Responding to a firebrand speech by the US national security adviser, John Bolton, the United Nations-backed court said it would not be intimidated or dissuaded from its global mission.
Bolton’s attack, delivered in Washington on Monday, opens a fresh front in the war between the doctrine of American exceptionalism and the UN-supported, international legal order.
If the ICC proceeds with launching an investigation into alleged war crimes committed by US military and intelligence staff during the war in Afghanistan or pursues any investigation into Israel or other US allies, Bolton warned, the US would impose sanctions against the court and, where possible, prosecute its officials.
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In a short statement, the ICC said: “The court was established and constituted under the Rome statute, the court’s founding treaty – to which 123 countries from all regions of the world are party and have pledged their support through ratification – as an instrument to ensure accountability for crimes that shock the conscience of humanity. The court is an independent and impartial judicial institution.
“The court’s jurisdiction is subject to the primary jurisdiction of states themselves to investigate and prosecute allegations of those crimes and bring justice to the affected communities. It is only when the states concerned fail to do so at all or genuinely that the ICC will exercise jurisdiction.
“The ICC, as a court of law, will continue to do its work undeterred, in accordance with those principles and the overarching idea of the rule of law.”
Bolton’s address alarmed many legal experts. Mark Ellis, the executive director of the London-based International Bar Association, said: “The extraordinary attack launched by … Bolton against the ICC is not only in direct contradiction to the principle of accountability for war crimes, but reinforces the Trump administration’s repugnant policy of exceptionalism, where it demands adherence to international law by all countries, except itself.
“Bolton’s added bellicose language that ICC judges and prosecutors face possible prosecution in the US is a distressing extension of the Trump administration’s attack on the judiciary – both domestic and now international.
“The ICC was created for the noble purpose of ending impunity for perpetrators of the most heinous crimes, including genocide, war crimes and crimes against humanity, when nations are unwilling or unable to prosecute.”
Jamil Dakwar, the director of the American Civil Liberties Union’s human rights programme, said: “The Trump administration’s threat to criminally prosecute and sanction international criminal court judges and prosecutors is straight out of an authoritarian playbook.
“The unprecedented threat comes as US officials face, for the first time, the spectre of full criminal investigation by the court for possible war crimes and crimes against humanity in Afghanistan, which is an ICC member. This misguided and harmful policy will only further isolate the United States from its closest allies and give solace to war criminals and authoritarian regimes seeking to evade international accountability.”
The head of Afghanistan’s human right’s commission, Sima Samar, said that establishing the truth about war crimes allegations in her country was important. “It’s very unfortunate because delivering justice to victims will help to facilitate the peace process in Afghanistan,” she said. “Justice is not a luxury. It is a basic human right.”
The Palestinian Authority said it would not abandon its principles after the US decision to close the Palestinian Liberation Organization’s (PLO) office in Washington in retaliation for it calling for an ICC investigation into Israel’s alleged war crimes.
Nabil Abu Rudeina, the spokesman for the Palestinian president, Mahmoud Abbas, said the authority would maintain its commitment to the resolutions of international legitimacy.
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