On September 10, 2018, U.S. National Security Advisor John Bolton delivered his first major policy speech before the Federalist Society. Bolton clarified that the Trump Administration will use any means necessary to protect U.S. citizens, and those of its allies, from unjust prosecution by the International Criminal Court.
Bolton said a major reason for his remarks was that on November 3, 2017, the ICC’s Chief Prosecutor issued a statement concerning her request to start an investigation into the situation in Afghanistan. The Chief Prosecutor indicated the investigation would target the Afghan National Security Forces, the Taliban, and the Haqqani network, as well as war crimes allegedly committed by U.S. service members and intelligence professionals during the Afghan war since May 1, 2003.
According to Bolton “our worst predictions about the ICC’s professed and overly broad prosecutorial powers were confirmed” when “the ICC prosecutor requested authorization to investigate alleged war crimes committed by U.S. service members and intelligence professionals during the war in Afghanistan.”
He continued that “(n)either Afghanistan nor any other party” to the treaty had solicited the investigation. “Literally any day now, the ICC may announce the start of a formal investigation against these American patriots.” He observed that many Americans worked on Afghanistan matters “in the wake of the 9/11 attacks.”
Bolton announced that, if the ICC formally opens an investigation, the Trump Administration will consider the following steps: negotiate even more binding, bilateral agreements to prohibit countries from surrendering U.S. persons to the ICC; to the extent allowed by U.S. law; ban ICC judges and prosecutors from entering the U.S.; sanction their funds in the U.S. financial system, and prosecute them in the U.S. criminal system; consider acting in the UN Security Council to limit the ICC’s authority, including to ensure that the ICC does not exercise jurisdiction over U.S. nationals and the U.S. allies that have not ratified the Rome Statute; and take action against entities and persons who cooperate with the ICC with respect to cases against U.S. nationals.
Bolton explained the Trump Administration will protect American constitutionalism, its sovereignty, and its citizens. Bolton observed that, as Trump said in his first foreign policy speech as a Presidential candidate in April 2016, given in the same Mayflower Hotel that Bolton delivered his talk, the Trump promised “in every decision we make, we will put the interests of the American People first.”
In his remarks, Bolton explained that the ICC was established in July 2002 with the entry into force of the Rome Statute. While the U.S. originally signed the Rome Statute at the very end of the Clinton Administration, it was not submitted to the Senate for ratification. In May 2002, President George W. Bush authorized the then-Under Secretary of State John Bolton to “unsign” it based on the view of the U.S. government that it was fundamentally illegitimate.
Bolton explained the U.S. government’s position to unsign the Rome treaty is based on concerns of the U.S. government that the ICCC has broad, unaccountable powers that posed a significant threat to U.S. sovereignty and its constitutional protections. Bolton said it is a fundamental principle of international law that a treaty is binding only on its parties, and that it does not establish obligations for non-parties without their consent.
In August 2, 2002, the American Service Members Protection Act was enacted. The goal of the law is “to protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” Introduced by U.S. Senator Jesse Helms (R-NC) and U.S. Representative Tom DeLay (R-TX) Among other things, Sec. 2004 (22 U.S.C. 7423) precludes any U.S. government entity, court, or state or local agency or court from cooperating with the ICC in response to a request for cooperation submitted by the ICC for a letters rogatory, extradition, and any other support. In addition, no funds appropriated under any provision of law may be used for the purpose of assisting the investigation, arrest, detention, extradition, or prosecution of any United States citizen or permanent resident alien by the ICC.
Sec. 2008 (22 U.S.C. § 7427) authorizes the President of the U.S. to use all means necessary and appropriate to bring about the release of, any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court. The persons described in Sec. 2008(b) are covered U.S. person, any covered allied person (member of a NATO if the NATO country is not a party to the ICC), and individuals detained or imprisoned for official actions taken while the individual was a covered U.S. person or a covered allied person, and in the case of a covered allied person, upon the request of such government.
The act also prohibits U.S. military aid to countries that are party to the court. However, exceptions are allowed for aid to NATO members, major non-NATO allies, Taiwan, and countries that have entered into “Article 98 agreements”, agreeing not to hand over U.S. nationals to the court. The president may waive this prohibition if he determines that to do so is “important to the national interest of the U.S.
The Rome Statute includes Article 98, which states:
“Article 98(2) Cooperation with respect to waiver of immunity and consent to surrender:
The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”
The international agreements mentioned in Article 98(2) of the Rome Statute are referred to by several terms, including Article 98 agreements, bilateral immunity agreements (BIAs),impunity agreements, and bilateral non-surrender agreements. Starting in 2002, the United States began negotiating these agreements with individual countries, and has concluded at least one hundred such agreements. Countries that sign these agreements with the United States agree not to surrender Americans to the jurisdiction of the International Criminal Court. The Coalition for the International Criminal Court lists 100+ agreements in its factsheet on the Status of US Bilateral Immunity Agreements. Bolton promised to extend the number of Article 98 agreements and to ensure compliance of the existing agreement.
Bolton also revealed that right before his speech the State Department ordered the closure of the Palestine Liberation Organization office in Washing, explaining that the PLO “has not taken steps to advance the start of direct and meaningful negotiations with Israel.” The Palestinians have filed complaints against Israel in the ICC. Bolton said “we will not allow the ICC, or any other organization, to constrain Israel’s right to self-defense.” At present the ICC has a preliminary examination on alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.
 Karen DeYoung and Loveday Morris, PLO ordered to close office in U.S., Wash. Post, Sept. 11, 2018, at A1 col. 3.
 John Bolton, Protecting American Constitutionalism and Sovereignty from the International Criminal Court, Sept. 10, 2018 https://www.whitehouse.gov/briefings-statements/protecting-american-constitutionalism-sovereignty-international-criminal-court.
 DeYoung and Morris, supra.
 ASPA, Title 2 of Pub.L. 107–206, H.R. 4775, 116 Stat. 820.
 Coalition for an International Criminal Court, Status of U.S. Bilateral Immunity Agreements (BIAs) http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf.
 DeYoung and Morris, supra.