The Washington Post’s board of editors attacks John Bolton for a speech in which he harshly criticized the International Criminal Court (ICC). The Post doesn’t defend the ICC. In an understatement, the Post agrees that “the court has its defects.” However, the editorial board castigates Bolton for using his “first significant public address” to talk about what the editors deem an irrelevancy.
The editors think Bolton should have discussed Syria, Venezuela, China, or Russia. They neglect to inform us that Bolton’s speech was to the Federalist Society. It’s neither shocking nor scandalous that Bolton would speak to this group of lawyers and others interested in law about international law, rather than about various world hotspots having nothing much to do with law.
Moreover, the Post fails to show that the ICC is irrelevant. It deems merely theoretical the possibility that Americans will be tried by this body. But, as the editors admit, investigators have begun an inquiry into possible war crimes in Afghanistan.
As the editors fail to note, the ICC prosecutor (a Gambian) requested authorization to investigate alleged war crimes committed by U.S. personnel in Afghanistan. She did so despite the fact that neither Afghanistan nor any nation that signed the Rome Agreement establishing the ICC requested such an investigation.
According to Bolton, the ICC prosecutor is looking into alleged abuse of detainees by Americans. She apparently also has the authority to investigate other matters including, presumably, cases in which the U.S. has inadvertently killed innocent civilians in Afghanistan.
Thus, in the face of the ICC’s investigation, it is well worth Bolton’s time to warn the ICC, as he did in his speech, that it will face major consequences if it decides to charge Americans with war crimes. And it was particularly appropriate for him to do so on the eve of the anniversary of 9-11, when the attack on the U.S. that triggered our engagement in Afghanistan occurred.
Bolton also warned the ICC of the consequences that charging Israel with war crimes would bring. The Post does not pretend that such charges are theoretical only. Nor could it. Earlier this summer, the ICC announced it will commence the pretrial phase of a war crimes case brought by the Palestinian Authority against our staunch ally.
The Post dismisses Bolton’s view of the ICC as a “pet peeve.” With this label, the Post begs the question of whether Bolton’s criticisms are substantial and meritorious.
They are both, as Bolton showed.
I have personal experience with the ICC. In the late 1990s, I was part of a team of lawyers that defended a war crimes case before that body.
Of the three judges who heard the case, only one was from a well-functioning democracy. In fact, if memory serves, one of the judges was from China.
Aspects of the proceedings were quite alien to our justice system. The main piece of evidence against our client was hearsay that was subject to no exception recognized in American law. It was admitted, “in the interests of justice.” The interests of justice as perceived by foreign judges, including one from China.
Looking over the current roster of ICC judges, my impression is that fewer of them come from undemocratic nations. On the other hand, Europe is now more anti-Israel and, indeed, more anti-U.S. than it was twenty years ago.
Check out the roster and decide for yourself whether Israeli and/or American warriors, intelligence officers, and senior officials would get a fair trial before the ICC. Consider, too, whether the U.S. should ever consent to having such personnel tried by foreigners, whichever countries they come from, for actions taken in the course of pursuing American policy.
These are questions the Post ducks by calling Bolton’s disdain for the ICC a “personal bugaboo.” It’s more accurate to say that John Bolton is among the Post’s personal bugaboos.