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U.S. threatens to arrest ICC judges who probe Americans for alleged war crimes in Afghanistan

AFP-JIJI, AP

The United States threatened Monday to arrest and sanction judges and other officials of the International Criminal Court if it moves to charge any American who served in Afghanistan with war crimes.

White House National Security Adviser John Bolton called the Hague-based rights body “unaccountable” and “outright dangerous” to the United States, Israel and other allies, and said any probe of U.S. service members would be “an utterly unfounded, unjustifiable investigation.”

“We will not cooperate with the ICC,” Bolton said, adding that “for all intents and purposes, the ICC is already dead to us.”

He said the U.S. was prepared to slap financial sanctions and criminal charges on officials of the court if they proceed against any Americans.

“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,” he said.

“We will do the same for any company or state that assists an ICC investigation of Americans,” he said.

Bolton made the comments in a speech in Washington to the Federalist Society, a powerful association of legal conservatives.

Bolton pointed to an ICC prosecutor’s request in November 2017 to open an investigation into alleged war crimes committed by the U.S. military and intelligence officials in Afghanistan, especially over the abuse of detainees.

Neither Afghanistan nor any other government party to the ICC’s Rome Statute has requested an investigation, Bolton said.

He said the ICC could formally open the investigation “any day now.”

He also cited a recent move by Palestinian leaders to have Israeli officials prosecuted at the ICC for human rights violations.

“The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court,” Bolton said.

“We will not cooperate with the ICC. We will provide no assistance to the ICC. We certainly will not join the ICC. We will let the ICC die on its own.”

The condemnation of the ICC added to the White House’s rejection of many supranational institutions and treaties the president does not believe benefit the United States.

Bolton also condemned the record of the court since it formally started up in 2002, and argued that most major nations had not joined.

He said it had attained just eight convictions despite spending more than $1.5 billion, and said that had not stemmed atrocities around the world.

“In fact, despite ongoing ICC investigations, atrocities continue to occur in the Democratic Republic of the Congo, Sudan, Libya, Syria and many other nations,” he added.

But Bolton said the main objection of the administration of President Donald Trump is to the idea that the ICC could have higher authority than the U.S. Constitution and U.S. sovereignty.

“In secular terms we don’t recognize any higher authority than the U.S. Constitution,” he said.

“This president will not allow American citizens to be prosecuted by foreign bureaucrats, and he will not allow other nations to dictate our means of self-defense.”

It was an extraordinary rebuke decried by human rights groups who complained it was another Trump administration rollback of U.S. leadership in demanding accountability for gross abuses.

“Any U.S. action to scuttle ICC inquiries on Afghanistan and Palestine would demonstrate that the administration was more concerned with coddling serial rights abusers — and deflecting scrutiny of U.S. conduct in Afghanistan — than supporting impartial justice,” said Human Rights Watch.

The American Civil Liberties Union, which represents several people who claim they were detained and tortured in Afghanistan from 2003 to 2008 and could be victims or witnesses in any ICC prosecution, said Bolton’s threats were “straight out of an authoritarian playbook.”

“This misguided and harmful policy will only further isolate the United States from its closest allies and give solace to war criminals and authoritarian regimes seeking to evade international accountability,” the ACLU said.

The ICC did not immediately respond to a request for comment.

Since its creation, the court has filed charges against dozens of suspects including former Libyan dictator Moammar Gadhafi, who was killed by rebels before he could be arrested, and Sudanese President Omar al-Bashir, who is accused of charges including genocide in Darfur. Al-Bashir remains at large, as does Ugandan warlord Joseph Kony, who was among the first rebels charged by the court in 2005. The court has convicted just eight defendants.

The court has been hobbled by the refusal of the U.S., Russia, China and other major nations to join. Others have quit: Burundi and the Philippines, whose departure, announced earlier this year, takes effect next March.

The Clinton administration in 2000 signed the Rome Statute that created the ICC but had serious reservations about the scope of the court’s jurisdiction and never submitted it for ratification to the Senate, where there was broad bipartisan opposition to what lawmakers saw as a threat to U.S. sovereignty.

When George W. Bush took office in 2001, his administration promoted and passed the American Service Members Protection Act, which sought to immunize U.S. troops from potential prosecution by the ICC. In 2002, Bolton, then a State Department official, traveled to New York to ceremonially “unsign” the Rome Statute at the United Nations.

Bush’s first administration then embarked on a diplomatic drive to get countries who were members of the ICC to sign so-called Article 98 agreements that would bar those nations from prosecuting Americans before the court under penalty of sanctions. The administration was largely successful in its effort, getting more than 100 countries to sign the agreements. Some of those, however, have not been formally ratified.

In Bush’s second term, the U.S. attitude toward the ICC shifted slightly as the world looked on in horror at genocide being committed in Sudan’s western Darfur region. The administration did not oppose and offered limited assistance to an ICC investigation in Darfur.

The Obama administration expanded that cooperation, offering additional support to the ICC as it investigated the then-Uganda-based Lord’s Resistance Army and its top leadership, including Kony.