Did John Bolton Create the ICC?

Recent reports from Kenya paint a confusing picture on the government’s willingness to cooperate with the International Criminal Court’s probe into the 2008 election violence. Coupled with Kenya’s decision to host Sudanese president (and ICC indictee) Omar al-Bashir, these moves raise the possibility that cooperation between the government and the court could break down altogether.

Kenya’s on-again, off-again support for the ICC process is part of a broader trend of African officialdom having apparent second thoughts about joining the court. Prominent African leaders and commentators have made increasingly angry objections to the court’s exclusive focus on African conflicts. The African Union officially supports suspending the case against Bashir.

All of which begs the question: What exactly did African states expect when the ICC was being debated? And why did so many of them — more than thirty — join the court in the first place? A number of these states that signed on the dotted line had experienced recent internal violence or were vulnerable to it — and thus would be very plausible targets for ICC investigations and prosecutions. Two leading political scientists recently offered one possible explanation for the puzzle (discussed here) — in essence, they claim that governments facing internal violence sought to use ICC membership as a way of advancing fragile peace processes.

But it’s occurred to me that there could be another contributing factor: early and vocal U.S. opposition to the court. The principal dynamic during the negotiation of the Rome Statute was U.S. anxiety about the danger the court posed. These were most eloquently and insistently voiced by John Bolton and a handful of other influential national security conservatives. Their warnings reverberated around Washington and helped shape the conversation on Capitol Hill, where support for the court turned out to be almost non-existent. Listening to the U.S. debate, one would have thought that the ICC was a dagger directed at the superpower’s heart.

Surrounded as they were by alarmist rhetoric from the superpower, many smaller and weaker states may actually have come to believe that the new court was going to target major powers as often as it would focus on weak and failing states. They may have convinced themselves that unlike so many international organizations, this new court would treat big and small, powerful and weak countries alike. And if that’s true, should John Bolton get just a little bit of credit for launching the court he despises?

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