John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban 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.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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Cautionary tales for the Mueller Probe from the International Criminal Tribunal for the former Yugoslavia

 

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Photo by the National Archives and Records Administration

“I just can’t wait to hear the final report of the Mueller probe!”

Even those not normally interested in the intricate details of complex legal investigations have found themselves obsessed with the criminal investigation at the center of our nation’s political drama—the Special Counsel Investigation into Russian interference in the 2016 election, or the Mueller probe.

Both sides of the political aisle are awash with speculation about what the final report might reveal (and it’s probably as damning as whatever is in Donald Trump’s tax returns). Whatever you think it might disclose, we all seem convinced that the investigation will prove to the American public once and for all just what was going on during the 2016 election.

But international justice offers a cautionary tale about the ability of criminal justice mechanisms to draw a line in the sand about political events.

Very popular criminals 

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The International Criminal Tribunal for the Former Yugoslavia

 

 

In 1993, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to try those most responsible for the crimes committed during the Balkans wars of the 1990s. In December 2017, it sentenced former Bosnian Serb general Ratko Mladić, also known as “the Butcher of Bosnia,” to life imprisonment for genocide, war crimes and crimes against humanity. Justice, one might infer, had been served. Who could deny the atrocities now?

After the Mladić verdict, in Srebrenica—a town whose name became synonymous with the 1995 genocide—mayor : “Mladić will be remembered in history and this sentence only strengthens his myth among the Serb nation, which is grateful to him for saving it from persecution and extermination.” For a little less than half of the Bosnian population, Mladić is not a war criminal: he is a hero.

Denials about atrocities of the war are typical and commonplace in the Balkans, even of infamous events like Srebrenica. Despite 2.5 million pages of court transcripts, the ICTY’s findings are not always accepted as true among the people for whom it was established.

There are many theories about why Bosnians have not internalized the ICTY rulings. Some argue that the trials and the judgments were too lengthy, complicated and legalistic for people to understand—the court is located far away in The Hague and the proceedings are conducted in English and French. People in the former Yugoslav simply didn’t watch the trials or read the verdicts. Some point the finger at nationalist elites, politicians and journalists, who used confusion about the ICTY rulings for their own benefit. Still others point out that the defendants were allowed to hijack the trials and use them as political platforms, undermining the ICTY’s ability to communicate with the public.

But the truth was that being subjects of international indictments for war crimes did not really lessen the popularity of any of the Balkans leaders among their constituencies. Continue reading