In September 2018, National Security Advisor John Bolton threatened the International Criminal Court with retaliatory action like sanctions if the court took any actions against the U.S. Bolton labeled the court “illegitimate” and in a sense, Bolton is correct — in the eyes of the United States, the ICC is illegitimate. In 2002, it was Bolton himself, then Under Secretary of State for Arms Control and International Security, who announced that the Bush administration would oppose the ratification of the Rome Statute — the official United Nations statute establishing the ICC — in the Senate, despite the U.S. signing the statute in 2000 in the waning days of the Clinton administration. This about-face is just one in the series of the U.S.’s changing positions on the international tribunal.

Since the end of the Second World War, the U.S. has participated in several international tribunals to hold military leaders accountable — beginning with the Nuremberg Trials. These trials served as a way to hold Nazi military officials accountable for crimes against peace, crimes against humanity, and war crimes. Through these trials, a key principle of international law was established — “following orders” was no longer a defense to criminal actions. In terms of U.S. involvement with international tribunals, the Nuremberg Trials exemplify the peak of U.S. participation. The U.S. was one of the four parties, alongside the Soviet Union, United Kingdom, and France, to sign the London Agreement of 8 August 1945 establishing the Nuremberg Tribunal. The chief prosecutor at the trials was Robert Jackson, then an associate justice of the U.S. Supreme Court. Suffice it to say that the U.S. was supportive of international tribunals in the case of Nuremberg.

U.S. support for international tribunals continued into the 1990s with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993. This tribunal indicted individuals for genocide, crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Convention. Ultimately it led to the conviction of 90 individuals. This tribunal, established by the UN Security Council, was strongly supported by the U.S., which assisted in writing the establishing statute and furnishing resources for its operations. A year later, a similar course of events played out in the establishment of the International Criminal Tribunal for Rwanda. This too was established by the UNSC and supported by the U.S. Not only did this tribunal lead to the conviction of 62 individuals, it delivered first-time verdicts on genocide and defined rape in international law.

The logical next step from these temporary tribunals was the creation of a permanent tribunal to handle these sorts of crimes. These talks culminated in 1998 at the Rome Conference, where a statute was written to create the ICC. In a statement the Department of State expressed President Clinton’s and Secretary of State Madeleine Albright’s support for the establishment of a “fair and effective Court” that will “promote justice and deter those who would commit genocide, war crimes, and crimes against humanity.” Despite this verbal support, on 17 July 1998, the U.S. was one of seven countries voting against the ICC’s creation, with 120 votes for.

This reversal in policy is a result of several factors. First, Jesse Helms (R-N.C.), then chairman of the Senate Foreign Relations Committee, publicly announced his opposition. His position as chairman of the relevant committee gave him outsized influence on the treaty’s ratification. His opposition was rooted in the idea that the UN was not a sovereign entity, meaning that it should not be given jurisdiction over other countries. Related, there was tension between the U.S. and countries who felt the U.S. should not be exempt from the jurisdiction of the court. The U.S. feared that, given the nation’s frequent foreign intervention, U.S. personnel would be more vulnerable than those of any other country.

Further solidifying U.S. resistance against the ICC was the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act. This authorizing statute explicitly prohibited U.S. financial support for the ICC and prohibited extradition of American citizens to countries who may turn them over to the ICC. Despite this statute and the Senate’s refusal to ratify for the Rome Statute, the U.S. continued to assist in writing the Rules of Procedure for the ICC and in 2000, President Clinton signed the Rome Statute.

By 2002, under the Bush administration, the U.S. formally announced it had no intention to ratify the Rome Statute. In the words of John Bolton, “the United States does not intend to become a party to the treaty,” and that, “accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.” In an even stronger show of objection, Congress passed the American Service-Members’ Protection Act, which authorized the use of military force to free any American held by the ICC. Some commentators referred to the measure as the “Hague Invasion Act” in reference to the ICC’s location.

Under the Obama administration, the U.S.’s attitude toward the ICC warmed slightly. The U.S. helped turn several military officials over to the ICC and authorized funds to offer reward money for fugitives sought by the ICC. This thaw has not carried over into the Trump administration — one of the ICC’s top critics, John Bolton, is back in the federal government and fighting as hard as ever against the ICC. Recently, speaking to the Federalist Society, Bolton said the U.S. would use “any means necessary” to protect Americans and allies from “unjust prosecution by this illegitimate court.”

While John Bolton’s comments may be new, the basis of his criticism is not. As was the case when the fight not to ratify the Rome Statute first occurred, his concerns are based on the worry that the ICC will come after American personnel. This time his comments are centered around two issues. First, judges at the ICC are deliberating about a possible investigation into U.S. actions in Afghanistan. If this is pursued, it could lead to an attempt to prosecute American servicemen. Additionally, the Palestinian Authority has been pushing the court to expedite its inquiry into Israeli actions in Palestinian territory, drawing the Bolton’s ire.

According to The Guardian, Bolton has mentioned “banning ICC judges and prosecutors from entering the US, imposing sanctions on any funds they had in the States, and prosecuting them in the American court system” as possible retaliatory measures against the international court. A more drastic option remains available under the ‘Hague invasion’ clause of the aforementioned American Servicemembers’ Protection Act if any Americans are held by the ICC. For its part, the ICC has maintained that it will continue its mission — “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.”