Exaggerations and over-simplifications mar debate about John Bolton’s ICC Speech

A reply to Shannon Fyfe’s opinion contribution “Bolton is just plain wrong on the International Criminal Court” –

For someone who does not live in the USA and who worked at the International Criminal Court (ICC), the debate about John Bolton’s ICC-related remarks on 10 September 2018 appears like an almost grotesque boxing fight. 

In one corner, there is John Bolton. We all know John Bolton, he has been amongst the ICC critics for a while. In the Bush Administration, he was the Under Secretary of State for Arms Control and International Security and rejected any participation in the ICC-project from the outset. His attacks on the ICC in 2002 were as hostile as they are today. Bolton wants to win this boxing fight at any cost, so he is willing to use all rhetorical means necessary: exaggeration, generalisation and over-simplification.

Opposite to Bolton in the other corner: commentators, scholars, etc. They too would like to win this fight and they too sometimes tend to exaggerate, generalise and over-simplify (as an exception, see the posts of Dapo Akande and Jennifer Trahan). When it comes to the jurisdiction of the ICC, debates that are conducted in boxing-fight-style ignore the complexity of jurisdictional matters on the international level.{mosads}

Bolton asserts that the ICC “claims ‘automatic jurisdiction’, meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.” In her opinion contribution, Professor Fyfe – who published important scholarly contributions to the field of International Criminal Law – denies this: “There is no such thing as automatic jurisdiction over individuals at the ICC, only jurisdiction based on territory or nationality, and only under limited circumstances.” Neither Bolton nor Fyfe is entirely wrong or entirely right.

There have been two main opposing positions during the negotiations of the ICC Statute. States favourable to the Court argued that — first — a State was bound by the “automatic jurisdiction” (this term was explicitly used) of the Court as soon as that State becomes a party to the treaty, and — second — the Court must have universal jurisdiction.

States sceptical towards the ICC, led by the US delegation, opined that automatic jurisdiction might be appropriate for genocide, but needs to be complemented by other specific “jurisdictional links” for the other crimes. A clear majority of States supported automatic jurisdiction, albeit in combination with some exceptions proposed by South Korea. The final compromise is what is now Article 12 of the ICC Statute, which Professor Fyfe correctly links to several times.

Bolton knows the “automatic jurisdiction” controversy of 1998 all too well, and it is a cheap shot to suggest that it means that the ICC “can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.” But there are instances where Bolton’s scenario is correct. Take, for instance, the deportation of the Rohingya from Myanmar. Even though Myanmar is not a State Party, the ICC’s Pre-Trial Chamber recently decided that the ICC had territorial jurisdiction, because the crime against humanity of deportation “is forced displacement across international borders, which means that the conduct related to this crime necessarily takes place on the territories of at least two States” (para. 71). The Chamber explicitly addressed the prevention of a person “from returning to his or her own country” (para. 77) – so what if, as Kevin Jon Heller asked, President Trump prevented Mexican-American civilians from returning from Mexico (a State Party) to the USA (a Non-State Party)?

It should also not be overlooked that the “crime of aggression” Bolton is referring to is accompanied by separate, even more complex jurisdictional rules. These rules ensure that the USA could not be targeted by an ICC-investigation without a referral by the Security Council (the ACLU has drawn attention to this point elsewhere).

The ICC’s Office of the Prosecutor (OTP) asserts that “[m]embers of US armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014.” Both Fyfe and Bolton rightly point out that the USA were not a State Party (Fyfe overlooks that this is not because the U.S. “formally withdrew its signature from the Rome Statute in 2002” but because even though Clinton signed the treaty, he added a declaration: “I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” On May 6, 2002, the Bush Administration simply announced that the USA did not intend to become a party to the Rome Statute).

Afghanistan, however, is a State Party to the ICC. For Fyfe, the case is clear: “Afghanistan is a state party to the Rome Statute, meaning the precondition for the exercise of jurisdiction has been met.” This cuts short a complex and passionate debate – a debate that must start with the OTP’s “Request for authorisation of an investigation.” The OTP’s claim of the ICC having jurisdiction over US-nationals is suspiciously brief and relies on academic writing. This is nothing unusual in International Criminal Law and without an alternative in cases where there is no precedent (and that happens a lot). Thus, the OTP’s position is not set in stone as both Bolton and Fyfe suggest.

Michael Newton, for instance, opined in a (controversial but well received) article that Afghanistan could not convey judicial authority to the ICC over the alleged offenses because it does not enjoy exhaustive jurisdictional power (Vanderbilt Journal of Transnational Law, vol. 49, p. 404). Stephen Kay and Joshua Kern come to a similar result, providing an argument based on customary international law.

These competing voices are worth embracing instead of treating as obstacles to a short account of the ICC’s law. Nevertheless, Professor Fyfe should be applauded for bringing the discussion back to the legal facts and for her clarification of the ICC’s purpose, which is on point and refreshing.

Alexander Heinze is Assistant Professor at the Georg-August-University of Göttingen (Germany), Department for Foreign and International Criminal Law, a member of the International Law Association Committee on Complementarity, and a former visiting professional at the Appeals Chamber of the ICC.