Going it alone? The ICC and the future of US multilateralism

In a recent speech to a conservative group in Washington, US National Security Advisor John Bolton launched a scathing attack on the International Criminal Court (ICC), claiming that the court “is already dead to us” and that Washington would push back against a 2017 request to begin investigating US military and intelligence officials over alleged war crimes in Afghanistan.

Bolton has been critical of the ICC in the past, often citing its “unacceptable consequences for our national security”. In 2002, when serving as Undersecretary of State for President Bush, Bolton was instrumental in refusing to ratify the ICC’s founding document despite being signed under Bush’s predecessor, Bill Clinton. He subsequently helped to implement numerous bilateral agreements preventing US citizens from being handed over to the ICC in the case of war crimes.

MULTILATERALISM A LA CARTE

The ICC saga is not the first time that the US has been critical of international institutions. Earlier this year Washington announced it would leave the UN’s Human Rights Council mid-way through its tenure, while in 2017 it departed UNESCO in solidarity with Israel. It has yet to ratify key international treaties such as the Comprehensive Nuclear Test Ban Treaty, the UN Convention on the Law of the Sea, and the Convention on Biological Diversity and has departed others such as the Anti-Ballistic Missile Treaty, the Paris Agreement and the Iran nuclear deal.

While Washington was instrumental in constructing the post-war international order, unilateralism in US foreign policy is nothing new. Unilateralism has remained an undercurrent of US foreign policy since the early 19th and 20th centuries; the Monroe Doctrine and early US policies were based heavily in unilateralism and the projection of US power. Even today, despite the deeply interconnected nature of markets and prevalence of global governance, the US has erred on the side of unilateralism. Washington has opted to follow what it refers to as “multilateralism à la carte” or flexible multilateralism, picking and choosing what agreements and international organisations it will ratify on an individual basis. Those which may limit US actions — such as the ICC — are rejected, while those that limit the actions of others tend to be supported.

US VERSUS THE WORLD

While the US often sees multilateralism as crucial to international peace and security, it also places a large amount of importance on national security. The latter has often taken priority, especially post-9/11. This has been most evident under Republican administrations, which have been more hostile towards multilateralism than Democratic ones; powerful conservative political factions and hawkish advisors have dictated many aspects of foreign policy. President Trump has taken a hard-line unilateral approach in his foreign policy, differing from previous Republican administrations who have still engaged in the multilateral system despite some reservations. By adopting an ‘America First’ policy, the current administration has opted to focus on economic nationalism and military expansion while abandoning multilateral institutions and questioning their legitimacy. Concerns about US unilateralism abroad tend to be met with indifference in Washington, with pragmatism and national interest placed at the centre of decision making.

Other factors have also influenced US attitudes towards international organisations, such as the Israeli-Palestinian conflict and Republican administrations’ steadfast support for Israel. In his speech, Bolton criticised moves by the “so-called state of Palestine” to take Israel to the ICC for human rights abuses against Palestinians in Gaza and the West Bank. Just days prior, the Palestinian Liberation Organisation’s office in Washington — the Palestinian Territory’s de-facto embassy — was closed, in line with US policies to restrict Palestinian activities if they brought Israel to the ICC. Other recent criticisms and departures from international organisations, including from the UN Human Rights Council and UNESCO, were also justified by perceived institutional anti-Israel biases.

THE FUTURE OF US MULTILATERALISM

Bolton’s criticism comes at a difficult time for the ICC, with a number of nations considering withdrawing from the court. In 2017 Burundi became the first nation to leave the ICC in its 15-year history, and other nations including Kenya, the Philippines and Uganda have also considered leaving. The ICC has long suffered from criticisms from Africa of being neo-colonialist and ignoring atrocities committed elsewhere in the world. Africa has been the focus of the ICC’s indictments: nine of its first ten investigations were located somewhere in the continent and all 32 individuals indicted so far are from African nations. In response, the African Union (AU) urged its members to withdraw en masse from the ICC in 2017.

Bolton’s comments may only serve to compound criticism of the court and generate even more discontent in member states, especially in Africa, which could hamper efforts to investigate and prosecute war crimes and genocide. The ICC has already encountered problems indicting Sudanese President Omar al-Bashir for war crimes, genocide and crimes against humanity committed in the Darfur region.

While Africa has been the centre of most of the ICC’s investigations, several African nations remain supportive of the court. Nigeria and Senegal opposed the AU’s 2017 resolution, while both South Africa and the Gambia have backtracked on plans to leave the ICC. Zambia also reversed its proposal to withdraw after public consultations found over 90% of respondents wanted the country to remain in the ICC. The ICC itself is beginning to also move away from investigations solely in Africa, with crimes in Israel, Afghanistan, Myanmar, Venezuela and the breakaway region of South Ossetia in Georgia recently being brought to the ICC’s attention. Bolton’s comments may highlight criticisms of the court, but with solid international support and departure from its Africa-centrism, they may only serve to damage Washington’s own reputation as a multilateral partner.

Washington’s aggressive return to “multilateralism à la carte” — as epitomised by Bolton’s comments — and the pursuit of an America First policy threatens to undermine its relationships with allies and partners, which could have significant ramifications as the international order evolves to accommodate the rise of other actors. As the primary contributor to the creation of the existing international order, the US has remained an important player in international institutions. Given that the ICC and other institutions have broad international support, President Trump’s continued sidelining of allies and disdain for existing multilateral arrangements may jeopardise its position as the maintainer of this order, giving other states and entities like China or the EU the opportunity to fill the vacuum.

Bolton’s criticisms of the ICC and multilateralism could also serve to strengthen support for the ICC and international law, forcing the US to become even more of a recluse in international organisations and leaving its complaints to fall on deaf ears. However, as it does not appear the Trump administration will abandon its hawkish unilateral policies, Washington’s increasing isolation and ongoing criticisms of international organisations appear all but inevitable.