In a stern and defiant speech earlier this month, National Security Adviser John Bolton made clear that the United States will not join the International Criminal Court, will not cooperate with it, nor provide it assistance.
What will the United States do instead? “We will let the ICC die on its own,” Mr. Bolton said. “After all, the ICC is already dead to us.”
Denunciations were soon flying from academics, “human rights” groups and the major media.
On the front page of The New York Times, a “news” story pronounced: “On War Crimes Court, U.S. Sides with Despots, Not Allies.” In an editorial, The Washington Post charged that Mr. Bolton was harping on a “pet peeve” and “personal bugaboo,” raising issues that are “essentially irrelevant.”
These elite opinions could not be more wrong-headed.
The Trump administration has had one consistent and overriding foreign policy theme: Defending American sovereignty. In his address to the U.N. General Assembly a year ago this month, President Trump used that word — as well as “sovereign” — more than two dozen times.
Sovereignty was succinctly defined by President Lincoln in 1861. He said it implies “a political community, without a political superior.” In other words, it’s central to the question that is — and always has been — at the heart of politics everywhere: Who rules?
There are those who consider it imperative that the United States remain a political community without a political superior, that Americans rule themselves, that no institutions wield power over them without their consent, and that the U.S. Constitution be regarded as the supreme law of the land.
There also are those who believe such ideas are outmoded. They hope for change, and they’re working hard to achieve it. A fancy term for them is “transnational progressives.” A less fancy term: Globalists — proponents of global governance.
In his speech to the Federalist Society, Mr. Bolton identified the ICC as the most proximate threat to American sovereignty. It was established in The Hague in 2002 under the Rome Statute, a treaty President Clinton had signed two years earlier but refrained from submitting to the Senate for ratification.
Congress weighed in nonetheless. A bipartisan majority passed the American Service-Members’ Protection Act which, as Mr. Bolton noted, “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.”
On what charges? War crimes, crimes against humanity — pretty much whatever ICC prosecutors and judges decide, based on whatever they think international law demands. Their reasoning may be sound or it may be politically motivated. Who’s to say?
They’re accountable to neither a court of appeals nor a supreme court. They’re subject to no check and balances. Accused Americans would not be tried by a jury of their peers. What do you imagine the Framers of the U.S. Constitution would think about all this? Or, as globalists contend, should that no longer matter?
At the direction of President George W. Bush, the United States “un-signed” the Rome Statute in 2002, and Mr. Bolton, then an under-secretary of State, led efforts to negotiate “100 binding, bilateral agreements to prevent other countries from delivering U.S. personnel to the ICC.”
As he acknowledged, however, the United States was unable to reach agreement with some nations, “particularly those in the European Union, where the global governance dogma is strong.”
Last year, to what should have been no one’s surprise, ICC chief prosecutor Fatou Bensouda, a Gambian lawyer, “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.”
Mr. Bolton added: “Any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily went into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks.”
President Trump, however, “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.”
He will prevent that by banning “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. We will do the same for any company or state that assists an ICC investigation of Americans.”
Sovereignty is a choice. Some nations fight for their sovereignty. Others surrender it. The latter is what members of the European Union have done. A majority of Britons, dissatisfied with the results, have voted to withdraw from that transnational organization. Elites in both America and Europe deride them as ignorant “populists.”
I’d wager that most Americans have no wish to empower unaccountable foreign judges, many from unfree nations, to investigate, prosecute, issue arrest warrants and even imprison Americans based on powers granted by a treaty un-signed by an American president and not ratified by the representatives of the American people. Others believe that “global problems require global solutions,” and that the ICC is such a solution.
In the end, American voters will decide whether or not Mr. Bolton and the administration he serves are siding with despots, whether or not opposition to the ICC is a “pet peeve,” and a “personal bugaboo,” whether or not sovereignty is “essentially irrelevant.”
• Clifford D. May is president of the Foundation for Defense of Democracies and a columnist for The Washington Times.