their assets, if they have any assets in the United States. We will ban their travel into the United States.” Really very dangerous threats that were made by John Bolton.

And why is all that? It’s literally an attempt to intimidate judges and prosecutors, who were basically telling the United States over the last several years, “You have an obligation under your own laws and under treaties that you ratified, including the Geneva Conventions, as well as the Torture Convention, to investigate, and fully investigate and independently investigate, and prosecute those who committed acts of torture.”

And the United States had very, very well documented reports by — the last one was very known, maybe, to your listeners, the Senate Torture Report that was released by the Senate Intelligence Committee in December of 2014, which documented the secret detention and torture of about 119 individuals in CIA secret prisons. Some of these prisons were located in Afghanistan, starting in 2002 and onward. Then the CIA created additional prisons in countries like Lithuania, Poland and Romania, and they transferred individuals who were held by the CIA to these secret locations and tortured them.

So the ICC essentially was telling the United States, “You have an obligation to investigate.” They have not made that announcement because the United States is a party, but because Afghanistan is a member of the court. And that is really important for your listeners to understand: Although the United States is not a member of this treaty, did not ratify it, it acted on Afghan soil; it had troops in Afghanistan that were operating, and they committed war crimes and crimes against humanity, that have consequences under Afghanistan treaty obligations. And because Afghanistan is party to the court since May of 2003, the ICC has jurisdiction to investigate and to potentially prosecute individuals who will be found to have had a responsibility to commit acts of torture.

So this is why we are now in a position where John Bolton is trying to send an intimidating message to these prosecutors and judges not to take the case — the full investigation against the United States — even though this investigation, by the way, is not only against the United States officials or members of the armed services or the CIA agents, it involves all parties to the conflict in Afghanistan. It includes the Taliban. It includes Afghan forces. It includes other allied forces, like the UK, and others who operate in Afghanistan and may have committed war crimes.

The torture in Afghanistan by US forces was not just a few bad apples, was not just a few members of the military or the CIA who went rogue, and they committed acts of violence and torture against detainees.

The acts that were committed there were part of a policy of the United States. One program was under the secretary of Defense at the time, Donald Rumsfeld, that had authorized the use of torture. And then the second one was under the CIA, where they operated separately from the military, and had its own and even worse program that resulted in the use of torture — ”cruel, inhuman or degrading treatment” — that are violations of the Geneva Conventions, violations also of the ICC’s Rome Statute, because Afghanistan was a party.

So even though the United States has never really taken full responsibility over serious crimes in Afghanistan, that doesn’t mean that the crimes were not committed. The United States says — and that’s something that Bolton mentioned in his speech — that the United States has a robust judicial system and independent investigative bodies, and if we make mistakes, we may correct them. And yet the record, the facts show that we actually did not make any corrections with regard to the CIA program. We have not seen a full investigation.

The one that was opened during the Obama administration was very limited in scope. It did not look at the whole program. It did not have, to our understanding, a full access to all the information that was collected by the Senate Intelligence Committee. It did not have the authority, as independent counsel would have, to go after the fact and to establish fact. And it certainly excluded certain crimes, because they tried to establish certain kinds of protection to certain members of the CIA by saying, “If you followed in good faith legal advice that was given to you, and you committed acts of torture, you may not be held liable; you may not be held responsible.” And so that’s part of what the problem was with the investigation.

So we see that the United States failed to investigate its own forces in Afghanistan, including the CIA; as you said, that’s why the ICC is stepping in. It is stepping in because they see that these wrongs and these crimes, if they are not investigated and prosecuted, then most likely this will happen again in the next armed conflict the United States will be involved in.

The other thing that Bolton was trying to say is the ICC will be able to prosecute, investigate, acts of aggression, and he’s just using fearmongering, really, and this is incorrect information. The crime of aggression that was added to the ICC jurisdiction is only applicable to those members of the court. So if you are not member of the court, or your officials are not a member of the court, they will not be going after you, they will not be going after your officials or members of your armed services. And even for those members of the court, they have to accede, they have to accept the jurisdiction over the crime of aggression.

So Bolton not only attacked, threatened and intimidated — and in order to intimidate the court, he used fearmongering and he used misinformation in order to show as if he has a case to be made against the ICC, while we know that the purpose of his speech is to destroy the court, is to really undermine legitimacy of the court in the eyes of Americans, in the eyes of the world.

I think most Americans who go to war as part of the US armed services, they take the oath protecting, defending the Constitution, and I think part of that oath is also defending the ratified treaties, which are part of the law of the land.

Geneva Convention is part of the law of the land. Every single person who goes through the military takes that oath. This is part of the training. You do not — in any circumstances — torture individuals, torture detainees, and that is just the golden rule.

And yet the Bush administration at the time, and the military and the CIA, had an even worse version of it, violated all these rules that are really at the core of any training of US soldiers, that you would never subject detainees — people in US custody abroad — to torture and other forms of cruel, inhumane and degrading treatment.

And so I think that when Bolton says, “What do we say to those members of the armed services,” I think he owes them an apology. He owes them an explanation. Why would the United States allow such a regime of torture to take place?

We’ve been speaking with Jamil Dakwar, director of the ACLU’s Human Rights Program. You can find their work on this and on other issues online at Jamil Dakwar, thank you very much for joining us this week on CounterSpin.

Thank you very much for having me on.

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