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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Reflecting on the Australian Feminist Law Journal special issue, ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’

The nexus between war and technology has developed alongside the rapid expansion of military might and spending, evident in recent decades. Militaries have advanced their weapon systems and in theory saved civilian and military lives in the process. Weapons are now more accurate, theoretically cause less destruction to surrounding infrastructure, and require less time to deploy. Drones, for instance, can target ‘hostiles’ from miles away allowing the operator to never physically come in contact with the violence of war. Specialty ‘armour’ can better protect soldiers and make their job more efficient, by providing weight distribution. Therefore, soldiers (both men and women) will likely become less exhausted from carrying out common tasks and would therefore be allegedly clearer of mind when making key decisions on the battlefield. But, are these all welcome achievements? And, are individuals to accept these achievements at face value?

Alongside the development of these military technologies there has been a push from scholars to recognise that technology, war, and law are not the only sites of intersection. Gender, as a starting point for scholarship on war and technology, and as a tool to investigate the ways in which technology is used, understood, and imagined within military and legal structures and in war, offers an analysis that questions the pre-existing biases in international law and in feminist spaces. Using gender as a method for examination as well as feminist legal scholarship, expands the way military technologies are understood as influencing human lives both on and off the battlefield. This type of analysis disrupts the use of gender to justify and make palatable new military technologies. The Australian Feminist Law Journal’s special issue entitled ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’ (Volume 44, Issue 1, 2018) has tacked key issues and questions that emanate precisely from the link between the concepts of ‘gender, war, and technology’ which editors Jones, Kendall, and Otomo draw out through their own writing and various contributing author’s perspectives.

The following thoughts/questions, which developed while reading this issue, speak to the critiques waged within these articles, and from the developments this issue’s engagement with these topics have generated. As this contribution suggests, intersectional issues remain ever present within new technological advances, which begs the question who are the programmers? If the desire and use of technology to gain military advantage is coming from a place of primarily white, Western, heteronormative, masculine, and secure socio-economic status, then does the method of technological advancement and deployment become defined along similar identities? Does the use of such technology change command structures whereby the weapon becomes ‘in charge’? Continue reading

Heartfelt kudos to Margaret Stock, IntLawGrrl & MacArthur genius

Stock_clip_image002_1Delighted to read that Margaret Stock has been named a 2013 MacArthur Fellow. I first met Margaret when she was on the law faculty at the U.S. Military Academy at West Point. After a decade there, she retired from the Army, withthe rank of Lieutenant Colonel, and took up the practice of law in Alaska. For the last several years she’s been an outspoken advocate for the rights of immigrants in the U.S. military, writing a book on the subject and contributing commentaries to IntLawGrrls blog and other media. Her recognition for this important work, in the form of a $625,000 grant, is well deserved.

¡Brava!

(cross-posted from Diane Marie Amann)