Last week, National Security Adviser John Bolton gave a speech in which he threatened that the U.S would consider taking legal action against officials of the International Criminal Court (ICC) should it try to prosecute Americans. It could do the same, he added, if the ICC prosecuted citizens of America’s allies, including—Bolton explicitly stated —Israel. Jeremy Rabkin comments:
Some critics [of the speech] warned that such action would undermine respect for the rule of law around the world—since it threatens targeting actual judges! That is missing the point. As a nonparty to the ICC treaty, the United States has never agreed to submit its nationals to the court. Still less has the United States agreed that third-party states can extradite Americans to this court in The Hague.
It is one thing for national courts to prosecute Americans for offenses committed on their territory. . . . It is something quite different for a court claiming to speak for humanity at large to try Americans without—as we see it—any serious legal ground for such action. . . . Why are the officials of the ICC entitled to a special privileged status? To say that [John] Bolton’s blast against the ICC undermines “respect for the rule of law” implies that any official of any corrupt or tyrannical regime who is locally designated a “judge” must have a claim on our respect. That is not respect for law but for the mystique of the robe. . . .
President Trump has repeatedly complained that most NATO states shirk the costs of military preparedness. That’s a serious problem. But surely it is worse when our partners, lacking the resources to provide military assistance, still want to participate in legal second-guessing of what fighters have done. The European idea seems to be that Americans will do the fighting and Europeans will assist with the judging.
Meanwhile, Angela Merkel boasts that the security of Israel is a fundamental principle of German foreign policy (Staatsraison), but there is no sign that her government will lift a finger to resist ICC prosecution of Israeli soldiers for what officials in the safety of The Hague regard as excessive force in responding to missile attacks. The important thing, as Immanuel Kant says, is to prove one’s good intentions by making no exceptions—which means, in practice, no serious judgments about circumstances and ground-level realities. Bolton’s warning was to the point: states that take the side of the ICC can’t be reliable partners.