On borrowed time: Five years after the Rana Plaza disaster, the Bangladesh Accord faces court-ordered closure

 

Five years ago, sometime before 9am on 24 April 2013, cracks started to appear in the Rana Plaza building in the Dhaka District of Bangladesh, revealing a structural failure that caused the eight-story commercial building to collapse. The building contained five garment factories supplying major global brands and retailers.

It only took 90 seconds for Rana Plaza to collapse, but it took two weeks to search for the dead. When the search ended on 13 May 2013, the total of lives lost was over 1,100.

The tragedy spurred textile and clothing companies into action. In May 2013, global fashion brands and retailers and trade unions signed the Accord on Fire and Building Safety in Bangladesh (the “Bangladesh Accord“), a ground-breaking worker safety agreement. Adidas, H&M and Esprit are amongst the signatories.

The most famous pillar of the Bangladesh Accord is its five-year legally binding agreement between brands and trade unions to ensure a safe working environment in the Bangladeshi ready-made garment industry. This feature gained notoriety when a case was filed at the Permanent Court of Arbitration in The Hague in October 2016 by two global unions, IndustriALL Global Union and UNI Global Union, to hold two unnamed multinational companies to account. The case eventually settled for $2.3 million in January 2018.

There are, however, additional components to the Accord, including, importantly, the creation of an independent inspection programme.

The Accord, which gathered the support of more than 250 brands and retailers from over 20 countries, was originally established for a limited time of five years – until May 2018.

In May 2017, the Remediation Coordination Cell (“RCC“) was established under the government of Bangladesh’s National Initiative, with a view to take over from the Accord to implement the remediation process for garment factories.

In June 2017, leading fashion brands and global trade unions announced at the OECD Global Forum on Responsible Business Conduct that they would enter into a new agreement, which would come into effect in 2018. Later that year, a transition agreement (the “2018 Transition Accord“) was signed, extending the Accord’s mandate for another three years, and allowing it to continue its operations until the RCC was ready to take over the platform’s responsibilities.

Everything seemed on track to guarantee a smooth continuation of the Accord’s activities… until judicial proceedings were started by a Bangladeshi factory owner who had failed to remedy safety breaches, and was therefore removed from the list of factories that Accord signatories are allowed to source from.

The factory owner sued the Accord. In April 2018, in an extraordinary unilateral action, the Bangladesh High Court issued a “suo moto” restraining order against Accord office operations. The restraining order is due to come into force on 30 November. This means that, in two days, the Bangladesh Accord will have to close its Dhaka office, severely limiting its scope of work and its ability to inspect thousands of factories supplying clothes for brands such as H&M, Esprit and Primark.

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Brazilian NGO addressing environment and human rights receives inaugural Human Rights & Business Award

Justica nos Trilhos - logo

The Brazilian NGO Justiça nos Trilhos will receive the inaugural award from the Human Rights and Business Award Foundation, the recently-formed foundation announced today.  The award, which is accompanied by a $50,000 grant, is made in recognition of “outstanding work by human rights defenders in the Global South or former Soviet Union addressing the human rights impacts of business in those regions”.

As the foundation states in its press release:

Justiça nos Trilhos is an organization working closely with local communities in remote parts of Brazil – including indigenous peoples, peasants, and Afro-descendants – to address human rights and environmental abuses by mining and steel companies, in particular the multinational Vale.

Mining and steel companies have polluted the rivers on which these people depend for drinking water and their livelihoods, polluted the air causing respiratory and eyesight problems, contaminated the soil with industrial waste, displaced communities, and decimated the cultures and lives of indigenous peoples.

The foundation notes:

The human rights defenders of Justiça nos Trilhos, and the local communities they work with, have been subjected to surveillance and retaliatory lawsuits by Vale.

Information about the Vale mining company is available here.  Two stories about the work of Justiça nos Trilhos, the first of which includes Vale’s responses:

Session on Tuesday at UN Forum on Business and Human Rights

BHR ForumDanilo Chammas, a lawyer at Justiça nos Trilhos, will accept the award on behalf of the organization at a session being held at the United Nations Forum on Business and Human Rights in Geneva on Tuesday 27 November. The session “will be an interactive learning and discussion opportunity, linking the particular experiences of the award recipient and the lessons learned through those experiences to the Forum’s priority issues including human rights due diligence, sector-focused challenges, and the UN Guiding Principles [on Business and Human Rights]”.

Human Rights & Business Award – Human rights defenders in the Global South
– Tuesday 27 Nov, 18:15-19:45, Room XX, Palais des Nations, Geneva
– The session’s objectives, key discussion questions, and discussants:  here

The Business and Human Rights Award Foundation was established by the founder of the award-winning Business and Human Rights Resource Centre, Chris Avery.  The foundation website was launched today in eight languages.

Press release announcing the 2018 Business and Human Rights Award:

 

Human Rights and the U.S. Gun Violence Crisis: A New Approach

With the most recent mass shootings at Thousand Oaks Bar in California and the Tree of Life Synagogue in Pittsburgh, Americans are once more reeling from the shock and horror of seeing their compatriots mowed down while undertaking normal daily activities. Innocent men, women, and children have been killed or injured whilst worshiping; enjoying a concert; spending an evening out with friends; attending school; or simply being in the wrong place at the wrong time. Each time shots ring out, the media is full of conversations about “gun rights” and the Second Amendment. But what about human rights? What about the right to life; the right of association; the right to health; the right to safety and security; the right to attend school and receive an education?

11.02.2018- Gun Panel Photo by Mary ButkusOn November 2 and 3, more than 150 people attended a conference at the School of Law entitled, The U.S. Gun Violence Crisis: An Interdisciplinary and Human Rights Approach. Co-sponsored by the Whitney R. Harris World Law Institute at Washington University School of Law, the Washington University Institute of Public Health, The Public Interest Law & Policy Speakers Series, and the American Branch of the International Law Association (International Human Rights Committee), the event brought together leading scholars and experts in the fields of law, psychiatry, sociology, medicine, and public health policy to focus on new approaches to the U.S. gun violence epidemic.

11.02.2018- Gun Panel Photo by Mary ButkusMike McLively, director of the Urban Gun Violence Initiative at Giffords Law Center to Prevent Gun Violence, opened the conference by highlighting the scope and scale of the U.S. gun violence epidemic. He noted that more than 30,000 people die each from gun violence – violence that is, for the most part, easily prevented by simple and common sense regulation or even executive action. He noted that more than 60 percent of those killed by gun violence have committed suicide with a gun; deaths that were largely preventable through simple measures like waiting periods to purchase firearms. Others noted the disproportionate impact of gun violence on communities of color and young people, as well as the exportation of the U.S. gun violence crisis to third countries through the trafficking of weapons from the United States. The usefulness of international human rights regimes in reframing thinking about this issue, and the important work already being done on this issue by U.N. bodies was noted by several participants. Barbara Frey, in particular, has worked on this issue for many years at the U.N. in her capacity as the alternate U.S. member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights and as Special Rapporteur to the Sub-Commission on the issue of preventing human rights abuses committed with small arms and light weapons.

Epstien_WLM_0156Lee Epstein, Ethan A.H. Shepley Distinguished University Professor, spoke insightfully about the history of the relationship between the Second Amendment in the U.S. Supreme Court and the evolution of conversations around gun rights. Professor Epstein noted that the relatively recent emergence of an individual right to bear arms can be traced to a flurry of recent law review articles advocating for this position. She suggested that further social science research and legal research could therefore contribute to the solution of the current crisis.

alpers_wlm_0227.jpgFinally, Philip Alpers, founder of GunPolicy.org, concluded by offering a comparative analysis of the crisis and its resolution in Australia as a result of legislative action, gun buybacks, and a change in legal and popular culture with respect to guns and gun ownership.

During the second day of the conference, speakers met to discuss the conference, as well as a Report on the topic prepared by Harris Institute Fellow Madaline George and myself. The Harris Institute’s Report, which concludes that the U.S. government has failed in significant respects to adequately protect the human rights of individuals living in the United States from gun violence, will be published in the coming months. The papers from the conference will appear in a special symposium issue of the Washington University Journal of Law and Policy in 2019. The Institute has already presented testimony on the U.S. Gun Violence Crisis to the Inter-American Commission on Human Rights and is working on testimony before other human rights bodies as well.

To learn more about the Harris Institute’s Gun Violence Initiative, visit our website.

Experts' Meeting at Washington University School of Law

A Constitution for Mars: A Call For Founding Feminists

Constitutions. Hamilton. Founding Fathers. Fathers. Father. Patriarchy.

purple and brown colored planet

In July scientists found a lake in Mars, raising hope that life on Mars, or a ‘colony’ on Mars, may become possible. Elon Musk has been telling us it is possible. Blue Origin tells us that ‘our dramatic next step will take us closer to the potential space holds for us all’. Space exploration has become the sport and object of the super rich and of transhumanists who are convinced that the Event is coming upon us.  Beyond the bunkers in New Zealand built by the capitalist uber elite, space, planets, and terrain beyond ‘the Earth, our home’ is destined for exploration. And if they achieve their goals, then what?  When the first to arrive are the super elite and the wealthy will they do anything other than impose the capitalist extractivist patriarchy under which we live here and now?  What type of rules would these founding fathers desire to regulate their affairs in Mars? Who will the ‘founding fathers’ be?  Bezos, Musk, Zuckerberg, Trump?

It is time that international feminist lawyers start talking about founding space feminism (For an excellent doctrinal overview of the laws on outer space including environmental protection and appropriation see Gerardine Goh Escolar here).  If space exploration is to happen (and it is happening), we must ensure that life in other spaces and times are not subject to the oppression, poverty, racism, sexism, and inequality to which most people on this planet are subjected to. It is up to us to become what Giaconda Belli termed the portadores de sueños (in her poem) and to write the treaties, covenants, and other instruments that provide for an alternative and better future. We must ensure that our ‘space’ constitution is binding and that it binds those who wish us to be bound.

The idea of a Bill of Rights in Mars or a Constitution for Mars is not new. CS Cockell has argued in an Essay on Extraterrestrial Liberty that ‘the most profound irony of the settlement of space is that the endless and apparently free expanses of interplanetary and interstellar space will in fact allow for, and nurture, some of the most appalling tyrannies that human society can contrive  Thwarting this tyranny will be the greatest social challenge in the successful establishment of extraterrestrial settlements’. He and others have previously gathered to discuss what a bill of rights for Mars would look like.  Astrobiologists, it seems, may be ahead of us critically minded lawyers.

The race for space exploration is undoubtedly influenced by the destruction of the planet, and fears over climate security. The UN has recently held debates on water, peace and security. The Rio Declaration on Environment and Development, principle 25 make it clear that ‘Peace, development and environmental protection are interdependent and indivisible’. Environmental peacebuilding recognises that conflict can be caused by or exacerbated by resource scarcity or resource abundance (for example, the war in Sierra Leone and its links to ‘blood diamonds’). More recently, General Recommendation No 35 (updating General Recommendation No 19 on violence against women) of the CEDAW Committee specifically recognises that:

Gender based violence against women is affected and often exacerbated by cultural, economic, ideological, technological, political, religious, social and environmental factors, as evidenced, among others, in the contexts of displacement, migration, increased globalization of economic activities including global supply chains, extractive and offshoring industry, militarisation, foreign occupation, armed conflict, violent extremism and terrorism.

As GR35 recognises, extractive industries exacerbate violence against women and girls. It is deadly. GR35 also recognises the role that corporations play when they operate extraterritorially. And what about when they operate extra-terrestrially?

So what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution?  Around the world, the brave, the portadores de sueños work on the ground against systematic violence.  Activists and academics work together on feminismos territoriales, and the rights of  women, forests, trees, and rivers.  Who will protect their rights in Mars?

The feminists.

 

Keina Yoshida is a research fellow at the Centre for Women, Peace and Security.  She is currently working on the AHRC funded project a Feminist International Law of Peace and Security.

Will the new crimes against humanity treaty protect women and LGBTI persons?

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               Photo courtesy of Groundswell.

If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.

What you should know is if this treaty goes forward for adoption in its current draft form, only some—not all—people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.

We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.

The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, since the Rome Statute’s codification, such a definition has never been used again.

To understand how this definition of gender came about we have to go back about twenty years. During the 1990s in Rome, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and the other the protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.

Since Rome, two decades of international human rights law has solidified the definition of gender as a social construct across UN Agencies and human rights mechanisms. The term sex is left for biologists. However, while this “footnote” to the term gender is understood to be inclusive, there are states that would gladly use this opaque definition as an excuse to ignore conflict-related gender-based crimes.

So how does an outdated definition to a protected group get adopted into a new crimes against humanity draft treaty?

Bensouda Photo

             Photo courtesy of CUNY Law School

While oodles of rights and protections were taken into consideration during the dialogues on the draft treaty, no one thought to discuss gender. Perusing through the comments over the last four years of discussions and debates by states and experts partied to the drafting process, not one mentions the outdated definition that was cut and pasted into the draft. While issues concerning everything from the rights of witnesses and victims to the cooperation between states have been discussed in great detail, there’s no mention of women, gender, LGBTI people, or even sexual violence. 

At the beginning of the drafting process, a small handful of legal advocates pointed to the definition and called for the drafters to either not include it¾since no other ground of persecution required one¾or adopt a clearer definition as used by the UN. Valerie Oosterveld, an international criminal law professor who was a pivotal delegate at Rome, raised concerns about the problematic nature of adopting a definition into the CAH treaty that was drafted to be deliberately ambiguous (“constructive ambiguity” in diplomatic parlance) in order to resolve polarized positions during the Rome Statute negotiations. Considering she’s one of the foremost experts on the issue of gender under international criminal law, it’s astonishing her ideas were dismissed.

Part of the problem stemmed from the fear that the controversy surrounding the definition twenty years ago would resurface and tank the treaty if the debate on gender were reopened. Some states and drafters have expressed the need to get the treaty passed expeditiously and to keep the original language from Rome intact.

But does a new treaty that codifies an outdated definition of gender serve the interests of justice?

Fighting for recognition of gender-based violence is not new. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. Feminists had to struggle tirelessly to secure the recognition of rape as a form of torture in certain contexts.

In the 1990’s the Human Rights and Gender Justice Clinic of CUNY Law School, (known then as the International Women’s Human Rights Initiative Clinic) served as the secretariat for the Women’s Caucus for Gender Justice, a global coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. Just as there was push-back against the term “gender”, there was also great opposition to recognizing sexual violence as a serious international crime.

A key component to their success was combining advocacy with legal strategy. Gender strategies in the tribunals grew from the notion that “women’s rights are human rights.” Today, advocates are calling for a “gender equal world.”

This is a pivotal moment in history to affirm our understanding of discrimination, including where gender-based oppression dictates narratives for sexual orientation, gender identity and sex characteristics. What we do now will affect people’s rights for generations to come.

It’s time for the international community to take a stand. A treaty meant to protect people against the worst atrocities imaginable by its nature should protect all of us.

 

African Court issues its first judgment on women’s rights

On 11 May 2018, the African Court on Human and Peoples’ Rights issued a landmark judgment in the case APDF and IHRDA versus the Republic of Mali. For the first time in its history, the Court found a violation of the Protocol on the Rights of Women in Africa. The Court held that Malian Family Code violates women’s rights as recognized under international law, and condemned the State of Mali to modify its legislation.

Two civil society organisations had lodged a complaint before the African Court in September 2016 alleging that the Malian Family code adopted in 2011 is not compatible with the State’s obligations under international law. The Court therefore proceeded to examine if the code was in conformity with human rights instruments Mali had ratified, and found that several provisions of this code are not.

The Malian Family Code permits marriage for girls from the age of 16-years. In specific circumstances, the minimum age for marriage for girls may be lowered to 15-years. Consent is not always a requirement for a marriage to be valid. The African Court found that the relevant provisions of the Family Code are blatant violations of the Protocol on the Rights of Women in Africa (Maputo Protocol) under which the minimum age for marriage is 18 years for both women and men. The Maputo Protocol also provides that free and full consent in marriage must be protected by law. In matters of inheritance, Islamic law and customary practice is the applicable regime by default in Mali. This means that women only receive half of what men receive and children born out of wedlock receive inheritance only when their parents so decide. In relation to this issue, the African Court emphasized that women and natural children should be entitled to inheritance by law, and as such, the Family Code should not allow the application of rules contrary to this principle. The Court held that the relevant provisions of the Malian Family Code are discriminatory and perpetuate practices or traditions harmful towards women and children, in violation of the Maputo Protocol, the African Charter on the Rights and Welfare of the Child and the UN Convention on the Elimination of All Forms of Discrimination against Women.

The political context in which the Malian Family Code was adopted, characterized by vigorous opposition by religious movements to a more progressive legislation, was at the heart of the arguments put forward by the State of Mali in its defence. But to the African Court, this was no good excuse for passing a law contradictory to its international obligations. It thus ordered Mali to modify its legislation as well as to take measures to inform, teach, educate and sensitize the population on the rights of women, and to report to the Court on the implementation of the judgement within a period of two years. Continue reading

Commentary on John Bolton’s Speech Regarding New American Policy on the International Criminal Court

National Security Advisor, John Bolton, delivered remarks today on “Protecting American Constitutionalism and Sovereignty from International Threats.”  In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court).  According to Bolton, the ICC “has been ineffective, unaccountable, and indeed, outright dangerous.”  While Bolton, and others in the Trump Administration, are certainly allowed to express their opinion and to craft new policies, it is important that such policies be based on accurate (and not alternative) facts.  The purpose of this post is to highlight some of the most egregious factual errors from Bolton’s remarks.  Any government policy based on inaccurate information and “advertised” through reliance on misleading and inaccurate claims is “ineffective, unaccountable… and outright dangerous.”  In addition, this post will criticize some of Bolton’s arguments as misguided and contrary to the United States’ interests.

Bolton argues in his speech that “[t]he ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States.”  It is incorrect that the ICC and its Prosecutor have “enormous” or “unaccountable powers.”  The ICC’s jurisdiction is limited temporally as well as rationae materiae (the court can only exercise jurisdiction over genocide, crimes against humanity and war crimes – and in very limited instances, aggression); the court is also constrained by the application of principles of gravity and complementarity.  Moreover, the Assembly of States Parties is an important accountability mechanism over the court – as many readers know, judges can be removed by a two-thirds vote of states parties to the Rome Statute, and a prosecutor can be removed by a majority vote of states parties. Thus, to claim that the ICC somehow wields Harry Potter-like powers which transcend any accountability is simply false.  And, it is unclear why the establishment of the ICC constitutes a constitutional and sovereignty assault against the United States.  The ICC is a treaty-based body; any state, including the United States,  is free to join or not to join this treaty.  If the United States chooses to join the ICC, or any other treaty, potential conflicts with the U.S. Constitution would be resolved through the Supremacy Clause, which establishes the primacy of the Constitution over any inconsistent treaty obligations.  Thus, it is surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.

In addition, Bolton argues that “the Court’s structure is contrary to fundamental American principles, including checks and balances on authority and the separation of powers…..The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch—the Office of the Prosecutor—is an organ of the Court. The Framers of our Constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. ”  This is a curious argument: while it may be true that the ICC does not espouse the same separation of powers structure that the United States government does, the United States cannot possibly expect that every treaty-based organization adopt American governance principles.  Multilateral treaties bind multiple nations together and often adopt compromise positions and the “lowest common denominator” of norms; it is not reasonable to expect that treaties would replicate Unites States’ constitutional structures.  And, such replication is not constitutionally mandated.  The United States can become a member of various treaty-based bodies, so long as its obligations under such treaty mechanisms do not directly conflict with the Constitution.  Nothing in the ICC Statute would create such a constitutional conflict.  Thus, Bolton’s argument here is both surprising and unsupported by the Constitution.

Bolton also argues that the ICC “claims ‘automatic jurisdiction,’ meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.”  This is not true either: the ICC does not have automatic jurisdiction, and Article 12 of its Rome Statute posits that a precondition to the court’s exercise of jurisdiction is that the alleged crimes be committed by a national of a state party, or on the territory of a state party (or if a state accepts the court’s jurisdiction).  Thus, while the ICC may be able to prosecute nationals of a non-party state, this situation is far from automatic, and may only occur if such nationals commit crimes on the territory of a state party.

Bolton claims that the ICC Prosecutor’s request  to investigate Americans for alleged detainee abuse in Afghanistan is “an utterly unfounded, unjustifiable investigation.”  This investigation is not unfounded in and of itself; the investigation will permit the Prosecutor to ascertain enough facts to decide whether to go forward with any possible prosecutions.  Moreover, the investigation is not unjustifiable, as it falls within the Court’s mandate, and as potential prosecutions would satisfy the Court’s temporal and subject-matter jurisdiction.

Bolton proceeds to criticize the ICC because it “claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the Court’s unfettered powers.  The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC.”  This claim is inaccurate: the ICC Statute specifically defines the crimes over which the Court has jurisdiction, and the interpretation and application of these definitions is appropriately left in the hands of the Court’s judiciary, in the same manner that the interpretation and application of domestic statutes is bestowed upon domestic judiciaries.  In addition, Bolton then argues that the ICC would somehow claim universal jurisdiction.  “The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats.”  There is nothing in the ICC’s Statute to support this conclusion, and while the Rome Statute negotiating record reveals that different states held different views regarding the Court’s reach and structure, it is false to claim that any serious intentions existed to provide the Court with universal jurisdiction over “anyone” or over “vague crimes.”

Finally, some of Bolton’s claims are, while not completely factually inaccurate, misguided and contrary to United States’ interests.  First, Bolton claims that the ICC is ineffective, as it has spent too much money, has prosecuted few individuals, and has not deterred the commission of atrocities in places such as the DRC, Sudan, Libya, or Syria.  This may be a fair criticism of the Court, but accepting such criticism could lead one to adopt a pro-ICC policy, to support the Court, and to ensure that the Court has better funding and better opportunities to truly deter the commission of atrocities, through its investigative and prosecutorial mechanisms.  This approach would benefit both the Court and all states which are committed to principles of accountability and individual criminal responsibility (United States should be positioned as a leader within this group of countries).  Second, Bolton believes that the ICC is superfluous, because of superior United States’ judicial and ethical standards.  According to Bolton, we do not need the ICC because the United States can handle its own investigations much better.  Bolton argues that the ICC’s application of the complementarity principle is “farcical” and  that the Prosecutor will decide which investigation to pursue based on political motives.  While the ICC has been criticized on complementarity grounds (in the Libya case in particular), there is nothing to suggest that the Prosecutor does not consider complementarity issues seriously, in each case that has been initiated with the Court.  And, even accepting that the United States’ judicial system is superior to the ICC, one could imagine a situation where the United States is unwilling to investigate its own wrongdoing; the ICC’s role is to act in such situations and to provide justice and accountability against perpetrators whose home countries choose to shield them.

Last but not least, most troubling is Bolton’s threat against those who cooperate with the ICC.  “We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We 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.”  It is absolutely within the United States’ sovereignty to refuse to issue visas/entry to ICC officials who may be foreign nationals (although this would be terrible policy).  However, it is simply unbelievable to announce that the United States would prosecute ICC officials, and other companies or states who assist the ICC, in the U.S. domestic system.  ICC officials are highly respected experts in international criminal law; judges, prosecutors, investigators, and other individuals who have committed their careers to the pursuit of international justice.  Those who assist or have assisted the ICC include our colleagues – the most prominent experts in international criminal law, who have provided advice and expertise to the Court.  What crimes have such individuals committed under United States law? And, how would such prosecutions (even if grounded in U.S. law) affect the United States’ role in international relations and in the world community? John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-a-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.

For other commentary regarding Bolton’s speech, see here and here.