For the first time since it began operating in 2002, the International Criminal Court has put the U.S. in its sights. On Nov. 3, ICC Prosecutor Fatou Bensouda initiated an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since mid-2003. This raises the alarming possibility that the court will seek to assert jurisdiction over American citizens.
Located in The Hague (alongside such dinosaurs as the International Court of Justice, which decides state-versus-state disputes), the ICC constitutes a direct assault on the concept of national sovereignty, especially that of constitutional, representative governments like the United States. The Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC's legitimacy. Even merely contesting its jurisdiction risks drawing the U.S. deeper into the quicksand.
The International Criminal Court in The Hague, Netherlands. (UN Photo/Rick Bajornas)
The left will try to intimidate the White House by insisting that any resistance to the ICC aligns the U.S. with human-rights violators. But the administration's real alignment should be with the U.S. Constitution, not the global elite. It would not be "pragmatic" to accept the ICC; it would be toxic to democratic sovereignty.
The U.S. is not party to the Rome Statute, the treaty establishing the ICC's authority. Bill Clinton signed it in 2000, when he was a lame duck. But fearing certain rejection, he did not submit it to the Senate. The Bush administration formally "unsigned" in 2002 before the Rome Statute entered into force. That same year, Congress passed supportive legislation protecting U.S. servicemembers from the ICC, a law that was decried by hysterical opponents as the "Hague Invasion Act." The U.S. then entered into more than 100 bilateral agreements committing other nations not to deliver Americans into the ICC's custody.
Secretary of State Condoleezza Rice later weakened America's opposition to the ICC. Barack Obama manifestly longed to join but nonetheless did not re-sign the Rome Statute. Thus the U.S. has never acknowledged the ICC's jurisdiction, and it should not start now. America's long-term security depends on refusing to recognize an iota of legitimacy in this brazen effort to subordinate democratic nations to the unaccountable melding of executive and judicial authority in the ICC.
Proponents of global governance have always wanted to turn the U.S. into just another pliant "member" of the United Nations General Assembly or the ICC. They know that America's exceptionalism and commitment to its Constitution were among their biggest obstacles, but they hoped to cajole Washington into joining one day. The new Afghanistan investigation demonstrates why that vision needs to be confronted now and conclusively defeated.
The U.S. has done more than any other nation to instill in its civilian-controlled military a respect for human rights and the laws of war. When American servicemembers violate their doctrine and training—which can happen in any human institution—the U.S. is perfectly capable of applying our own laws to their conduct. These laws and procedures do not need to be second-guessed by international courts, especially ones that violate basic rights guaranteed by the U.S. Constitution, like trial by jury.
Moreover, the Rome Statute's real targets always have been not merely individual soldiers accused of war crimes, but their commanders and political leaders—all the way to the commander in chief of the global hegemon (as they resentfully see it). The White House should not facilitate these efforts to constrain and inhibit its ability to defend Americans.
The ICC prosecutor is an internationalized version of America's "independent counsel," a role originally established in the wake of Watergate and later allowed to lapse (but now revived under Justice Department regulations in the form of a "special counsel"). Similarly, the ICC's prosecutors are dangerously free of accountability and effective supervision. They are not the superhero "Justice League International."
The ICC fits into no coherent representative government structure, which does not exist internationally. It also fails a critical constitutional test—the separation of powers—in that the executive not only prosecutes but determines guilt or innocence. Decoupling executive and judicial powers is no mere constitutional nicety; it is a critical mechanism for restraining excesses.
The ICC always had dramatically different possible paths. First, it could become yet another embarrassing irrelevancy like the International Court of Justice or the U.N. Human Rights Council. That has been its lot so far. To date, the ICC has been feckless and often in disarray, acquiring the justifiable reputation from its caseload that it was a project by Europeans to prosecute miscreants in their former African colonies. Burundi recently withdrew from the ICC, and others have come close.
Second, the ICC could go rogue—which is what the potential prosecution of Americans represents. Pursuing Washington, it seems, finally became too hard for the ICC to resist (having already investigated Israel, which is once again the canary in the mineshaft).
Under the idea of "complementarity," the ICC could defer to countries that possess responsible law-enforcement mechanisms, which the U.S. assuredly does. There are plenty of real criminal states in the world to keep the ICC busy, if it had the wit to focus on them. That it doesn't speaks volumes.
America should welcome the opportunity, as in Churchill's line about Bolshevism, to strangle the ICC in its cradle. At most, the White House should reply to Ms. Bensouda with a terse note: "Dear Madame Prosecutor: You are dead to us. Sincerely, the United States." Other countries wanted the ICC; let them live with it.
John R. Bolton, former U.S. Ambassador to the United Nations, is Chairman of Gatestone Institute, a senior fellow at the American Enterprise Institute, and author of "Surrender Is Not an Option: Defending America at the United Nations and Abroad".
This article first appeared in The Wall Street Journal and is reprinted here with the kind permission of the author.