Bolton outlined a series of steps that the U.S. intends to take in the event that the ICC “comes after us [the United States], Israel or other U.S. allies”. The steps include banning ICC and its personnel, such as its judges and prosecutors, and any company or state that assists an ICC investigation on Americans, from entering the U.S., freezing their funds in the country, and prosecuting them in the U.S. national system. Bolton also stated that the U.S. will use the UN Security Council to constrain the ICC and negotiate bilateral agreements with states to ensure that U.S. persons are not surrendered to the court. The proposed bilateral agreements are essentially a follow-on, from the dubious Article 98(2) agreements concluded during the Bush era, which have been widely criticised.[1]

Al-Haq is alarmed by the statement delivered by Bolton which reflects the current U.S. Administration’s intention to derail and delegitimise the ICC and constitutes a direct attack on the independence of the Prosecutor and the judiciary. The ICC currently enjoys the support of 123 States Parties that have willingly submitted themselves to it with the aim to end impunity. The ICC Prosecutor’s examinations into the situations in Afghanistan and Palestine are carried out within the remit of the powers granted to the Prosecutor.

According to customary international law, that is binding on all States including the United State and Israel, “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” The ICC, as a court of last resort, will therefore not step in and exercise jurisdiction in the event that a state fulfils its obligations. The object, as affirmed by the Rome Statute is therefore to ensure “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. In relation to the Situation in Palestine, Israel is unwilling and unable to investigate and prosecute, in particular high-level, Israeli military and civilian officials for the commission of war crimes and crimes against humanity.

Al-Haq would also like to draw attention to the impact of the Bolton statement on human rights defenders; the United Nations Secretary-General recently warned of the alarming scope and effect of reprisals against activists and human rights defenders.[2] U.S. threats to ban, prosecute, and freeze the funds of companies assisting the ICC in an investigation in relation to Americans could further stigmatise and inhibit much-needed critical human rights defenders from carrying out their important work and may infringe on their rights to freedom of association and expression.

Al-Haq reaffirms its support of the ICC, and urges the international community to defend the independence of the ICC, the work of individuals and organisations pursuing accountability, and the notions of equality before the law and accountability. Bolton’s statement is testimony to the success of the ICC to hold individuals to account for the commission of Rome Statute crimes – regardless of their nationality or status. 

[1] P.M. Wald, “Is the United States’ Opposition to the ICC Intractable?”, Journal of International Criminal Justice 2 (2004), 19 et seq; Amnesty International, “International Criminal Court: US efforts to obtain impunity for genocide, crimes against humanity and war crimes”, August 2002, available at <http://web.amnesty.org/aidoc/aidoc_pdf.nsf/ Index/IOR400252002ENGLISH/$File/IOR4002502.pdf> 

[2] United Nations Secretary-General, “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights”, 13 August 2018, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/247/10/PDF/G1824710.pdf?OpenElement