John Bolton

Address to the Federalist Society on the International Criminal Court

delivered 10 September 2018

[AUTHENTICITY CERTIFIED: Text version below transcribed directly from audio]

Well, thank -- thank you very much, Gene [Eugene B. Meyer], for your kind introduction. I want to thank you as well as Dean Reuter for the invitation to be here today. It's a real honor.

The Federalist Society's made an enormous difference in American law and the legal profession. As Gene mentioned, when I was in law school it was a pretty small crowd. In fact, at the time I was there Bob Bork was nominated to be Solicitor General by President Nixon. And Ralph Winter [ph] said, looking at -- at that nomination, that the first sentence in the New York Times story the next day morning should be: 'Yesterday, President Nixon appointed as his new Solicitor General 20% of all the conservatives at Yale Law School.'" So obviously times have changed, due in no small part to the -- to the Federalist Society. And I'm really grateful for this opportunity.

I'm here to make a major announcement on U.S. policy toward the International Criminal Court, or ICC. After years of effort by self-styled "global governance" advocates, the ICC, a su[pr]anational tribunal that could supersede national sovereignties and directly prosecute individuals for alleged war crimes, was agreed [to] in 1998. For ICC proponents, this su[pr]anational, independent institution has always been critical to their efforts to overcome the perceived failure of nation-states, even those with strong constitutions, representative governments, and the rule of law.

In theory, the ICC holds perpetrators of the most egregious atrocities accountable for their crimes, provides justice to the victims, and deters future abuses. In practice, however, the court has been ineffective, unaccountable, and indeed, outright dangerous. Moreover -- [breaks off to respond to ongoing verbal interruptions]. This is Code Pink, my friends who follow me around. So I -- I apologize for the background noise, but there we go.

Moreover, the largely [un]spoken but always central aim of its most vigorous supporters was to constrain the United States. The objective was not limited to targeting individual U.S. service members, but rather America's senior political leadership, and its relentless determination to keep our country secure.

The ICC was formally established in July 2002, following the entry into force of the Rome Statute. In May 2002, however, President George W. Bush authorized the United States to "un-sign" the Rome Statute because it was fundamentally illegitimate. The ICC and its prosecutor had been granted potentially enormous, essentially unaccountable powers,
and alongside numerous other glaring, significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American people and the sovereignty of the United States.

In no uncertain terms, the ICC was created as a free-wheeling global organization claiming jurisdiction over individuals without their consent.

According to the Rome Statute, the ICC has authority to prosecute genocide, war crimes, crimes against humanity, and crimes of aggression. It claims "automatic jurisdiction," meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.

Thus, American soldiers, politicians, civil servants, private citizens, and even all of you sitting in this room today, are purportedly subject to the court's prosecution should a party to the Rome Statute or the chief prosecutor suspect you of committing a crime within a state or territory that has joined the treaty.

To protect American service members from the ICC, in 2002 Congress passed the American Service-Members' Protection Act, or ASPA, which at the time some dubbed the "The Hague Invasion Act."

This law, which enjoyed broad bipartisan support, authorizes the President to use all means necessary and appropriate, including force, to shield our service members and the armed forces of our allies from ICC prosecution. It also prohibits several forms of cooperation between the United States and the court.

I was honored to lead the U.S. efforts internationally to protect Americans from the court's unacceptable overreach, starting with un-signing the Rome Statute. At President Bush's direction, we next launched a global diplomatic campaign to protect Americans from being handed over to the ICC. We negotiated over a hundred binding, bilateral agreements to prevent other countries from delivering U.S. personnel to the ICC. It remains one of my proudest achievements.

Unfortunately, we were unable to reach agreement with every nation in the world, particularly those in the European Union, where the global governance dogma is strong. And last fall, our worst predictions about the ICC's professed and overbroad prosecutorial powers were confirmed.

In November of 2017, the ICC prosecutor requested authorization to investigate alleged war crimes committed by U.S. service members and intelligence professionals during the war in Afghanistan -- an investigation neither Afghanistan nor any other state party to the Rome Statute requested. Literally any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily signed on to go into harm's way to protect our nation, our homes, and our families in the wake of the 9/11 attacks.

The ICC prosecutor has requested to investigate these Americans for alleged detainee abuse, and perhaps more -- an utterly unfounded, unjustifiable investigation. Today, on the eve of September the 11th, I want to deliver a clear and unambiguous message on behalf of the President of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.

We will not cooperate with the ICC.

We will provide no assistance to the ICC.

And we certainly will not join the ICC.

We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.

The United States bases this policy on five principal concerns about the court, its purported authority, and its effectiveness.

First, the International Criminal Court unacceptably threatens American sovereignty and U.S. national security interests. The prosecutor in -- The prosecutor in The Hague¹ claims essentially unfettered discretion to investigate, charge, and prosecute individuals, regardless of whether their countries have acceded to the Rome Statute.

The court in no way derives these powers from any grant of consent by non-parties to the [Rome] Statute. Instead, the ICC is an unprecedented effort to vest power in a su[pra]national body without the consent of either nation-states or the individuals over which it purports to exert jurisdiction. It certainly has no consent what[soever] from the United States. As Americans, we fully understand that consent of the governed is a prerequisite to true legitimacy, and we reject such a flagrant violation of our national sovereignty.

To make matters worse, the court's structure is contrary to fundamental American principles, including checks and balances on authority through the separation of powers. Our Founders believed that a division of authority among three separate branches of government would provide the maximum level of protection for individual liberty.

The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch -- the Office of the Prosecutor -- is an organ of the court. The framers of our constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. Other governments may choose systems which reject the separation of powers, but not the United States. There are no adequate mechanisms to hold the court and its personnel accountable or curtail its unchecked powers when required.

ICC proponents argue that corrupt or ineffective judges can be removed by a two-thirds vote of parties to the Rome Statute and that a prosecutor can be removed by a majority vote. However, I ask everyone in this room today: Would you consign the fate of American citizens to a committee of other nations, including Venezuela and the Democratic Republic of the Congo, and entities that are not even states, like the Palestinian Authority? You would not. I would not. And this Administration will not.

The ICC's Assembly of States Part[ies] cannot supervise the court any more than the United Nations General Assembly can supervise the UN bureaucracy. Recent allegations of mismanagement and corruption among ICC personnel make this perfectly clear. The first prosecutor elected by the Assembly of States Parties attempted to protect a high-ranking government official from prosecution, assisted a businessman with links to violations in Libya, and shared confidential court documents with Angelina
Jolie. I can't imagine why.

In short, the International Criminal Court unacceptably concentrates power in the hands of an unchecked executive who is accountable to no one. It claims authority separate from and above the Constitution of the United States. It is antithetical to our nation's ideals. Indeed, this organization is the Founders' worst nightmare come to life: an elegant office building in a faraway country that determines the guilt or innocence of American citizens.

Second, the International Criminal Court claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the court's unfettered powers. The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC. Had the ICC existed during the Second World War, America's enemies would no doubt be eager to find the United States and its allies culpable for war crimes for the bombing campaigns over Germany and Japan.

The (quote) "crime of aggression" could become a pretext for politically motivated investigations. Was the mission of U.S. Navy SEALs that killed Osama bin Laden in Pakistan a crime of aggression? What about the U.S. and coalition airstrikes in Syria to protect innocent children from chemical weapons? How about U.S. military exercises with allies and partners around the world? Or Israel's actions to defend itself on countless occasions?

In the years ahead, the court is likely only to further expand its jurisdiction to prosecute ambiguously defined crimes. In fact, a side event at the Assembly of States Parties recently [in]cluded a panel discussion on the possibility of adding "ecocide," environmental and climate-related crimes, to the list of offenses within the court's jurisdiction.

And here we come directly to the unspoken but powerful agenda of the ICC's supporters: the hope that its essentially political nature, in defining crimes such as "aggression," will intimidate U.S. decision-makers and others in democratic societies. As we know, the ICC already claims authority over crimes committed in States Parties, even if the accused are not from nations that have acquiesced to the Rome Statute. The next obvious st[ep] is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague's bureaucrats.

Third, the International Criminal Court fails in its fundamental objective to deter and punish atrocity crimes. Since its inception in 2002, the court has spent over 1.5 billion dollars while attaining only eight convictions. This dismal record is hardly a deterrent to dictators and despots determined to commit horrific atrocities. In fact, despite ongoing ICC investigations, atrocities continue to occur in the Democratic Republic of the Congo, Sudan, Libya, Syria, and many other nations.

The hard men of history are not deterred by fantasies of international law such as the ICC. The idea that faraway bureaucrats and robed judges would strike fear into the hearts of the likes of Saddam Hussein, Hitler, Stalin, and Gaddafi is preposterous, even cruel. Time and again, history has proven that the only deterrent to evil and atrocity is what Franklin Roosevelt once called "the righteous might"² of the United States and its allies -- a power that, perversely, could be threatened by the ICC's vague definition of aggression crimes.

Thus, we see, paradoxically, that the dangers of the International Criminal Court stem from both its potential strength and its manifest weakness.

Fourth, the International Criminal Court is superfluous, given that domestic U.S. judicial systems already hold American citizens to the highest legal and ethical standards. U.S. service members in the field must operate fully in accordance with the laws of armed conflict. When violations of law do occur, the United States takes appropriate and swift
action to hold perpetrators accountable. We are a democratic nation with the most robust system of investigation, accountability, and transparency in the world. We believe in the rule of law, and we uphold it. We don't need the ICC to tell us our duty or second-guess our decisions.

ICC proponents argue that robust domestic judicial systems are fully consistent with the court because of the so-called complementarity principle. According to its supporters, the ICC functions only as a "court of last resort." If nations have taken appropriate steps to prosecute perpetrators of crime, the ICC will take no further action -- they say.

And yet, there is little precedent for the ICC to determine how to apply the complementarity principle. How is the ICC prosecutor to judge when the principle has been met? Under what circumstances will the ICC be satisfied? How much sensitive documentation would the ever-toiling bureaucrats in The Hague demand from a sovereign government? And here's the key question: Who has the last word? If it's the ICC, the United States would manifestly be subordinated to the court. That is unacceptable.

If the ICC prosecutor were to take the complementarity principle seriously, the court would never pursue an investigation against American citizens, because we know that the U.S. judicial system is more vigorous, more fair, and more effective than the ICC. The ICC prosecutor's November 20[17] request that I mentioned a moment ago, of course, proves that this notion, and thus the principle of complementarity, is completely farcical. The ICC prosecutor will pursue what investigations he chooses to pursue, based upon his own political motives, and without any serious application of the complementarity principle.

Fifth, the International Criminal Court's authority has been sharply criticized and rejected by most of the world. Today, more than 70 nations, representing two-thirds of the world's population, and over 70 percent of the world's armed forces, are not members of the ICC.

Several African nations have recently withdrawn or threatened to withdraw their membership, citing the disproportionate number of arrest warrants against Africans. To them, the ICC is just the latest European neo-colonial enterprise to infringe upon their sovereign rights.

Israel too has sharply criticized the ICC. While the court welcomes the membership of the so-called "State of Palestine," it has threatened Israel -- a liberal, democratic nation -- with investigation into its actions in the West Bank and Gaza to defend its citizens from terrorist attacks. There has also been a suggestion that the ICC will investigate Israeli construction of housing projects on the West Bank. The United States will always stand with our friend and ally, Israel. And today, reflecting congressional concern with Palestinian attempts to prompt an ICC investigation of Israel, the Department of State will announce the closure of the Palestine Liberation Organization office here in Washington, DC.

As President [Ronald] Reagan recognized in this context, the Executive has "the right to decide the kind of foreign relations, if any, the United States will maintain,"³ and the Trump Administration will not keep the office open when the Palestinians refuse to take steps to start direct and meaningful negotiations with Israel. The United States supports a direct and robust peace process, and we will not allow the ICC, or any other organization, to constrain Israel's right to self-defense.

In sum, an international court so deeply divisive and so deeply flawed can have no legitimate claim to jurisdiction over the citizens of sovereign nations that have rejected its authority. Americans can rest assured that the United States will not provide any form of legitimacy or support to the court. We will not cooperate, engage, fund, or assist the ICC in any way. The President will not allow American citizens to be prosecuted by foreign bureaucrats, and he will not allow other nations to dictate our means of self-defense.

We take this position not because we oppose justice for the victims of atrocities, but because we believe that perpetrators should face legitimate, effective, and accountable prosecution for their crimes, by sovereign national governments.

In April of 2016, it was right here at the Mayflower Hotel, that President Trump gave his first major foreign policy address during his campaign. At that time, candidate Trump promised he would (quote) "always put the interests of the American people and American security above all else."⁴ Today, it is fitting that we reassert this fundamental promise within these walls.

This afternoon, we also make a new pledge to the American people: If the court comes after us, Israel, or other U.S. allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers' Protection Act and our other legal authorities:

[1] We will negotiate even more binding, bilateral agreements to prohibit nations from surrendering U.S. persons to the ICC. And we will ensure that those we have already entered are honored by our counterpart governments.

[2] We will respond against the ICC and its personnel to the extent permitted by U.S. law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system.

[3] We will do the same for any company or state that assists an ICC
investigation of Americans.

[4] We will take note if any countries cooperate with ICC investigations of the United States and its allies, and we will remember that cooperation when setting U.S. foreign assistance, military assistance, and intelligence sharing levels.

[5] We will consider taking steps in the UN Security Council to constrain the court's sweeping powers, including ensuring that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute.

This Administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom. We will stand up for the U.S. Constitution abroad, just as we do at home. And, as always, in every decision we make, we will put the interests of the American people first.

Thank you very much. Thank you. Thank you very much. Boy, I hope that's clear to everybody.

Book/CDs by Michael E. Eidenmuller, Published by McGraw-Hill (2008)

¹ Wikipedia entry: "The Hague is known as the home of international law and arbitration. The International Court of Justice, the main judicial arm of the United Nations, is located in the city, as well as the International Criminal Court, the Permanent Court of Arbitration, Europol, and approximately 200 other international governmental organisations." [Source: https://en.wikipedia.org/wiki/The_Hague]

² FDR used the phrase in his Pearl Harbor address to the nation. Extended quotation: "No matter how long it may take us to overcome this premeditated invasion [by Japan], the American people in their righteous might will win through to absolute victory." [emphasis added]

³ Extended quotation: "Section 1003 of the [Foreign Relations Authorization] Act prohibits the establishment anywhere within the jurisdiction of the United States of an office ``to further the interests of'' the Palestine Liberation Organization. The effect of this provision is to prohibit diplomatic contact with the PLO. I have no intention of establishing diplomatic relations with the PLO. However, the right to decide the kind of foreign relations, if any, the United States will maintain is encompassed by the President's authority under the Constitution, including the express grant of authority in Article II, Section 3, to receive ambassadors. I am signing the Act, therefore, only because I have no intention of establishing diplomatic relations with the PLO, as a consequence of which no actual constitutional conflict is created by this provision." [Source: https://www.reaganlibrary.gov/research/speeches/122287e]

⁴ Extended quotation: "I’d like to talk today about how to develop a new foreign policy direction for our country, one that replaces randomness with purpose, ideology with strategy, and chaos with peace. It’s time to shake the rust off America’s foreign policy. It’s time to invite new voices and new visions into the fold, something we have to do. The direction I will outline today will also return us to a timeless principle. My foreign policy will always put the interests of the American people and American security above all else. It has to be first. Has to be." [emphasis added; source: https://time.com/4309786/read-donald-trumps-america-first-foreign-policy-speech/]

Original Audio: Direct link to https://fedsoc.org/events/national-security-advisor-john-r-bolton-address

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