Thread by @S_R_Anders

Thanks to @AJEnglish for having me on earlier today to talk about the implications of National Security Advisor John Bolton's remarks regarding the ICC and closure of the PLO office here in Washington, D.C.

Here are some expanded thoughts that I wasn't able to get into on-air...

https://twitter.com/lawfareblog/status/1039222747128385537

As a preliminary matter, there is no doubt that this policy is a Bolton original.

He has targeted the ICC for years, and his remarks closely crib a @WSJ op-ed he wrote before entering government—right down to the weird "dead to us" rhetoric.

wsj.com/articles/the-h…

Bolton's speech also echoes countless comments he's made that frame the ICC (and many other international institutions) as primarily designed to constrain the United States as a super power, thereby threatening its autonomy and sovereignty.

chicagounbound.uchicago.edu/cgi/viewconten…

Today's remarks are framed as responses to possible investigations the ICC is weighing in Afghanistan and the Palestinian territories.

But neither investigation is clearly at the sort of inflection point that one would normally expect to motivate such a response...

A 2017 request by the ICC prosecutor to initiate an investigation in Afghanistan (who joined the ICC in 2003) is still awaiting judicial authorization.

icc-cpi.int/afghanistan

And a 2015 acceptance of jurisdiction and referral by Palestinian officials is still in preliminary examination, meaning prosecutors have not even decided to request whether to open an investigation.

icc-cpi.int/palestine

Maybe Bolton knows something we don't that explains his timing...

But, more likely, it's simply a the confluence of the opportunity provided by @FedSoc, Bolton's own policy agenda, the Trump administration's Israel/Palestine policies, and play-to-the-base politics.

Many of Bolton's claims about the ICC—on the unchecked scope of the crime of aggression, meaningless of complementarity, and unbound prosecutorial discretion—are misleading and reflect absolute worst-case scenarios that are unlikely if not impossible.

His comments on the ICC's effectiveness, disproportionate focus on Africa, internal structures, and personnel choices, meanwhile, are a bit more grounded, and reflect more widespread criticisms of the ICC that have genuinely hurt its global legitimacy in recent years.

This narrative often contradicts itself: How can the ICC both threaten U.S. hegemony and be woefully ineffective even in the face of opposition by weaker states?

It can't. The former only exists at the end of Bolton's parade of horribles. The latter is closer to the truth.

Moreover, many of Bolton's specific concerns could be addressed by institutional changes to the ICC.

This would be hard now, but was a genuine possibility when Bolton first advanced such policies in the early 2000s.

Instead, Bolton has remained consistent in his adamant opposition, even after the worst outcomes he predicted failed to appear.

His opposition, in other words, is categorical and on principle, not based on any assessment of the ICC's actual characteristics or performance.

So what does ceasing cooperation with the ICC actually mean? That's not entirely clear.

Despite its opposition to joining the ICC, the GWB administration ended up engaging with it over Darfur and other issues. The Obama administration continued and increased these efforts.

The Trump administration had already indicated its intent to reduce such cooperation, though some aspects may have queitly continued. Now it seems likely these will be rooted out and stopped.

But it's not clear how much this will actually impact the ICC operationally.

Bolton's threat to impose sanctions and penalties on ICC judges and personnel would be a much bigger problem, particularly for staffers with substantial U.S. ties.

If pursued, they could lead the ICC to limit reliance on such staffers, or otherwise increase the U.S.-ICC gap.

But this will depend in part on how much the Trump administration will follow through on Bolton's threats.

And there are reasons to think the latter are more bark than bite, at least without substantial congressional support and diplomatic efforts that seem unlikely.

President Trump could likely limit the entry of foreign ICC personnel into the United States. He may also be able to sanction their U.S. property, though it would be a stretch.

But it's not clear how the Trump administration could possibly criminally prosecute anyone.

Moreover, many of the existing domestic legal authorities the president would need to use for this purpose are contingent upon a nexus with U.S. national security. This they may be harder to use to help "defend" foreign allies like Israel.

Of course, Congress could enact new laws that authorize such measures. But it could also adopt legislation prohibiting or limiting them.

Frankly, neither seems likely on its own. And the Trump administration seems too short on political capital to push hard for the former.

In either event, applying any of these measures (new or old) to U.S. citizen personnel at the ICC would make them subject to a far broader range of constitutional challenges. These could end badly for the administration.

Negotiating bilateral agreements, meanwhile, would require savvy and committed diplomacy by the Trump administration—not always its strong suit.

Plus, openly seeking impunity could well undermine support for U.S. military presences in certain areas (e.g., Afghanistan).

Even then, the extent to which these treaties would allow the other state to escape its ICC obligations is unclear, as underscored by the dispute around Jordan's refusal to detain Sudanese President Omar al-Bashir.

icc-cpi.int/Pages/item.asp…

To the extent he is hoping that these threats will deter the ICC from pursuing the Afghanistan or Palestinian investigations, Bolton's strategy is an odd one.

Quiet diplomacy has been effective at avoiding a major run in with the ICC so far. No reason to think it couldn't here.

By instead openly threatening the ICC, Bolton is playing into the power dynamics that he (and others) criticize. For many, backing down will only confirm that the ICC is beholden to powerful Western states, weakening it.

If anything, this makes it harder for the ICC to do.

If the ICC does proceed, however, Bolton has set out actions that could permanently damage its relationship with the United States.

From his perspective, this situation is likely win-win: either weaken the ICC as an institution or push it further away from the United States.

As for the PLO office, that appears to be a casualty of convenience.

The Trump administration considered the move last year, but walked it back amidst the post-Embassy Jerusalem fallout, which has perhaps permanently damaged U.S.-Palestinian relations.

washingtonpost.com/world/national…

Recently, the Trump administration has taken several measures to force the Palestinians back to the negotiating table. The @StateDept announcement all but makes clear that this is a continuation of that theme.

https://twitter.com/Joyce_Karam/status/1039171581614927872

There's lots to be said on the problems with that approach—but that's a topic for another thread.

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