On September 10, 2018, U.S. National Security Advisor John Bolton delivered an address fiercely criticizing the International Criminal Court (ICC).Footnote ¹ Bolton challenged the legitimacy of the ICC and expressed particular concern over its inquiry into potential war crimes committed by members of the U.S. military and intelligence agencies in Afghanistan. He identified retaliatory measures the United States would undertake if the ICC “comes after us, Israel or other U.S. allies.”Footnote ²

In his address, Bolton harkened back to certain actions taken by the United States during the George W. Bush administration in opposition to the ICC, including actions in which Bolton himself was involved as a member of that administration. He mentioned President Bush's decision to “‘unsign’” the Rome Statute; Congress's passage of “The American Servicemembers’ Protection Act, or ASPA, which some have branded ‘The Hague Invasion Act’”; and the Bush administration's negotiation of “about 100 binding, bilateral agreements to prevent other countries from delivering U.S. personnel to the ICC.”Footnote ³ Bolton made no mention of the approach taken by the Obama administration to the ICC, which had been to “‘end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.’”Footnote ⁴

Bolton stated that the “worst predictions” from the George W. Bush era “were confirmed” by the ICC prosecutor's request in November 2017 to initiate an investigation into war crimes and crimes against humanity committed in Afghanistan and neighboring countries.Footnote ⁵ For more than a decade before this request, the prosecutor had conducted a preliminary examination into the situation of Afghanistan.Footnote ⁶ In seeking permission from the ICC bench to move forward and open an investigation, the prosecutor specifically identified war crimes committed by U.S. military and intelligence personnel as one set of crimes that she “has determined that there is a reasonable basis to believe … have occurred.”Footnote ⁷

Bolton expressed outrage at what he termed “an utterly unfounded, unjustifiable investigation.”Footnote ⁸ He stated:

At the close of his remarks, Bolton identified potential responses by the United States to the ICC:

• - We will negotiate even more binding, bilateral agreements to prohibit nations from surrendering U.S. persons to the ICC. And we will ensure that those we have already entered are honored by our counterpart governments.

• - 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.

• - We will take note if any countries cooperate with ICC investigations of the United States and its allies, and we will remember that cooperation when setting U.S. foreign assistance, military assistance, and intelligence sharing levels.

• - We will consider taking steps in the UN Security Council to constrain the Court's sweeping powers, including ensuring that the ICC does not exercise jurisdiction over Americans and the nationals of our allies that have not ratified the Rome Statute.Footnote ¹⁰

In response to Bolton's statements, the ICC issued a brief press release:

In the aftermath of Bolton's speech, the ICC received statements of support from leaders in the European Union and some states, while Bolton's remarks drew the approval of officials in a few countries, such as Sudan.Footnote ¹² Bolton's speech also drew a flurry of critical responses from legal scholars and practitioners within the United States. David Scheffer, the U.S. ambassador for war crimes issues during the second term of President Bill Clinton, described the speech as “isolat[ing] the United States from international criminal justice and severely undermin[ing] our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world.”Footnote ¹³ John Bellinger, who was legal adviser to the State Department during the second term of George W. Bush, deemed it “unfortunate … that the Trump administration did not engage in quiet diplomacy with the Court to try to work out a resolution [with respect to Afghanistan] instead of throwing down the gauntlet in public.”Footnote ¹⁴

Commentators also indicated considerable skepticism about whether the Trump administration had the legal authority or political capital to undertake some of the retaliatory measures suggested by Bolton. Bellinger observed that he “is not aware of any federal criminal statute that could be used to charge ICC judges or prosecutors, much less companies or foreign governments that cooperate with the court” and also expressed doubts about the Trump administration's ability to impose sanctions on ICC judges and prosecutors.Footnote ¹⁵ As to Bolton's call for more bilateral agreements prohibiting countries from sending Americans to the ICC and potentially for a Security Council resolution limiting the reach of the ICC, it is far from clear that these measures would receive the needed support from other countries.Footnote ¹⁶

Several weeks after Bolton's speech, President Trump briefly reiterated U.S. concerns about the ICC in his address to the UN General Assembly. Trump declared that “[a]s far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority. … We will never surrender America's sovereignty to an unelected, unaccountable, global bureaucracy.”Footnote ¹⁷