Democracy Under Arrest

John R. Bolton |  Wall Street Journal

‘Universal jurisdiction” sounds like a term plucked from obscure international law journals, but it has pernicious and profoundly antidemocratic consequences in the real world. A British arrest warrant, issued over the weekend in London for former Israeli foreign minister Tzipi Livni, shows precisely why.

The warrant charged Ms. Livni—the current leader of the Knesset opposition—with war crimes allegedly committed by Israeli forces during Operation Cast Lead in the Gaza Strip last winter. Ms. Livni and other Israeli leaders have always staunchly defended their operation against Hamas, and the arrest warrant was withdrawn Monday when it became clear Ms. Livni would not be in Britain as previously scheduled. But the fallout from this misguided warrant will linger long after it fades from the headlines.

Universal jurisdiction originated centuries ago to deal with hostes humani generis (“the enemies of all mankind”) such as pirates or slavers, who were not under any state’s control but legitimately concerned them all. It has grown explosively in recent years, as self-styled human-rights advocates have pushed to criminalize national actions that they find offensive.

Today’s version of universal jurisdiction masquerades as a legal concept, but is in fact a form of political morality. It empowers prosecutions in states with little or even no connection to alleged offenses such as war crimes and gross abuses of human rights. And in many countries, as in Britain, the ability of private citizens to trigger the criminal process only adds to the danger of politicized prosecutions.

When leaders of constitutional, representative governments are targets, there is simply no argument for applying universal jurisdiction. Ms. Livni and her colleagues won free and fair Israeli elections, and were in fact defeated in subsequent free and fair elections. Israel’s laws have been adopted by democratically elected Knesset members and enforced by an independent judiciary. If crimes under Israeli law have been committed, they can be prosecuted by Israel’s courts. Same goes for the United States.

Augusto Pinochet’s 1999 arrest in Britain on a Spanish warrant for offenses committed while overthrowing Chile’s Salvadore Allende first brought universal jurisdiction global prominence. But Pinochet’s arrest was followed by Belgium’s toying with the idea of arresting Donald Rumsfeld for having the temerity to visit NATO headquarters in Brussels. Now Ms. Livni and other Israeli officials involved in recent regional conflicts are subject to potential arrest and trial if they travel beyond Israel’s borders.

It is no accident that arrest warrants never seem to be issued for the likes of Kim Jong Il or Mahmoud Ahmadinejad, since the real targets of universal jurisdiction these days are Western nations. Ultimately, what it targets is the very ideas of sovereign accountability and political independence. These goals largely motivated the 1998 Rome Statute that created the International Criminal Court, itself a step toward constraining states’ abilities to police their own affairs, and an institution that the Obama administration yearns to join.

Transferring accountability for decisions from democratic politics to the criminal justice system understandably intimidates policy makers from making perfectly justifiable choices, such as defending against terrorist threats. Moreover, “command responsibility” has been transmogrified from liability for failing to stop known criminal activity, to liability when officials “should have known” their subordinates were committing crimes. This further ups the ante and explains why former foreign ministers like Ms. Livni or Henry Kissinger are at risk.

This deterrent impact is exactly what universal jurisdiction advocates seek—both to affect decisions at the highest national levels, and to discourage mid- and low-level officials from implementing disfavored policies. Some foreign critics hope to prosecute former President George W. Bush for enhanced interrogation techniques and the Guantanamo Bay detention facility. While they likely won’t get to the former president, they’ll be at least somewhat content prosecuting the attorneys who wrote the underlying legal justifications. Incredibly, the Obama administration has yet to definitively reject the possibility of allowing such prosecutions overseas.

Universal jurisdiction against officials of authoritarian regimes sounds appealing. But in these cases, the real goal should be replacing such regimes with representative governments that undertake sovereign accountability for prior transgressions.

Nonetheless, human-rights activists who view their morality as higher than that of elected governments are satisfied by nothing less than prosecution. That is precisely why contemporary universal jurisdiction is so profoundly antidemocratic.

Undoubtedly, leaders of constitutional democracies make mistakes about whom they do and do not prosecute. But to substitute the judgments of self-designated international Platonic Guardians for representative governments and independent judiciaries is perilous at best, and authoritarian at worst. It’s the time to unambiguously reject universal jurisdiction before its infection spreads even further.

Goo-Goo Court Boosts Darfur Butchers

John R. Bolton |

Support for the International Criminal Court is an article of near-religious faith on the political left, a central component of its “global governance” vision. In actuality, however, the ICC has been marginally effective, poorly administered, and its priorities diffuse–much like its feckless, irrelevant sister, the International Court of Justice, and many other international bodies.

The ICC has avoided irrelevance in one key case–Sudan. But it has actually made that desperate humanitarian crisis harder to resolve.

Specifically, the ICC indictments in July 2008 for Sudanese President Omar al-Bashir and other regime figures accused of war crimes and crimes against humanity have clearly had the opposite of the intended effect: Rather than pressure Bashir to stop the killing, they’ve strengthened his domestic position and hardened his already intractable line on “concessions” to inhabitants of Darfur.

This sad turn of events has provided virtually clinical proof of warnings by ICC critics that the court’s “independence” was a defect, not a virtue–leaving it disconnected from the legitimacy of representative government, and also from the global reality of power and conflict.

Yet it is impossible to act responsibly in Sudan without an understanding of power and conflict. Although recent attention has focused on Darfur, in the country’s west, the ethnic and religious north-south conflict that preceded Darfur’s suffering is also a candidate for the “genocide” label and remains unresolved. A 2005 agreement halted it, but postponed resolving the underlying issue of independence for the south.

Add in the separatist tendencies in the eastern region of Sudan (exacerbated by the Eritrean-Ethiopian conflict), and the country as a whole is a slow-motion disaster, with three potential breakaway regions.

Darfur’s day-to-day level of violence may be lower than at the height of the slaughter by Khartoum-backed militias, but millions are still in displaced-persons camps–their villages and livelihoods ruined; their security still uncertain.

Peacekeepers and outside political efforts, first from the African Union, then in a hybrid with the UN, have been ineffective, with “settlements” collapsing in the swirling, increasingly international conflict. The Security Council’s recent one-year extension of the UN peacekeeping mandate didn’t change these fundamental operational and diplomatic realities.

The Obama administration entered office seemingly determined to resolve the Sudan problem, but has instead suffered from public displays of internal disagreement.

Last week, Special Envoy Scott Gration suggested to Congress that Sudan be taken off the US terrorism list, thus laying the basis to lift heavy sanctions previously imposed on Khartoum. Gration’s outspokenness (which produced mass confusion at the State Department’s daily press briefing on Friday) revived his earlier disagreement with UN Ambassador Susan Rice on whether “genocide” in Darfur is ongoing or receding.

But these disagreements only mask a larger problem for both humanitarian and political efforts in Sudan–a problem centered on the ICC indictments.

Pressed by Europeans, the Bush administration was essentially cornered into supporting the investigation leading to the indictments. In fact, the ICC process simply provided a fig leaf for the Europeans, who wanted to avoid any serious action about Khartoum, while pointing to the ICC as “doing something.”

Tragically, however, by taking the focus off the hard, unpalatable choices that could have made a difference in the real world, the ICC indictments have backfired, making it harder to pry loose concessions that once seemed within reach. Moreover, the ICC’s approach generated support for the regime among Third World countries (particularly the African Union) that saw indictments and UN peacekeepers as “Western imperialism.”

Khartoum thus turned what Westerners thought would be their bargaining chip to leverage concessions from Sudan into a Sudanese precondition barring further progress until ICC investigations and indictments are quashed.

This political jujitsu has unnerved ICC supporters, but even their “bargaining chip” idea was far from the original robust arguments for the ICC. Indeed, it is (in Sudan and elsewhere) completely backward.

Since the ICC strategy itself was effectively a charade to hide the West’s continuing distaste for effective action (military or clandestine) against Khartoum, fears of imperialism were a fantasy. The indictments, a Western display of feel-good moralism, are now more than unneeded complications: They are insuperable barriers to real progress, political or humanitarian.

A real political resolution for Sudan requires a new regime prepared to hold al-Bashir and his cronies accountable, and to negotiate peacefully with the country’s separatist regions. But regime change won’t come without outside help, decidedly unlikely during the Obama presidency, which views such policy with undisguised distaste. As for the Europeans, rhetoric is too often the sharpest tool in their national-security arsenal.

Abetted by the ICC’s unfortunate intervention, the prospects for Sudan remain decidedly unhappy. We will now have to see whether President Obama can square his devotion to international law and “open hand” diplomacy with the reality of a ruthless regime accused of genocide.

Iran’s Election Process a “Sham”

John R. Bolton |  Politico

Iran’s “democracy” under the Islamic Revolution of 1979 is a wondrous thing, as the June 12 presidential election and its riotous aftermath proved.

First, only candidates screened and approved by the mullahs in the Guardian Council could run–in this case, exactly four presidential candidates out of nearly 500 who applied. Second, Iran’s highest official is not the president but, rather, the supreme leader, currently Ayatollah Ali Khamenei.

Third, Iran’s election officials are not independent but rigorously controlled by the supreme leader. Fourth, the Islamic Revolutionary Guards Corps and other security forces stand ready, willing and able to preserve public safety if the “wrong” candidate appeared to win or protestd in defeat.

And fifth, whoever won wasn’t going to change Iran’s 20-year campaign to acquire deliverable nuclear weapons or its role as the central banker for international terrorism. The supreme leader and the IRGC control Iran’s foreign and national security policies, under both “reformist” presidents like Seyed Mohammad Khatami (1997-2005) and incumbent President Mahmoud Ahmadinejad alike.

Credulous foreign reporters missed all of this, partly because they spent their time talking to middle-class Iranians or Iranian ex-pats who think like them rather than doing hard investigative work to understand what was actually afoot. Perhaps these reporters never covered elections in Chicago. Some commentators predicted that President Barack Obama’s June 4 speech in Cairo would benefit Iranian “moderates,” and some compared the main challenger’s wife to Michelle Obama. Even Obama, self-referential as always, was caught up in the rapture, citing his Cairo speech as signaling “the possibility of change” in Iran.

Oh, well. There are, of course, two possibilities. One is that Ahmadinejad got 63 percent. The second is that he stole the election from Mousavi or at least provided himself ample insurance. The Associated Press first reported that Ahmadinejad was heading for “a surprise landside.” Reuters then reported that “the scale of his first-round victory stunned his main challenger, Mir Hossein Mousavi.”

In fact, what was stunning was that the Western media fell for the whole charade, although it was par for reporters whose political bias frequently obscures reality, whether in Iran or America. It was also par for Obama’s style of governance, which views speech making as a relaxing, convenient substitute for presidential action.

The media’s endlessly incorrect narrative about struggles between “moderates” and “hard-liners” within the Islamic Revolution of 1979 will doubtless continue, because abandoning it now would be admitting the intellectual poverty of three decades of Western reporting. It would have been easier if outsiders had from the outset understood the debate between the regime’s moderates and hard-liners this way: Hard-liners like Ahmadinejad want to continue Iran’s nuclear weapons and ballistic missile programs and boast about “wiping Israel off the map.” By contrast, the moderates want to continue Iran’s nuclear and ballistic missile programs but remain silent, thus more effectively deluding many willing Westerners.

Make no mistake, as the post-election demonstrations have demonstrated, there is enormous opposition to Iran’s existing government structure, and indeed to the entire Islamic Revolution of 1979. Young people (those under 30 constitute approximately 70 percent of the total population) are unhappy and know they could have a different life if freed from harsh clerical rule. Economic grievances are massive, after 30 years of theologians mismanaging the economy. And ethnic discontent (only about 50 percent of the population is Persian) is widespread.

But giving effect to this discontent was never in the cards in the June 12 election, which was intended to bolster the Islamic Revolution, not to undercut it. Outsiders, including Obama, conflated the seething national discontent with the sham election process and simply misunderstood what was actually happening. Such dramatic misperception of political reality inside Iran, does not, needless to say, bode well for overall U.S. policy toward Iran’s nuclear and terrorist threats.

In fact, with careful outside support, the post-election outrage in Iran, with time, could grow sufficiently to reverse the Islamic Revolution of 1979 and replace it with a system of representative government. What may be the most positive outcome from what the defeated Mousavi called this “dangerous charade” is that Iranians–and Westerners–will now realize there can be no true democracy as long as the Islamic Revolution remains in power.

Instead of continuing to play by the mullahs’ rules, Iranians across the board must resolve to change not just the rules but the entire system, overthrowing the Revolution and its superstructure and creating institutions that truly allow for representative government. That would be “change” we could believe in.

Obama’s Foreign Policy Setbacks

John R. Bolton |  San Diego Union-Tribune

The Republican Party’s latest Internet video shows then-candidate Barack Obama in 2008 saying, “Guantanamo, that’s easy. Close down Guantanamo … ” This video is becoming an instant classic, as recent events in Washington demonstrated with sudden clarity.

Mainstream American opinion asserted itself, disproving conclusively the idea that the 2008 U.S. election constituted a dramatic shift leftward. To the contrary, the president’s efforts to appease the Democratic Party’s left wing on issues like detaining terrorists at Guantanamo Bay and “enhanced interrogation techniques” have backfired badly. For the first time since his Jan. 20 inauguration, President Obama is on the defensive politically. Washington’s “conventional wisdom” is now that, contrary to the campaign theme of “change,” President Obama has largely retained the Bush administration’s detention and interrogation policy. Since it is still early in the Obama presidency, comparisons with its predecessor are not surprising. But the real issue is whether the president is losing so much political capital and credibility on national security that he cannot repair the damage. Consider the full measure of his political disarray:

First, by an overwhelming 90-6 vote, the Senate eliminated from the president’s budget all funds to close Guantanamo. As Daniel Inouye, the Democratic chairman of the powerful Senate Appropriations Committee, said, the president lacked “a coherent plan” for dealing with the detainees, a far cry from the “easy” decision to shutter “Gitmo.” Initially, therefore, Democrats sought to retain the funding by requiring the president to submit such a plan, but even that compromise was too hard. Democrats had to agree to eliminate the funding entirely to protect themselves politically.

Second, less noticed but perhaps more important, the Senate then voted 92-3 to require a classified threat assessment for every Guantanamo detainee before he is transported elsewhere. This has to be a frightening prospect for the administration. With the news media dutifully reporting the threat assessments (which will surely be leaked) before any arrive in America, this will become a story that never dies, to the president’s continuing political detriment.

Third, President Obama deliberately scheduled a speech defending his position immediately before a previously-scheduled speech by former Vice President Dick Cheney. The competing arguments were broadcast back-to-back by the major cable news networks, and received wide media coverage. But rather than calming the political environment, the contrast only made the issue more prominent, not least because of the unprecedented debate between a president and a former vice president. That is a new definition of a president on the defensive.

Finally, the substance of President Obama’s remarks showed how far he had shifted from the “easy” campaign days. He proposed to hold terrorist suspects indefinitely without trial, thus reaffirming one of the Bush administration’s core tactics. Civil liberties advocates reacted with horror; one of them said “if [the detainees] cannot be convicted, then you release them. That’s what it means to have a justice system.” This comment underlines the fundamental gap in perception between the Democratic Party’s left wing, and the Bush and Obama administrations (and the overwhelming majority of the American citizenry) on the other–namely, that the issue of terrorism is not about law enforcement, but about war. Before long, the debate moved to whether terrorists from Gitmo could be held in maximum-security U.S. prisons, another debate President Obama should not want. Federal courts could decide that the detainees’ legal status changes when they arrive on American soil, thus bringing many of them closer to release from prison. Holding them with other prisoners, rather than isolating them at Guantanamo, facilitates resuming contact with fellow terrorists and recruiting new adherents in the prisons. These dilemmas underscore that Guantanamo’s inmates are not common criminals, but a special threat that requires special treatment.

The war paradigm, based on state-versus-state conflict, is not entirely perfect for dealing with terrorism, but it is far superior to the law-enforcement paradigm. That is why enhanced interrogation techniques and detention facilities like Gitmo are required, at least until a new paradigm to deal with terrorists emerges, although none is in sight.

Speaker of the House Nancy Pelosi’s recent confusion and embarrassment over the extent of her knowledge of “enhanced interrogation techniques” is yet another facet of her party’s dilemma. If these techniques are so obviously abhorrent, why did not Pelosi and others object to them at the time they were briefed? That is why she has so conveniently “forgotten” about the briefings.

Her troubles, however, and Obama’s, are far from over. Terrorists are not simply bank robbers or petty vandals, but enemies of Western civilization. They are the barbarians of our time, and the law-enforcement approach appropriate within constitutional democracies simply does not apply to their belligerent and uncivilized war of terror against us. To conclude otherwise would be to ignore the recent lesson in reality. Whether President Obama learned that lesson remains to be seen.

Obama’s Prosecutions by Proxy

John R. Bolton |  Washington Post

President Obama’s passivity before the threatened foreign prosecution of Bush administration officials achieves by inaction what he fears doing directly. This may be smart politics within the Democratic Party, but it risks grave long-term damage to the United States. Ironically, it could also come back to bite future Obama administration alumni, including the president, for their current policies in Iraq, Afghanistan and elsewhere.

Obama has taken ambiguous, and flatly contradictory, positions on whether to prosecute Bush administration advisers and decision makers involved in “harsh interrogation techniques.” Although he immunized intelligence operatives who conducted the interrogations, morale at the CIA is at record lows. The president has played to the crowd politically, but the principles underlying his policies are opaque and continually subject to change. This hardly constitutes leadership.

Despite uncertainties here, developments overseas proceed apace. Spanish Magistrate Baltasar Garzón opened a formal investigation last week of six Bush administration lawyers for their roles in advising on interrogation techniques. Garzón did so over the objections of Spain’s attorney general, as he did in 1998 in proceeding against former Chilean president Augusto Pinochet. Under Spain’s inquisitorial judicial system, Garzón is essentially unaccountable, whatever the views of Spain’s elected government.

Asked repeatedly about Garzón’s investigation, the State Department has said only that it is a matter for the Spanish judicial system. Last week, Attorney General Eric Holder went further, implying that the Obama administration could cooperate. “Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it,” Holder said. This is deeply troubling. Obama appears to be following the John Ehrlichman approach, letting the U.S. lawyers “twist slowly, slowly in the wind.” Garzón’s is far from a run-of-the-mill police investigation in which an American tourist abroad runs afoul of some local ordinance. Indeed, from what appears publicly, U.S. consular officials would do more for the tourist than Obama is doing for the former Bush officials. If Obama is attempting to end the Garzón investigation, it is one of our best-kept secrets in decades.

Although the six lawyers are in a precarious position, they are only intermediate targets. The real targets are President Bush and his most senior advisers, and the real aim is to intimidate U.S. officials into refraining from making hard but necessary decisions to protect our national security. There is never a shortage of second-guessers about U.S. foreign policy. For example, former U.N. high commissioner for human rights Mary Robinson said during the NATO-Serbia war over Kosovo that “civilian casualties are human rights victims.” She asked, “If it is not possible to ascertain whether civilian buses are on bridges, should those bridges be blown?”

The question here is not whether one agrees or disagrees with the advice the lawyers gave, or with their superiors’ operative decisions concerning interrogation techniques. Nor is it even whether one believes our Justice Department should launch criminal investigations into their actions. (I believe strongly that criminalizing policy disagreements is both inappropriate and destructive.)

Instead, the critical question is who judges the official actions that U.S. personnel took while holding government office. Is it our own executive and judicial branches, within our constitutional structures and protections, or some unaccountable foreign or international magistrate in some unaccountable distant court? The proper U.S. position is to insist that our Constitution alone governs any review of our officials’ conduct.

This issue is not abstract. For the six lawyers, it has immediate effects on their lives, careers and families. Moreover, whether or not Obama has decided against prosecuting CIA agents, his decision in no way binds the creative mind of Señor Garzón, a man who has never shied from spotlights. Indeed, U.N. Special Rapporteur Manfred Nowak has already said that the other 145 states party to the Convention Against Torture must launch their own criminal investigations if the United States does not.

Behind-the-scenes diplomacy is often the best, and sometimes the only, way to accomplish important policy objectives, and one hopes that such efforts are underway. But in this case, firm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. The president must abandon his Ehrlichman-like policy and pronounce unequivocally that Spain should take whatever steps are necessary to stop Garzón.

Otherwise, in four or eight years, like Mary Robinson before them, future second-guessers will decide, say, that U.S. drone attacks in Pakistan constitute war crimes, and that former commander in chief Obama must be hauled before the bar of some mini-state to stand trial. After all, his decisions involve risking civilian deaths, not just shoving terrorists into a wall (and no protective neck braces, either).

Will President Obama’s successor vigorously dispute the legitimacy of foreign prosecutions, or will she follow the current Obama policy and let the foreign investigation proceed, perhaps even to trial? Obama and his advisers should think carefully about that second scenario–now.

Sudanese Dictator Thumbs His Nose at U.N.’s “Criminal Court”

John R. Bolton |  Liberal

The recent indictment of Sudan’s leader, Omar al-Bashir, by the International Criminal Court (“ICC”) graphically demonstrates why the ICC is fundamentally flawed. Criticizing the ICC, of course, is not equivalent to defending Bashir for his actions in Sudan’s Darfur region.  We can simply assume, and probably correctly, that Bashir is guilty of every offense the ICC has charged.

Bashir’s evil, however, does not justify the ICC’s indictment. The ICC is a potentially huge source of unaccountable power, exercising the weighty executive authority of prosecution, and the enormous judicial power of trial and sentencing, all without the slightest accountability to real people or their elected representatives. Moreover, for Americans, mixing executive and judicial powers in one self-contained institution is itself deeply troubling.

ICC advocates respond that it is responsible to the 108 governments now party to the Rome Statute establishing the ICC. But this defense actually demonstrates the ICC’s unaccountability: an international meeting of 108 governments is rarely capable of anything but platitudes, and certainly not the hard decisions required to oversee sensitive prosecutions.

Because the ICC lacks effective oversight, there is every risk it will take actions that have unforeseen effects in difficult crisis situations. In real governments, decisions can be coordinated to form an overall national policy. The ICC, however, is disconnected and autonomous, causing consequences for which it bears no responsibility.

In fact, Sudan’s decision to expel Western humanitarian aid groups in retaliation for Bashir’s prosecution now threatens to make the grave humanitarian crisis in Darfur even worse. While the Security Council has tried for years to create an effective international peacekeeping force in Darfur to reduce the violence and provide security for humanitarian relief deliveries, the ICC’s indictment has simply made matters worse, and will continue to have that unfortunate effect well into the future.

For too many Westerners, the ICC is a substitute for a truly effective response against the repression and violence taking place in Darfur. Unable or unwilling to do what is necessary to resolve the Darfur crisis, these Westerners are content with “gesture politics,” symbolic acts which may make them feel better about themselves, but which have no positive impact where the tragedy is actually occurring. The world’s hard men, like Bashir, are not deterred from committing outrageous and inhumane acts for fear of being arrested if they travel to the great capitals of Europe. That may deter those who create institutions like the ICC, but Bashir and his ilk are quite content to stay in the world’s Khartoums and run their cruel and authoritarian governments as they see fit. Moreover, many other governments around the world, attracted to Sudan’s rich oil reserves, will happily finance Bashir and those like him, making Sudan’s current government essentially immune from economic pressure.

Although many sincere people argue for “humanitarian intervention” in Darfur, or “the responsibility to protect” its suffering population, no government has yet been willing to take the difficult steps to actually carry out such an intervention. Nor is there any prospect for such action in the foreseeable future because of the tangible–if unpleasant–reality that stopping the Darfur atrocities is not sufficiently in any other country’s national interest that it will order its own citizens into harm’s way to end them.

The most logical answer to Bashir’s murderous ways is not to indict him from the safety of The Hague, but to empower the Sudanese and others to overthrow him. Then, with new, legitimate authorities in place, the Sudanese could themselves deal with Bashir and hold him accountable for the crimes he has long committed in their name. That is a far better way, if there are to be prosecutions, than trying to hold Bashir accountable in a court thousands of miles away from the crime scene.

A representative Sudanese government might, in fact, chose not to prosecute Bashir and his cohorts, but instead follow South Africa’s route after the end of apartheid. There, the new democratic government created a Truth and Reconciliation Commission to bring to light the facts of apartheid’s cruelty, and thereafter to move forward. One can advocate either prosecution or reconciliation, but that decision should ultimately be for the Sudanese to make.  Removing the decision from them nurtures false but superficially appealing charges of “Western imperialism,” and ultimately impedes Sudan’s own political development

Even among the most outspoken Western critics of Bashir, no one is lining up for “regime change.”  That should tell us something, and no one knows it better than Bashir, faced with the ICC indictment. He had no fear in expelling non-governmental organizations providing aid to the very people the indictment is theoretically supposed to be vindicating. Until the West understands the inherent conceptual defects of the ICC and the consequent real-world risks of its actions, we can, unfortunately, simply expect more tragedy like this in the future.

Restore the Senate’s Treaty Power

John Yoo, John R. Bolton |  New York Times

International agreements that go beyond the rules of international trade and finance should receive the intense scrutiny of the treaty process, regardless of their policy merits.

The Constitution’s Treaty Clause has long been seen, rightly, as a bulwark against presidential inclinations to lock the United States into unwise foreign commitments. The clause will likely be tested by Barack Obama’s administration, as the new president and Secretary of State-designate Hillary Clinton, led by the legal academics in whose circles they have long traveled, contemplate binding down American power and interests in a dense web of treaties and international bureaucracies.

Like past presidents, Mr. Obama will likely be tempted to avoid the requirement that treaties must be approved by two-thirds of the Senate. The usual methods around this constitutional constraint are executive agreements or a majority vote in the House and Senate to pass a treaty as a simple law (known as a Congressional-executive agreement).

Executive agreements have an acknowledged but limited place in our foreign affairs. Congressional-executive agreements are far more troubling. They have evoked scathing attacks by constitutional experts and have been strongly resisted in the Senate, at least so far.

America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control.

The framers of the Constitution designed the treaty process with a bias against “entangling alliances,” as Thomas Jefferson described them in his first inaugural address. They designated the Senate as the body responsible to protect the interests of the states from being bargained away by the president in deals with foreign nations. The framers required a supermajority to ensure that treaties would reflect a broad consensus and careful, mature decision-making.

America needs to maintain its sovereignty and autonomy, not to subordinate its policies, foreign or domestic, to international control. On a broad variety of issues–many of which sound more like domestic rather than foreign policy–the re-emergence of the benignly labeled “global governance” movement is well under way in the Obama transition.

Candidate Obama promised to “re-engage” and “work constructively within” the United Nations Framework Convention on Climate Change. Will the new president pass a new Kyoto climate accord through Congress by sidestepping the constitutional requirement to persuade two-thirds of the Senate?

Draconian restrictions on energy use would follow. A majority of the Congress would be much easier for Mr. Obama to get than a supermajority of the Senate. A scholar at the Brookings Institution has already proposed that a new president overcome objections to this environmentalists’ holy grail by evading the Treaty Clause.

President George W. Bush resisted many efforts at global governance. But his administration still sometimes fell into the temptation to flout the constitutional requirement of a two-thirds majority in the Senate.

In 2002, the administration considered submitting the Treaty of Moscow, a nuclear arms reduction agreement, for majority approval of Congress. Vice President-elect Joe Biden, who was then the chairman of the Senate Foreign Relations Committee, privately made clear that he would vigorously oppose such an attempt to evade the Senate’s constitutional prerogatives. The administration agreed to submit the agreement as a treaty, and the Moscow agreement cleared the Senate.

We hope the new vice president will not reverse his commitment to the Senate’s constitutional authority. But an administration determined to tie one hand behind America’s back might use Congressional-executive agreements to push the nation all too easily into quixotic and impractical global governance regimes.

President Bill Clinton signed Kyoto, but the Senate in effect rejected it. He also signed the Rome Treaty of 1998 that established an International Criminal Court, which would subject American soldiers and officials to unaccountable international prosecutors and judges for alleged war crimes (including, potentially, the undefined crime of “aggression”). Mr. Clinton did not even send this agreement to the Senate. Mr. Bush “unsigned” it. Mr. Obama might re-sign it and seek approval by only a majority of both houses of Congress.

Other international regimes might restrict America’s freedom of action to defend itself. In 1999, the Senate rejected the Comprehensive Test Ban Treaty, which would have undermined America’s ability to verify the reliability and effectiveness of its nuclear deterrent. Mr. Obama has said he supports ratification. The historical precedents are that major arms control agreements must receive the approval of two-thirds of the Senate.

President Bush, like President Clinton, did not sign a global agreement that would ban antipersonnel land mines, on the grounds that they are a key component of the American defense of South Korea. But his administration has pressed for ratification of the treaty on the law of the sea, which would subject disputes over the free passage of American naval vessels to the jurisdiction of an international maritime court–which the Senate has so far refused to ratify.

If Mr. Obama were to submit either of these agreements for approval by a simple majority of the House and Senate, his actions would pose a serious challenge to American principles of law and democratic governance. Global governance schemes delegate power to independent international organizations to make and enforce laws that would apply domestically, by international bureaucrats who are unaccountable to Congress, the president, American public opinion or the democratic process.

It is true that some multinational economic agreements, like Bretton Woods, the General Agreement on Tariffs and Trade and the North American Free Trade Agreement, went into effect after approval by majorities of Congress rather than two-thirds of the Senate. But international agreements that go beyond the rules of international trade and finance–that involve significant national-security commitments, or that purport to delegate lawmaking and enforcement functions to international organizations, or that could fundamentally alter the American constitutional system of individual rights–should receive the intense scrutiny of the treaty process, regardless of their policy merits.

By insisting on the proper constitutional process for treaty-making, Republicans can join Mr. Obama in advancing a bipartisan foreign policy. They can also help strike the proper balance between the legislative and executive branches that so many have called for in recent years.

Guest Speaker: John Bolton on Criminalizing Political Differences

John R. Bolton | Standpoint

Our free society will see serious trouble if we fail to see that not every political mistake is equivalent to Watergate and not every misstatement is perjury.

Having never been arrested anywhere by legitimate authorities, I was amused to learn some months ago that an illegitimate authority planned to arrest me when I spoke at the Hay Festival. George Monbiot, pretender to the throne of Monbiotshire, and assorted Hay camp followers were sufficiently outraged by a dissenting, non-Leftist voice sullying their muddy pleasures that they were spurred to action.When I wrote Surrender Is Not an Option, the memoir of my tenure as US Ambassador to the United Nations, I learned that authors not only write their books, but also serve as their chief marketing officers. I had, therefore, dutifully done about one million interviews since the book’s November 2007 publication, and saw Hay as one more brick in the marketing wall. To be honest, I had never heard of it before.

The would-be King George (George III in his later years comes to mind) believed I was a major architect of the Bush Administration’s Iraq policy–thus proving, among other things, that he hadn’t read my book. Since that’s all that due process requires in Monbiotshire, he now had only to arrest the body and take it back down his rabbit hole.

In the event, I appeared at Hay, answered an hour’s worth of questions and left the stage before King George could lay a hand on me. The Welsh constabulary was most helpful, actually having a little fun. Being an American, I asked one policeman if he was armed; he smiled and said: “I might be.” I felt even more secure. As I drove out of the western badlands of Wales, King George and his subjects pursued me, but got stuck in Hay’s copious supplies of mud. Ta-ta, as the locals say. The affair might be chalked up as nothing more than a publicity stunt for Hay, given that Monbiot writes for The Guardian, the festival’s sponsor. On the other hand, there was an underlying element of menace that would become apparent if the criminalisation of policy disagreements became more widespread.

In the case of the “citizen’s arrest”, the pernicious idea is that, based on their own moral self-evaluation, people can take the law into their own hands and determine who is a criminal. At a minimum, this approach is intended to deny legitimacy in the public square to opposing points of view, and taken to the next level–the threat or use of physical force–is intended to intimidate those views into silence. This is, in the worst case, the path first to anarchy and then to fascism.

Representative government’s central benefit is that competing viewpoints openly debate, with the majority view ultimately prevailing. In the United Kingdom, a majority in Parliament supported the Iraq war, deeming it both correct and lawful. Obviously, many disagreed, and they are perfectly entitled to express their views and continue working to reverse the relevant parliamentary decisions. What they are not entitled to do in a free, constitutional society is to use the techniques of force and intimidation. Although Monbiot’s attempt at a “citizen’s arrest” falls into the category of farce, more sustained and serious efforts along those lines are the basis of tragedy. No responsible citizenry should allow this cancerous view to take hold.

But even beyond the elementary distinction between legitimate and illegitimate citizen action is the critical question of limits on governmental action in democratic societies. Having failed to handcuff me, Monbiot announced he was going after bigger game: former Prime Minister Tony Blair, leader of the Iraq “war party” in Britain, now analogised to 20th century fascist leaders who launched wars of aggression. Let’s be clear: this analogy is nonsense. Blair advocated his views in a democratic society, and his views prevailed. He did not impose anything on anyone. Many may see his policies as wrong, even disastrously so, but he is guilty only of superior political leadership, not crimes against humanity. A free society’s punishment for political leaders who lose their support is turning them out of office. Comparing Blair to Hitler is not merely the fallacy of moral equivalence, but outright moral blindness.

Even more fragile is the claim, made under the rubric of “universal jurisdiction,” to try the leaders of other countries for “war crimes”. Apart from the laughably hubristic character of countries like Belgium, or the Duchy of Grand Fenwick, asserting universal jurisdiction over the entire world, the moral imperialism of the assertion betrays its basic weakness. Power without accountability is as unacceptable when it purportedly serves a “higher” moral authority as the reverse. That is what happens when the odd magistrate in Spain–or the United Kingdom–decides to arrest a foreign leader for alleged crimes unrelated to the arresting country.

All of this may simply be a passing fad, or it may be part of a larger trend, evident for decades in Washington, to criminalise political differences. Not every political mistake is equivalent to Watergate, not every misstatement is perjury and not every disagreement is evidence of the other party’s venality. If we fail to grasp this point, our free societies will see serious trouble ahead.

Global Governance and Shared Sovereignty

John R. Bolton |  AEI Online

By talking about breaking sovereignty down or sharing it or limiting it, people are saying toAmericans that we do not know how to govern ourselves effectively.

April 2008

On April 14, 2008, AEI senior fellow John R. Bolton gave the keynote address at the inauguration of the Global Governance Watch  (GGW), a joint project of AEI and the Federalist Society. GGW is a web-based resource that addresses issues of transparency and accountability in the United Nations (UN), NGOs, and related international organizations. Edited excerpts from Bolton’s remarks follow.

The phrase “global governance” is relatively new. Up until ten years ago, people used the term “global government.” But that term was dropped because, at least in the United States, there was not a lot of enthusiasm for it. So its supporters turned to other approaches. The organization that was its strongest proponent in the United States was the World Federalist Society, and it attracted a fairly broad base of support after the founding of the UN. I have read, for example, that the young congressmen Gerald Ford and John F. Kennedy were at one point either card-carrying members or said nice things about it.

How times have changed. As people have come to appreciate that the concept of global government is unwise and unworkable for the United States, so the World Federalist Society, as I understand it, has gone out of existence here and has morphed into other organizations with names that are indistinguishable from product advertisements. This development reflects the basic political reality in the United States.

The idea of compelling law or peremptory norms is a relatively new development.

The World Federalist Society is about as important in our political debate as the Esperanto Society is, with its notion of a global language. But still the institutions of international norming continue, which brings me to the substance of the concept of norming itself. It is a newer concept than most people think. The AEI library’s most recent edition of Black’s Law Dictionary is from 1933, and the legal phrase jus cogens is not even in it. This idea of compelling law or peremptory norms, even though enshrined in the Vienna Convention on Conventions, is a relatively new development. (The United States has not ratified the Vienna Convention and is not bound by it, by the way.) The idea behind jus cogens and behind much of the growth of customary international law in recent years represents a fundamental change from what scholars and statesmen understood customary international law to be in the past.

“Customary international law,” or as I prefer to call it, “customary international custom” is really the embodiment of state practice. This is something that evolves over decades, and it reflects a common-sense appreciation of the process involved as to what norms ought to be to govern behavior. It is the sort of evolution that we can accept and live with. But what has actually happened in the past several decades is that customary international law and the function of norming have become the captives of the international law professoriate, a dangerously underemployed group of people, who spend their lives developing new customary international law that does not derive from decades or centuries of state practice but comes from their own political agendas.

Indeed, the whole idea of jus cogens has expanded from the notion that two states cannot by bilateral treaty legitimize genocide or the slave trade to a world planted thickly with jus cogens, most of which happen to be contrary to any given American foreign policy on any given day, but which reflect nothing more than the received wisdom of a fairly limited and highly ideologically compatible group of people.

If this professoriate and their outriders were prepared to argue that customary international law derives from natural law traditions, then I would be prepared to grant some additional legitimacy to their line of argument. After all, if it is God’s law, even if being explained by professors, it has a certain force to it. I doubt, however, that there are many members of the law professoriate who believe in God, let alone are prepared to argue that international law as it has evolved over the centuries from natural law tradition represents something from heaven. Instead, it is a creation of their own overactive intellects, and it is intended to advance an agenda not compatible by and large with American interests. It goes without saying that the U.S. Senate, which happens to be the legislative body that deals with international treaties, has never taken a vote on customary international law as a general proposition, or on jus cogens, or on what it means.

Now, people have argued that customary international law has evolved over the centuries much like the common law did in England, and we therefore should not be concerned about the growth in the authoritativeness of customary international law because of the role common law played in the development of our own legal system. I think the analogy is inapposite. The role of common law in its constitutional dimension took place at a time when there was no functioning democratic governance system in the United Kingdom. That was evolving in the same way that common law was evolving, and it put the king and his agents under the same rule of law that everyone else had to live under.

So when asked today why we would need this kind of developing common law system, I would say that at least for countries and systems of representative government, the need is considerably less. We have the ability acting through our representatives to decide what law is going to govern us. We do not need a separate natural law system that puts constraints on us. That is a very fundamental point because the notion that governments and peoples cannot decide themselves what they want to be bound by is a fundamentally antidemocratic precept, and it arises in a variety of different ways. For example, when the Ottawa Convention against land mines was signed in the late 1990s, the United States did not become a party to it. Yet that did not stop the proponents from saying, well, 130 or 140 countries have signed it, and that is evidence of state practice, and indeed land mines are terrible, so the Ottawa Convention has demonstrated that customary international practice that raises it to the level of jus cogens. Therefore, the United States is in violation of international law, even though we have expressly declined to take part in the convention. This is the kind of logic that is developing more and more, and that represents both the transformation of customary international law and an assault on democratic theory.

There are other ways this theory evolves, typically utilizing agencies in the UN system. As Leonard Leo, executive vice president of the Federalist Society, said, much of the development of norming within these bodies comes as a result of–at least on the American side–people who are dissatisfied with political outcomes they have achieved at the state and federal level, and who are determined to take their argument into the broader international context, joined by many like-minded people, especially our friends in Europe, who see the norming process as the way to constrain the United States. And here is where our Constitution is a particular obstacle. A friend of mine who is a professor of international law told me the story of being at a convention in an American city where another American professor said the problem with getting really effective global norming is the Americans and their attachment to their Constitution. They are so stuck on their Constitution, he said, that they will not consider these broader norming possibilities. I wish I had been there.

Much of the development of norming comes as a result of people who are dissatisfied with political outcomes they have achieved at the state and federal level and who are determined to take their argument into the broader international context, who see the norming process as the way to constrain the United States.

Let me give you some specific examples of how this has played out in recent years. Let us start with the issue of abortion. Abortion is a controversial issue in our society. We argue about it in virtually every federal election. It is a subject of debate in the Pennsylvania Democratic primary. People feel strongly about it. The rules have changed, and they will continue to change. The point is that we are having a debate about it in the United States. In the meantime, in the international sphere, every time a document comes up, whether on the environment or on trade or on the occupied territories, somehow the subject of reproductive health finds it way into it, and we become involved in arcane discussions about verbal formulations that are really about abortion. They may sound like they are about equality of the sexes or reproductive health. But if you dig down into the archeology of the various phrases, they are fundamentally about whether you want to legitimize abortion. I am not here to argue one side or the other, but endless discussions in UN institutions about reproductive health and the occupied territories are not a positive way to spend our time either with respect to the Middle East or with respect to the abortion issue.

The second area in which it comes up frequently is the death penalty. Once again, in the United States, there is a vigorous, active democratic debate over the death penalty at the federal and state level. I am not arguing one side or the other. But I am here to argue that, in our system, we will decide whether we have the death penalty or not. Constant, repetitious adopting of resolutions, first in the UN Human Rights Commission and now in its inadequate replacement, are not a legitimate exercise of time and attention in the UN system. There was a very revealing example of this at the UN early in Ban Ki-moon’s tenure as secretary general when he was asked about application of the death penalty. He said that it was a matter for the member governments to take up. As a former foreign minister of South Korea, he was well aware that South Korea has the death penalty. The UN bureaucracy reacted in horror because the UN has acted on this question many times, and people there believe the death penalty is a no-no. So, he retreated and acknowledged the position of the UN. Now, I would ask you how anybody can believe the UN can have a position on an issue like this when we are debating it in a democracy. If you think the votes of the majorities that made up the anti-death penalty resolutions have more legitimacy internationally than our own democratic system, then I would welcome you saying it, and I would ask further what it is that makes anyone think that the use of the UN system for this purpose is going to have any global norming effect other than that ceaseless repetition finally wears people down. Global Governance Watch is not going to be worn down even if the UN Human Rights Commission passes another resolution on the death penalty.

The third example deals with gun control. We have seen in the life of this administration a number of efforts by American advocates of gun control to use the existence of an international problem–the illicit trafficking in a variety of weapons–to try to adopt a gun control agenda through the UN. The theory is that you get some kind of international convention on gun control adopted, that the U.S. Senate would ratify it, and the debate would be over. This strategy came up in the context of a number of conferences on what are called “small arms and light weapons” in conflict zones around the world. This starts the debate off in a loaded way because small arms and light weapons include everything from .45 caliber revolvers to crew-served mortars. I am a strong proponent of the Second Amendment, but even the Second Amendment does not preclude the government from banning mortars in your backyard. But by lumping them together, it all looks the same.

I thought that this was a mistake when I came across it in 2001 when I was in charge of arms control, which is how I got into the small arms and light weapons business. I was eager to give an address at the UN on small arms and light weapons. In my speech, I said that while we had legitimate national interest in illicit weapon trafficking, particularly in conflict zones where these weapons could be used against American troops, I did not think the conference should spend its time on issues within the domestic purview of member governments. This was especially true in the case of the United States, where we have a provision in the Constitution that former attorney general John Ashcroft had recently opined was a matter of individual right and not something that was a collective right. Therefore, I made the following revolutionary statement: we would not support any declaration or international convention that, if adopted as positive domestic law, would be unconstitutional in the United States. You would have thought that I had said something really objectionable, and in fact, I had, because it undercut the fundamental political agenda of those who thought that it was precisely the purpose of the conference to adopt statements that would lead to a convention that would ultimately constrain the United States in its domestic law. Now, again, reasonable people can disagree on this. But one has to wonder why international norming on this issue is preferable to the playing out of our democratic system.

This gets to the nub of what sovereignty is all about. To Americans, sovereignty is not some abstract concept. It is not something held by a distant government or king. For us, in this country, we are sovereign. We govern; we determine what our government will do. So by talking about breaking sovereignty down or sharing it or limiting it, people are saying to us that we do not know how to govern ourselves effectively and that a little less self-government would be good for us. I disagree, and I think the vast majority of Americans disagree. I would love to have a debate in this presidential campaign about global governance and shared sovereignty. I hope we will have one. I think the AEI-Federalist Society global governance project will go a long way toward encouraging that debate.

American Justice and the International Criminal Court

John R. Bolton |  AEI Event

John R. Bolton, under secretary of State for arms control and international security, discusses the International Criminal Court.

There has been considerable debate in the United States about the International Criminal Court (“ICC”), much of it in this very room. Rather than rehearse many of those arguments, however, I thought it might be helpful to give you a report from the front, describing current efforts by the United States to protect its citizens from the illegitimate assertion of authority over them. As President Bush has argued as far back as the 2000 campaign, the problems inherent in the ICC are more than abstract legal issues; they are matters that touch directly on our national interests and security, and therefore also affect the security of our friends and allies worldwide. As a result, the United States is engaged in a global campaign to conclude bilateral agreements that will ensure U.S. persons are not subjected to the ICC’s jurisdiction.

For numerous reasons, the United States decided that the ICC had unacceptable consequences for our national sovereignty. Specifically, the ICC is an organization that runs contrary to fundamental American precepts and basic Constitutional principles of popular sovereignty, checks and balances, and national independence.

U.S. military forces and civilian personnel and private citizens are currently active in peacekeeping and humanitarian missions in almost 100 countries at any given time. It is essential that we remain steadfast in preserving the independence and flexibility that America needs to defend our national interests around the world. As President Bush said: “The United States cooperates with many other nations to keep the peace, but we will not submit American troops to prosecutors and judges whose jurisdiction we do not accept.. . .  Every person who serves under the American flag will answer to his or her own superiors and to military law, not to the rulings of an unaccountable International Criminal Court.”

Accordingly, in order to protect all of our citizens, the United States is engaged in a worldwide effort to conclude legally binding, bilateral agreements that would prohibit the surrender of U.S. persons to the Court. These Article 98 agreements, so named because they are specifically contemplated under Article 98 of the Rome Statute that created the ICC, provide U.S. persons with essential protection against the Court’s purported jurisdictional claims, and allow us to remain engaged internationally with our friends and allies.

Thus far, the United States has concluded and signed Article 98 agreements with 70 countries all over the globe, representing over 40 percent of the world’s population. Each Article 98 agreement meets our key objective–ensuring that all U.S. persons are covered by the terms of the agreement. This broad scope of coverage is essential to ensuring that the ICC will not become an impediment to U.S. activities around the world. We must guarantee the necessary protection to our media, delegations of public and private individuals traveling to international meetings, private individuals accompanying official personnel, contractors working alongside official personnel (particularly in the military context), participants in exchange programs, former government officials, arms control inspectors, people engaged in commerce and business abroad, students in government sponsored programs, to name just a few categories of persons. The orderly conduct of news reporting, diplomatic relations, economic activity, tourism, military operations, humanitarian programs, cultural and education exchanges, and other contacts between peoples around the world depend upon rules that are fair, well understood, and subject to appropriate due process.

Article 98 agreements serve to ensure that U.S. persons will have appropriate protection from politically motivated criminal accusations, investigations, and prosecutions. These straightforward agreements require that our partners agree, either reciprocally or non-reciprocally, not to surrender U.S. persons to the International Criminal Court, not to retransfer persons extradited to a country for prosecution, and not to assist other parties in their efforts to send U.S. persons to the ICC. We have worked hard to find mechanisms and formulations in these agreements that meet our requirement of blanket coverage while also responding to the needs of our bilateral partners.

Indeed, our current tally attests to the growing consensus worldwide that Article 98 agreements that provide for coverage of all U.S. persons are legitimate mechanisms provided for in the Rome Statute itself. Of the 70 countries that have signed Article 98 agreements with us, 50 are signatories or States Parties to the Rome Statute. Based on our extrapolations from negotiations currently underway, not only do we anticipate a rising number of total Article 98 agreements, but even more agreements from States Parties and signatories to the Rome Statute. Our ultimate goal is to conclude Article 98 agreements with every country in the world, regardless of whether they are a signatory or Party to the ICC, or regardless of whether they intend to be in the future.

The U.S. decision to seek these bilateral agreements originated during the open debate in the U.N. Security Council on Resolution 1422. A number of ICC proponents, including European Union members, encouraged us not to resolve these issues in the Security Council, but rather to do so on a bilateral basis. Following this advice from our European friends, we began in the late summer of 2002 to seek Article 98 agreements as an arrangement that would satisfy our concerns, but also fall within the Rome Statute provisions.

Ironically, the European Union (“EU”) subsequently rejected the advice of some of its own members, and established a coordinated position that has made it difficult for its member states to conclude acceptable Article 98 agreements with the United States. Moreover, the EU is also now putting pressure on EU aspirant countries to apply restrictive conditions on such agreements with us. Some EU officials have argued that the wording of Article 98 of the Rome Statute limits the categories of persons that can be covered by bilateral non-surrender agreements, and the EU has imposed guidelines to this effect. On the contrary, the Rome Statute does not impose any obligation on States Parties to refrain from entering into non-surrender agreements that cover all their persons, while those who insist upon a narrower interpretation must, in effect, read language into Article 98 (2) that is not contained within the text of that provision.

From our perspective, the EU is imposing an unfair choice upon our friends and allies, particularly those countries seeking to join the EU. It is difficult to see how our attempt to use provisions of the treaty to protect U.S. persons would do unacceptable damage to the spirit of the treaty, when the treaty itself provides for such agreements. Indeed, parties to the Rome Statute have used Article 124 to exempt their nationals for a period of seven years from the Court’s war crimes jurisdiction, yet there has been no suggestion that triggering these treaty provisions will undermine the Court. One EU member, France, has already invoked that exemption in order to protect its citizens from accusations with respect to war crimes. We hope that senior EU officials in Brussels will reconsider their insistence on attaching overly restrictive conditions to Article 98 agreements, given the wide support we are receiving on this issue elsewhere in the world. We also continue to discuss, on a bilateral basis with EU member states, our desire to conclude properly-crafted Article 98 agreements with them.

Increasingly, Article 98 agreements play an important role in U.S. bilateral relationships regardless of whether a State is a Party to the Rome Statute. Of importance here is the decision by the Congress to ensure that these agreements are a foundation for military cooperation relationships around the world. The American Servicemembers Protection Act, which was enacted with strong bipartisan support by both houses of the Congress, prohibits military assistance to countries that have ratified the Rome Statute but not entered into Article 98 agreements with the United States. Additionally, there are strong reasons for entering into these agreements with States that are not Party to the Rome Statute. First, a State not currently a Party to the Rome Statute may become one at any time. Second, the ICC may request that a non-Party arrest and surrender to the Court a U.S. person on its territory. The Rome Statute contains no requirement for the State to notify the United States, or receive our consent, before such a surrender. Concluding an Article 98 agreement is thus important to future cooperation on a range of diplomatic, military, and security initiatives. It also sends an important political signal that American concerns are widely shared around the world.

It is a misconception that the United States wants to use these agreements to undermine the ICC. To the contrary, we are determined to be proper in our relations with the Court, proceeding in a manner specifically contemplated by the Rome Statute itself. Moreover, in each agreement, the United States makes clear its intention to bring to justice those who commit genocide, crimes against humanity and war crimes. This is the stated goal of ICC supporters, and a goal that the United States has and will maintain.

Proponents of the ICC refuse to concede that the Court poses any problems for the United States. One of the principal arguments of the ICC’s supporters has been that it will function, in effect, as a “court of last resort.” For countries that have functioning judicial systems, they contend, there is no reason to question the legitimacy of those countries investigating and prosecuting their own nationals accused of crimes covered by the Rome Statute. Indeed, this concept, given the name “complementarity,” was touted in the debates leading up to the Rome Statute, and in the lobbying campaign in the United States after the signing of the Statute, as perhaps the main reason the United States had nothing to fear from the ICC.

This is certainly the view that most European governments hold. They tell us in our bilateral discussions with them about Article 98 agreements that the ICC is mostly for use in “failed states,” where there is no functioning judicial system, and where, absent the ICC, there would be no capacity whatever to administer justice, as defined in the Rome Statue. In many cases, these governments have told us that they would envision investigating and prosecuting their own citizens in their national courts, rather than resorting to the ICC in the first instance, thus asserting their prerogatives under the “doctrine” of “complementarity.” One major problem with this view, of course, is that the “doctrine” itself is untested, and whether and under what circumstances the ICC’s Prosecutor will accept assertions of national jurisdiction remains essentially unknown.

What the United States is basically seeking, through Article 98 agreements, is nothing more than what States Parties to the Rome Statute claim they already have. If someone were to assert that the American judicial system was corrupt, incompetent or tolerant of war crimes and crimes against humanity, and therefore amounted to the kind of “failed state” for whose judicial system the ICC was intended to substitute, that would be one thing. We would, I can assure you, certainly be prepared to contest those assertions. Not surprisingly, however, no one seriously makes this argument. No one contends, openly at least, that the American judicial system would not, properly and diligently, perform its function in appropriate circumstances. Nor could they. As Secretary Powell has said: “We have the highest standards of accountability of any nation on the face of the earth.”

Of course, since the United States is not even a party to the Rome Statute, there is even less reason why we should be treated more harshly than States Parties. It is neither reasonable nor fair that the crimes laid out in the Rome Statute should apply to a greater extent to States that have not agreed to its terms than to those that have. This aspect of the Rome Statute is, among other things, a fundamentally unfair and highly dangerous break from the long-established premise of the International Court of Justice that there is no jurisdiction without the consent of States Parties.

But let us return to the fundamental point that “complementarity,” one of the supposed bedrocks of the ICC, is being denied the United States by those countries that do not accept Article 98 agreements. Here, we can only conclude that another agenda is at work, namely the continued determination of some ICC supporters who hope to cajole the United States into adhering to the Rome Statute, ironically under the rubric of better protecting its own citizens. This is an interesting approach, and one that is doomed to failure. We will not join the ICC, and we will continue to press for Article 98 agreements.

Subjecting U.S. persons to this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism. This is a macro-constitutional issue for us, not simply a narrow, technical point of law. Our concerns about politically motivated charges against U.S. persons are not just hypothetical. Recently in Belgium, allegations of war crimes were brought against the President, the Vice President, the Secretaries of State and Defense, and former President Bush under that country’s notorious and far-reaching universal competence statute. That problem was brought closer to home when senior Belgian officials themselves were charged under the statute, and the law was subsequently amended to limit its scope. Without sufficient protection against such frivolous charges, responsible officials may be deterred from carrying out a wide range of legitimate functions across the spectrum, from actions integral to our national defense to peacekeeping missions or interventions in humanitarian crises or civil wars, such as in Liberia. Simply launching criminal investigations has an enormous political impact. Although subsequent indictments and convictions are unquestionably more serious, a zealous independent Prosecutor can make dramatic news just by calling witnesses and gathering documents, without ever bringing formal charges.

Accumulated experience strongly favors a case-by-case approach to resolving serious political and military disputes, rather than the inevitable resort to adjudication. One alternative to the ICC is the kind of Truth and Reconciliation Commission created in South Africa. This approach was intended to make public more of the truth of the apartheid regime in the most credible fashion, to elicit admissions of guilt, and then to permit society to move ahead without the prolonged opening of old wounds that trials, appeals, and endless recriminations might bring.

Another alternative, of course, is for the parties themselves to try their own alleged war criminals, as the doctrine of “complementarity” supposedly contemplates. In fact, the fullest cathartic effect of the prosecutorial approach to war crimes occurs when the responsible population itself comes to grips with its past and administers appropriate justice. The international effort should encourage warring parties to resolve questions of criminality within national judicial systems, as part of a comprehensive solution to their disagreements. Removing key elements of the dispute to a distant forum, especially the emotional and contentious issues of war crimes and crimes against humanity, undercuts the very progress that these peoples, victims and perpetrators alike, must make if they are ever to live peacefully together.

We strongly support states fulfilling their sovereign responsibility to hold perpetrators of war crimes accountable rather than abdicating that responsibility to the international community. For this reason, the United States has been a major proponent of the special court in Sierra Leone because it is grounded in sovereign consent, combines domestic and international participation in a manner that will generate a lasting benefit to the rule of law within Sierra Leone and its regional environs, and interfaces with the truth and reconciliation commission of that country to address accountability for a wide range of perpetrators.

In the past, the United States has supported the establishment of ad hoc tribunals, such as those for Yugoslavia and Rwanda, which, unlike the ICC, are created and overseen by the U.N. Security Council, under a U.N. Charter to which virtually all nations have agreed. But we are now moving beyond that. The international community can help equip local governments to try cases domestically in a credible manner. We are doing this in the Balkans and in Rwanda. On October 30, the United States pledged $10 million at a donors’ conference in The Hague to support domestic war crimes trials in Bosnia and Herzegovina. We are supporting preparations for war crimes trials in Croatia and Serbia and Montenegro, something that would have been unthinkable a few years ago. We are also supporting such efforts in Rwanda. Now, the Security Council tribunals are beginning to look at transferring cases under their jurisdictions to domestic courts.

In matters of international justice, the United States has many foreign policy instruments to utilize that are fully consistent with our values and interests. We will continue to play a worldwide leadership role in strengthening domestic judicial systems and promoting freedom, transparency and the rule of law. We seek no immunity for our citizens, but only a simple, non-surrender agreement as contemplated in the Rome Statute. We fully commit ourselves, where appropriate, to investigate and prosecute serious, credible accusations of war crimes, crimes against humanity and genocide that have been made against any of our people.

We respect the decision of states to become parties to the Rome Statute, but they in turn must respect our decision not to be bound by jurisdictional claims to which we have not consented. As President Bush stated in his National Security Strategy, “We will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court, whose jurisdiction does not extend to Americans and which we do not accept.” States Parties to the Rome Statute have created an ICC to their liking, and they should live with it. The United States did not agree to be bound, and must not be held to its terms.

Question and Answer

Barbara Slavin of USA Today: I’m going to ask you a question that is not about ICC per se but I think relates to it. You said there is no jurisdiction without the consent of states parties, this is an important principle in international law. My question is about the Proliferation Security Initiative, which the United States is organizing. What is the basis in international law for putting something like this together, how can you stop ships of countries that are not parties to this agreement, and how do you propose to give it some basis in international law if it does not have one already?

Bolton: Well actually there is a vast reservoir of authority, both national authority and international authority, for our ability to interdict shipments of weapons of mass destruction and ballistic missiles on sea, on land, and in the air. We have very carefully reviewed this in the course of our preparations for the Proliferation Security Initiative, many lawyers in the United States have looked into it, as have many lawyers in the other ten countries that have joined with us in the Statement of Interdiction Principles that was announced in Paris some weeks ago. These include countries like France, Germany, Japan, Australia, countries with a wide variety of legal systems, different political colorations to their government, different views about international law. We have all come to the conclusion that we have authority to conduct such interdictions under a variety of different circumstances. Now there are an infinite number of possibilities in which interdictions can take place and there’s no doubt, and we have discussed this among ourselves, where there are circumstances where our authority may be unclear or it may be lacking, and in those circumstances we have considered the possibility of seeking additional authority. One example of that is ongoing consideration in the international maritime organization of amendments to the Suppression of Unlawful Acts at Sea Convention, a convention that’s already subscribed to by over 90 countries. But there’s no doubt in our mind that there is a substantial amount of authority existing and that we’re prepared to use it. And that’s not just my view, that’s the view of the considered legal judgement of the entire American government and of the ten other governments that have subscribed to the PSI.

Slavin, USA Today: Despite what you say about U.S. willingness to prosecute people suspected of serious crimes and so on, our refusal to sign on to the ICC has contributed to a sense, perhaps, in the rest of the world that the U.S. makes the rules that it intends to enforce and it doesn’t want to be bound by anybody else’s ideas. Are you concerned that our failure to sign onto the ICC has made the United States even more unpopular abroad and contributed to the sense that we are not to be bound by anybody else’s ideas?

Bolton: As I said in my remarks, we have the strictest system of accountability under both military and civil law against persons accused of war crimes and crimes against humanity of any country on earth. I’d be happy to compare our judicial system with anybody else’s and compare our record with anybody else’s. The issue here is the critical issue of who makes the decisions on investigations and prosecutions, and what we believe is that it’s appropriate for American institutions to try and prosecute American citizens. And that is the same basis that most other countries that have joined the ICC have concluded that they’re going to follow, that their courts will investigate their citizens as well. So what we’re asking for here is not impunity, what we’re asking for is a proper allocation of responsibility for this function, and I don’t think its impaired American objectives anywhere in the world, as demonstrated by the fact that 70 countries have already shown they agree with us and many others are in very intense negotiations that will lead here in a matter of weeks or months to many more Article 98 agreements.

Ruth Wedgwood, SAIS: John, I had one question just on something you may want to do behind the scenes more than publicly perhaps, but, as I mentioned in my talk just a few minutes ago, some European lawyers hold to a doctrine of so-called double complementarity, that not just the case but the person would come home, so father Bush or Tommy Franks would just get a two-way ticket back to Washington. It does not do everything you want an Article 98 agreement to do, but if Luis Moreno Ocampo were to adopt that as his prosecutorial of the complementarity article, that I think could be very helpful to us, and I wonder if you might want to give some thought to that as a belt and suspenders safeguard.

Bolton: Well it’s a possibility. I think we’re working on the belt part of it now, and we’ll see what happens. Frankly, if the European Union would agree to the scope of coverage that we feel we need, and that is to protect all American citizens, not just government officials and military personnel, we’d have 180 of these agreements signed up almost over night and I think that would solve the problem right there.

Heather Hamilton, World Federalist Association: We’ve heard that funds, military assistance, is being withheld from several key American allies who have troops on the ground in Iraq. In particular, for example, Estonia stands to lose $2.75 million from the ’03 Iraq supplemental including $800,000 for night vision goggles, $500,000 for explosive demolition equipment, and $1.45 million for general equipment all for troops that they have deployed in Iraq, and that’s only one of several examples of countries losing assistance specifically for being in Iraq. Does the administration have any plans to issue waivers on the basis of national security as permitted in the American Servicemembers’ Protection Act for those countries that are there in Iraq with us on the ground as part of the Coalition?

Bolton: Well I guess the first answer I’d give to that is ask where you got those figures, but maybe I won’t press that particular point here today. The question of waivers is an authority provided by the terms of the American Servicemembers’ Protective Act, and the decisions that we make to provide temporary or programmatic waivers will be announced when we’re ready to announce them.

Harpinder Athwal, World Federalist Association: I’m curious to know the role that the United States will be playing in the Democratic Republic of the Congo. Especially as the ICC has announced its preliminary case collection, information collection proceedings in the Congo and is looking to national states working in the Congo at the moment and also organizations on the ground there who have been collecting evidence for a long time now. Will the U.S. be cooperating with the ICC on this issue?

Bolton: I think under the terms of the American Servicemembers’ Protection Act and our own policy that what the ICC does there it will pretty much do on its own, and they’ve announced that that is going to be one of their priorities and we’ll certainly watch it with interest.

Julia Graff, Independent Student Coalition for the International Criminal Court: I have two questions, first in your talk you mentioned the unaccountability of the prosecutor. I think in discussing fear of politicization of the court it’s important to recognize that there are built-in limitations to prosecutorial discretion, the most powerful of which is the Security Council’s power to defer investigations and prosecutions for 12 month periods which are renewable. I guess my question in trying to understand your concern about politicization of the ICC is do you feel that the Security Council is going to be too timid in invoking those powers?

Bolton: I think, as you surely know as a careful student of the court, the original draft of the Rome Statute gave the authority to the Security Council to initiate prosecutions, and therefore, that the authority to initiate prosecutions was subject to a veto by the five permanent members. Over the objection of the Clinton administration, that was changed to provide that the Council had only the authority to try and block investigations that the prosecutor had already started and which resolution itself, of course, would be subject to a veto. So I think that the risk of politicization and the risk to Americans in particular is quite intense because of that provision.

Graff: My second question was just that you had mentioned that the Rome Statute applies more harshly to citizens of non-states parties than to citizens of states parties, and I was wondering if you could explain in what way that is so.

Bolton: For all of the reasons I have just laid out for the last twenty minutes in the speech why we’re seeking Article 98 agreements. A state party to the Rome Statute can invoke the doctrine of complementarity and try one of its own nationals in its own court, but we, not a state party to it, are precluded from that unless we can get our citizens back, and that’s why the statute cuts unfairly and it is one mark of why the Rome Statute does constitute such a dangerous precedent, purporting to be a treaty that binds states that have not subscribed to it, which I think is intolerable.

Elyse Labatt, CNN: Just to follow up on the question about the Congo and how you said that the court would be acting on its own. I’m not sure if the Congo actually applies in this case but are you concerned that the U.S. decision not to become party to the court will affect U.S. national security interests by hampering U.S. ability to influence who might be prosecuted by the court and perhaps that those parties that are prosecuted by the court did some damage to U.S. national security interests?

Bolton: It is a conscious assessment of the calculus of the cost and benefits of joining or not joining the court that led to our conclusion that we were not going to join and there’s always an argument in international diplomatic circles that it’s better to be involved than not to be involved, and there’s at least a minimal element of validity to that, but the far greater risk consisted of giving this court any institutional validity at all, for all of the reasons that I’ve expressed here today plus all of the other reasons that I’ve expressed in earlier speeches in my official capacity, fully cleared across the entire United States government, about the problems that we have with this court. On balance I think it was pretty clear to us that the risks posed by this court are such that we’re far better off not participating.

Christina Hartman, Independent Student Coalition for the International Criminal Court: We are one of those groups that are proponents of the ICC but we also work to present both sides of the issue and give both sides a platform from which to debate on the International Criminal Court. You indicated in your speech that the intention of the Article 98 agreements was not to undermine the court. And one of the things that our group does is work to maintain a positive relationship between the United States and the ICC. I’m wondering what is the U.S. government doing to make sure that, despite the negative implications of the Article 98 agreements that there is going to be a positive relationship between the United States and the court.

Bolton: Well, I can’t guarantee that there will be. I think we have demonstrated by our use of the Article 98 mechanism that we are prepared to act within the constraints that Article 98 provides. We could have simply said we’re not going to engage in these discussions at all. And, in fact, I can tell you even for large numbers of countries with which we have not yet signed Article 98 agreements they have given us very solemn political assurances that they’re not going to turn any Americans over to the court. Our success, I think, in protecting Americans by at least politically binding statements is as substantial, perhaps in some cases even more so, than our success with the 70 Article 98 agreements that we’ve signed. But that is not sufficient in our judgment; that’s why we continue to seek the Article 98 agreements.

Richard Griffiths, United Church of Christ: This morning in our panel discussions there was quite a lot of discussion about complementarity and you made a comment and I copied it down and I wonder if you’d comment on your sense of the concept of it, that it is a doctrine that is still untested fundamentally.

Bolton: Would you care to elaborate the circumstances in which it has been tested?

Richard Griffiths: No, but I think that you’re lifting this up (unintelligible.)

Bolton: Seriously, let’s talk here for a minute about this. Where has the doctrine of complementarity been used before? I mean, I’ll throw the question out to the whole audience, where has this doctrine been used before? It is a theory, it’s an interesting theory, and it’s a completely untested theory, as I think I have just demonstrated.

Maggie Gardiner, World Federalist Society: You emphasized in your talk that we have the full intent with the Article 98 agreements to prosecute these individuals in the United States, which I would hope we would do. But at the time the administration announced its intent not to be bound by its signature on the Rome Treaty, the administration also said that we would be addressing the gaps in our laws that do not allow us to prosecute all the crimes that are covered by the ICC. Even though it’s based largely on our own military code, there are other places in our criminal code where it does not match up exactly. I was wondering if you could comment on what progress has been made on that project, if any?

Bolton: First let me say that the scope of the substantive offenses listed in the Rome Statute are really quite vague. They have frequently taken the language from existing treaties and turned them into what they purport to make as criminal offenses. I suggest one difficulty with that approach is that if you had that language enacted in the form of criminal statutes in the United States they would almost surely be subject successfully, I think, to challenges under the void for vagueness doctrine because they don’t give fair warning to the defendant, and all of you who are worried about civil liberties I’m sure will care about that as well. So part of what we’re trying to do in the research that the Department of Justice is conducting is see what is appropriate in these vague and nebulous provisions of the Rome Statute that requires modification under existing American criminal law. But, as I said before, quoting Secretary Powell, we have the highest standard of accountability on these crimes against any country in the world, and I am very confident in making that statement.

David Wallace, Edelman Public Relations: You had said in your speech that you had hoped that EU bureaucrats would stop…

Bolton: Senior EU officials.

David Wallace: Senior EU officials would stop, I guess, trying to force or coerce new EU countries from not signing bilateral Article 98 agreements with us. Is there an “or else” there? Is there some sort of sanction that we would do if this activity does not stop?

Bolton: No, I think what we’re trying to do is show to the Europeans that their view of Article 98 is unnecessarily constrained and as of this moment with 70 other countries that have agreed with us in our interpretation of Article 98 I think it’s clear from just a simple legal analysis that there’s more than one permissible reading of Article 98. Accordingly, a decision to enter into an Article 98 agreement with us or not is fundamentally a political decision, not a legal decision. That’s why we’ll continue our bilateral negotiations with individual EU members in the hope and I think, ultimately, the expectation that we will conclude acceptable Article 98 agreements with them.