The American Civil Liberties Union has filed a Freedom of Information Act request for documents showing the legal analysis underpinning National Security Adviser John Bolton’s declaration earlier this month that the United States would sanction or prosecute International Criminal Court judges or staff who investigated or prosecuted Americans.
The request asks for any communications — including notes, memos, and even social media posts — between President Donald Trump’s inauguration and the present that pertain to the new policy toward the court, which Bolton presented Sept. 10 in a speech to the Federalist Society. The request was sent to both the State Department and to the Department of Justice’s Office of Legal Counsel.
Bolton’s speech was given as the court “was about to make a final decision to open an investigation in the context of the armed conflict of Afghanistan,” Jamil Dakwar, director of the human rights program at the ACLU, told BuzzFeed News. “From the US perspective, it seemed this was ... a threat to the impunity former Bush administration officials have enjoyed for years now.”
The announcement that the United States would sanction and prosecute ICC judges and personnel in the event Americans were investigated “seems to be a policy consistent with what Bolton stands for from the time he was in the Bush administration … but it’s not consistent with US law and international law,” Dakwar added.
Asked at a State Department press briefing what legal authority the administration had to freeze assets, impose travel bans, or prosecute ICC judges or personnel, State Department spokesperson Heather Nauert demurred. “We don’t get ahead of announcements or some decisions or deliberations that the US government may be making or may be taking in the future. So I’m not going to get ahead of anything that the administration may or may not be doing,” she said. She referred additional questions to Bolton’s office.
The United States never ratified the ICC. Former president Bill Clinton signed the convention, but did not present it to Congress, and former president George W. Bush authorized its “unsigning” in 2002. However, according to Bolton, the ICC claims “automatic jurisdiction,” which is to say that any individual can be prosecuted by the court, even if their governments aren’t part of the ICC.
Dakwar indicated he would take a dim view of the administration using national security as the reason for sanctioning ICC judges. “‘National security’ are not magic words the administration and president can invoke … [they] certainly do not give him a blank check to violate rights of individuals … unless we start to treat them [ICC judges and prosecutors] as drug traffickers or suspected terrorists, which would still need to have sort of legal authority under the law,” he said.
The FOIA request coincided with a letter sent by several human rights organizations to the UN’s assistant secretary-general for human rights, Andrew Gilmour, asking him to denounce Bolton’s comments and encourage the administration not to adopt any policy or practice that would hinder the ICC.
Trump has long expressed hostility toward multilateral organizations such as the UN, and he’s expected to assert his “American First” approach when he speaks to the UN General Assembly on Tuesday, UN Ambassador Nikki Haley said last week. “It is not saying multilateralism can’t work. But it’s saying sovereignty is a priority over all of that,” she said. “All of these things that we felt like were mandating things on the United States, those aren’t things we want to be involved in,” she added, pointing to the Paris Agreement on climate change and global talks on migration.
Dakwar said Bolton’s declaration on the ICC, however, raised questions on where the US stands on basic human rights issues. He noted that the administration also has withdrawn from the UN Human Rights Council and the Global Migration Compact, an international agreement intended to “cover all dimensions” of migration.
“What is it the United States is gaining from launching an attack against the ICC?” Dakwar asked.
Neither the State Department nor the Department of Justice responded to a request for comment.