- United States National Security Advisor John Bolton has wanted to see the ICC die on its own for years.
- Now, Bolton can ensure that happens – even if it means an armed invasion of the Netherlands.
- Under the US’ ‘Hague Invasion Act’ the government can “take all means necessary” to release US personnel being held by the ICC.
United States National Security Advisor John Bolton’s disdain for the International Criminal Court predates his statement last Monday that the court is, “ineffective, unaccountable, and indeed outright dangerous.”
In his speech, Bolton claimed that the court was “already dead to us,” and said that the US will use “any means necessary” to protect Americans in response to the court’s first-ever public investigation into alleged US war crimes. Last November, the Court’s requested to launch an investigation into war crimes and crimes against humanity allegedly committed by US service members and CIA operatives in Afghanistan and the war on terror, especially in secret prisons.
While Bolton has wanted to see the “illegitimate” ICC die on its own for years, he is now uniquely situated to ensure that happens – even if it means an armed invasion of the Hague.
In response to the formal establishment of the ICC in 2002, the Bush administration passed into law the American Servicemembers Protection Act of 2002, commonly referred to as the ‘Hague Invasion Act‘ by its opposition. Its eerie nickname stems from its vague wording, which allows the US to “take all means necessary and appropriate” to release US personnel being held by the International Criminal Court.
Bolton’s exact use of the law’s ambiguous wording implies he is willing to operate under the wide freedom the law provides. In other words, the US will shield its service members from imprisonment even if it means dropping in a Navy SEAL team to jailbreak them.
The International Criminal Court was established to prosecute crimes like genocide and crimes against humanity in countries and conflicts where the rule of law had broken down.
The US’ relationship with the Court has been strained at best. In 2000, then President Bill Clinton signed the Rome Statute, the Court’s founding document, but did not send it to the US Senate for approval. In accordance with a bipartisan opposition to joining the ICC, President George W. Bush passed the ‘Hague Invasion Act.’
Bush then sent John Bolton, who was a State Department official at the time, around the world to in a multi-pronged attack on the Court. Bolton began by ‘unsigning’ the Rome Statute.
Bolton then embarked on a trip around the world to every government that had signed the Rome Statute and convinced a majority of them to sign Bilateral Immunity Agreements. These agreements shield US service members from prosecution by the ICC in the signatory country. For example, if Ecuador signed a BIA with the US, and a US service member committed a crime against humanity in Ecuador, the ICC could not prosecute that member.
Only in reality, Ecuador did not sign a BIA. Ecuador, like many other countries in Latin America and Africa, refused to sign. In retaliation, the US cut millions of dollars in military aid to countries that refused to offer the US protection from the Court.
Many of the countries who lost funding were actually US allies in the War on Terror, causing then Secretary of State Condoleezza Rice to say the policy was “sort of the same as shooting ourselves in the foot.”
The reality of an invasion remains improbable with many officials in the Netherlands regarding the thought of an invasion by the US as only a joke. One Dutch Ministry of Justice official viewed the ‘Hague Invasion Act’ as a “bizarre symbol.”
The ‘Hague Invasion Act’ as a symbolic gesture of American exceptionalism is further supported by the ICC’s complementarity principle. Under this legal principle, any ICC investigation of US service members would be nullified if the US launched its own investigation of the same alleged crimes. This is because the ICC was designed to go after crimes that a state is unable or unwilling to prosecute.
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