It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times

One of the communications staff suspended by Kenyan President Uhuru Kenyatta is now threatening to sue the New York Times (Photo: Tiksa Negeri / Reuters)

One of the communications staff suspended by Kenyan President Uhuru Kenyatta is now threatening to sue the New York Times (Photo: Tiksa Negeri / Reuters)

The Kenya – New York Times saga continues. For those of who haven’t had a chance to follow, here’s a recap:

  • The New York Times published a scathing article and critique of the International Criminal Court’s intervention in Kenya (see here for some highlights and my thoughts on the piece). It was particularly critical of the role of former ICC Chief Prosecutor Luis Moreno-Ocampo and the cases against senior members of the Kenyan government — cases which, as readers will know, ultimately all collapsed.
  • The office of Kenyan President Uhuru Kenyatta (who was among those charged by the ICC but eventually had his case dismissed), released a statement in which it claimed that described the New York Times’ article as “vindictive and unprofessional”. It further asserted that the author, James Verini, did not reach out to the government for its side of the story.
  • In response, the New York Times published a statement in the Kenyan media, defending its story, refusing to apologize, and insisting that the government was given every opportunity to contribute to the piece — but declined or ignored requests to do so.
  • While President Kenyatta is on an official visit to Botswana, he “suspended” four members of his communications staff, apparently as a result of their initial response to the New York Times’ piece. Dennis Itumbi, one of the suspended members of Kenyatta’s communications staff, tweeted that they “were fired because they told off a paper that claimed President Uhuru bribed witnesses.”

That brings us to today. Kenyan media is reporting that Itumbi is threatening to sue the New York Times. Itumbi, Kenyatta’s director of digital innovations and diaspora communications, was named in Verini’s account as someone who had been “investigated (though not charged)” by the ICC over alleged witness interference. In its defence of Verini’s exposé, the New York Times insisted that “Itumbi’s investigation by the International Criminal Court is a matter of public record. As Verini’s article notes, he was not charged.” Now, according The Star, Itumbi is seeking legal action against the Times:

Dennis Itumbi has given the New York Times a seven-day ultimatum for an apology over remarks in an article about the President’s ICC case…

…He asked the media house to apologise or face a defamation suit over making references to him in the article, saying he was not interviewed.

In a letter to the media house on Thursday, Itumbi’s lawyers said the “offending words” were false since their client was not interrogated on any subject.

“You did not contact our client to comment on the issue contrary to your assertions. Your publication was therefore malicious and part of your sustained policy and your self-serving vendetta,” said lawyer Moses Chelanga.

Chelanga said the publication was calculated to disparage and injure Itumbi’s reputation and cause him scandal, odium and contempt in his personal capacity.

He said the Times portrayed Itumbi as one who interfered with the ICC witnesses protection programme.

He also said the media house made it seem the former director “exposed ICC witnesses; killed, abducted and enforced disappearance of ICC witnesses; bribed ICC witnesses; interfered with administration of justice; sabotaged the situation of the Republic of Kenya in the ICC [and] is corrupt.”

The lawyer said his client’s reputation and status as a long-standing public servant have been seriously damaged.

“He has suffered considerable distress and embarrassment to himself, his career, his calling, and his family,” said Chelanga.

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As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff

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Kenyan President Uhuru Kenyatta

The controversy between the Kenyan government and the New York Times over a hard-hitting story on the International Criminal Court’s record in Kenya has shown no signs of abating. Late last week, the office of Kenyan President slammed the Times for its piece, questioning the newspaper’s place in the world media, suggesting the piece relied on faulty sources, and claiming its author hadn’t contacted the Kenyan government for their views on the ICC’s intervention in Kenya. Yesterday, the Times stood by James Verini’s article and insisted that the author had relied on good sources and done everything possible to include the Kenyan government’s side of the story. It rightly refused to apologize.

Today, it was revealed that Kenya’s response to the Times article has created sharp divisions within parts of the government. According to local media, Kenyan President Uhuru Kenyatta took the dramatic step of suspending four members of his Presidential Strategic Communications Unit (PSCU). From one report:

Four directors of the Presidential Strategic Communications Unit (PSCU) were on Wednesday suspended from office, over what sources said was “conflicting messaging.”

Those affected are Eric Ng’eno, Munyori Buku, Dennis Itumbi and James Kinyua.

At the heart of the latest spat is a story emanating from the New York Times on the International Criminal Court.

The NY Times gave details of lengthy correspondence with State House on the matter, but a statement ostensibly released by some of the PSCU Directors appeared to question the integrity of the NY Times.

A rebuttal sent out to media on official email appeared to suggest that the NY Times never made attempt to seek comment from State House, yet the newspaper has documented a series of correspondence from officials in the Presidency.

Perhaps this is a case of staff wanted to project an anti-West, anti-ICC, anti-media zeal to impress their boss? Or perhaps there’s some greater aim to this rather bizarre decision. Whatever the case, it’s an embarrassment to Kenya’s presidential office.

Questions remain, including whether Kenyatta ever approved of his own office’s statement on the Times article and, if not, how it ended up being released and published by the Kenyan media. Kenyatta himself is currently in the midst of a three-day visit to Botswana, the most vocal supporter of the ICC among African states.

It remains to be seen if there is any more fall-out from this controversy. If there is, I will continue cover it at JiC.

This story has involved a number of remarkable, controversial, and dramatic turns. For more, see:

A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’
A Comment In Defence of Luis Moreno-Ocampo
Kenya’s President Rips into New York Times Article Largely Favourable to Him
The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story
As New York Times – Kenya Controversy Continues, Kenyatta Suspends Four Staff
It Continues… Kenyatta’s (Suspended) Communications Staff Threatens to Sue New York Times

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The New York Times Shoots Back, Won’t Apologize to Kenyatta for ICC Story

Kenyan President Uhuru Kenyatta (Photo: Kenya Today)

Kenyan President Uhuru Kenyatta (Photo: Kenya Today)

It’s a fascinating story that, for whatever reason, simply won’t go away. Frankly, maybe it shouldn’t. The more this drags on, the more we learn about the International Criminal Court (ICC) and its intervention in Kenya as well as the mindset of Kenya’s political elite and the struggle to accurately cover accountability issues in the country.

To recap, the New York Times published James Verini’s scathing account of the International Criminal Court’s intervention in Kenya, focusing his critique on the stewardship of the Court’s first Prosecutor, Luis Moreno-Ocampo. Here at JiC, I added some thoughts on Verini’s hard-hitting and, in my view, accurate portrayal of Moreno-Ocampo’s tenure and, over at Wronging Rights, Kate Cronin-Furman also shared her impressions. Some, including Wanda Boker, responded in defence of Moreno-Ocampo and addressed structural issues (see also the responses from Kevin Jon Heller of SOAS and Bill Pace of the Coalition for the International Criminal Court). In a bizarre move, the rationale for which was cogently surmised in a comment by Ken Flottman, the office of Kenya’s President Uhuru Kenyatta, ripped into the New York Times for its “steady descent into the murky, rancid morass of gutter press and has abandoned all pretence of journalistic decency in pursuit of the Prosecutor’s agenda.” It also blamed the publication for not contacting the President’s office and relying on what it saw as faulty sources. Today, the Times shot back. Here’s its response to Kenyatta:

In a June 24 statement sent to Kenyan journalists, the communications office of President Uhuru Kenyatta of Kenya took issue with an article by James Verini in the June 26 issue of The New York Times Magazine, appearing in print with the headline ‘Trial and Error’ and published on The New York Times’s website on June 22 as ‘ The Prosecutor and the President ‘.

The article concerns the International Criminal Court’s failed attempt to prosecute Kenyatta on charges related to the violence that followed Kenya’s 2007 presidential election.

In the statement, the office suggested that the author of the article had not contacted Kenyatta’s office for comment. This is untrue.

Verini attempted on numerous occasions over the course of months to solicit comment from Kenyatta’s office through official communications channels.

Verini’s efforts included numerous emails, phone calls and text messages to Kenyatta’s chief and deputy spokesmen and two other aides.

On two occasions, representatives of Kenyatta’s office briefly answered or returned phone calls and suggested the possibility of further response, and on one occasion they scheduled a meeting to discuss the article with Verini, but the meeting was canceled, and responses to emails, phone calls and text messages eventually ceased entirely.

Throughout this process, Kenyatta’s representatives were informed of the subject of the article and did not at any point address it.

A fact-checker for The Times Magazine also emailed Kenyatta’s chief spokesman and received no response.

The statement also took issue with the article’s reference to Dennis Itumbi, the director of digital innovations and diaspora communications in Kenyatta’s office.

Itumbi’s investigation by the International Criminal Court is a matter of public record. As Verini’s article notes, he was not charged.

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Updated: Kenya’s President Rips into New York Times Article Largely Favourable to Him

Uhuru Kenyatta ICC Moreno-Ocampo

Kenyan President Uhuru Kenyatta (Photo: Reuters)

This story gets weirder by the day. Last week, the New York Times published a fascinating article by James Verini exploring the record of former ICC chief Prosecutor Luis Moreno-Ocampo and, specifically, his record in Kenya. It wasn’t pretty. The exposé painted Moreno-Ocampo as being way in over his head, amateurish in his ability to build cases, and pompous. Many of those cited in the piece and offering their criticisms weren’t the former Prosecutor’s foes but those who had worked most closely with him. At JiC, I added my own thoughts and then published an interesting and insightful commentary from Wanda Boker, who worked with Moreno-Ocampo during the first years of the ICC’s existence (make sure read Kevin Jon Heller’s comments on that piece as well). Now the office of Kenyan President Uhuru Kenyatta has jumped into the fray. On Friday, it issued a convoluted attempt to simultaneously slam both the New York Times and Moreno-Ocampo’s record. Here’s a snippet:

The New York Times continues its steady descent into the murky, rancid morass of gutter press and has abandoned all pretence of journalistic decency in pursuit of the Prosecutor’s agenda.

Relying on the fanciful accounts of unreliable individuals, discarding all attempts at balance and fairness, the Times plies a malicious, vindictive and unprofessional article on the ICC cases.

It is advancing the self-serving and deluded notions of Luis Ocampo, a man whose understanding of the Rome Statute is slippery, and whose appreciation of the legal mandate of the ICC and the Office of the Prosecutor is subordinate to a strong penchant for the extraneous.

Ocampo’s delusions are fortified by an appeal to believe the accounts of one of Africa’s most vicious, murderous and terrifying organised criminal syndicates against a demonstrably upstanding leader of integrity.

Thus we have New York Times canvassing the exclusive point of view of a menagerie wholly unsuited to the purposes of truth, justice and accountability, and essentially suppressing a credible side vindicated by due process and entirely blameless.

You can read the rest of the statement here. It’s an awkward, verbose, mouthful of a statement, made weirder for the fact that it was written by an anonymous bureaucrat and not in the name of Kenyatta himself. Continue reading

Posted in Kenya, Kenya and the ICC | Tagged , | 4 Comments

A Comment In Defence of Luis Moreno-Ocampo

Luis Moreno-Ocampo (Photo: Jerry Lampen / Reuters)

Luis Moreno-Ocampo (Photo: Jerry Lampen / Reuters)

One of the most rewarding aspects of writing in the public domain is the feedback and commentary it generates — even, perhaps especially, when it’s critical. In response to my earlier post on former chief Prosecutor Luis Moreno-Ocampo’s record at the International Criminal Court (ICC), a few commentators have replied that there is far more that needs to be included for any accurate judgement to be made of the first decade of the Court’s existence than Moreno-Ocampo’s role alone.

Errol Mendes, a professor of law at the University of Ottawa, for example, commented that “while I agree with much of what you say, the failures of the ICC [are] also due to lack of co-op[eration] by states, UN etc.” I completely agree and should have clarified that the original post was not intended to produce an authoritative account of all of the reasons that explain the troubles the ICC faced in its first decade, but rather to assess one part of that record: the role and responsibility of the chief Prosecutor. There are no doubt structural constraints and limitations that the ICC confronts — and JiC posts raise them regularly, certainly far more often than commentary on Moreno-Ocampo — but the ICC is the type of institution that is deeply affected by the personalities at its helm. Moreno-Ocampo’s tenure is a case in point.

The initial blog post also generated an important and insightful comment from Wanda Boker, who worked as Moreno-Ocampo’s outreach advisor at the ICC from 2003-2004, in defence of Moreno-Ocampo’s tenure. Like Mendes, Boker is absolutely correct in her argument that any authoritative account of the failings (and, I would add, successes) of the ICC must look beyond attempts to discredit Moreno-Ocampo. Her comment deals with the alleged failures of ICC investigators and other staff to understand the situations they were working as well as the wider context in which the Court functions. Boker’s response is important and should be highlighted. So here it is, in full and without edit:

I worked for Prosecutor Moreno-Ocampo as his outreach advisor from 2003-2004 and later founded Interactive Radio for Justice, an outreach project which operated where the OTP investigated between 2005-2011. I agree completely with Paul Seils when he says “I’m not at all sure that international courts really are set up to understand the realities of the conditions they’re investigating,” but you are mistaken when you put the blame for that squarely on the shoulders of Moreno-Ocampo. What I saw consistently over the years I worked in and with the OTP is that investigators, prosecutors, colleagues in the registrar…tried do to their assigned work as they would have in their home country environment, without understanding just how much they needed to change in order to be effective working at the ICC, particularly in regions where the Court investigates. I can’t speak for Kenya because I didn’t work there, but in DRC (Ituri and Kivus) and RCA and Uganda, ICC teams would try to work while maintaining complete isolation from the local communities. The reason why cases were weak was because investigators relied too heavily on local informants because they didn’t go into neighborhoods, IDP camps, demobilization camps etc. themselves to understand where they were and who they were dealing with. If you don’t work in the community, don’t socialize and live there and build trusting relationships there, but only pay someone to bring you people to speak with from ethnic group Z…..how in the world do you know if you’re really talking with people from ethnic group Z, and not from group Y? That’s not Moreno-Ocampo’s fault. It took five years of him insisting, to finally be allowed (because of security concerns)to visit Ituri and speak directly with an unrestricted (meaning anyone interested in coming to the meeting could come) public meeting which we organized and broadcast over community radio stations. The chief defense lawyer for the Lubanga case was also invited to the meeting and she fielded questions as well, it was clear that she knew the terrain, because she could do her job with minimal restrictions, much better than the entire OTP contingent combined. I knew when ICC teams were in town, from any branch of the Court (save for the defense teams), because they were only allowed to eat in two places in town, only allowed to drive on a couple of main roads and spent their days in an air conditioned office within the guarded MONUC (later MONUSCO) compound. Their outreach teams would visit our radio partners to ask if they could speak with our focus groups because they didn’t have the local contacts to develop their own. I write this because it seems too easy to critique the ICC by targeting a personality who made people uncomfortable – Moreno Ocampo was not the reliable conventional prosecutor true, but it’s incorrect to blame all of the weaknesses of the ICC on him because he didn’t play by the same rules that a Chief Prosecutor would play in Canada, for example. He couldn’t play by the same rules at the ICC and he was the first in his position, he was exploring ways to approach his challenge to end impunity globally for the crimes under the Courts’ jurisdiction with no guidelines that seemed sufficient. His ideas about networks and creating cultures of deterrence were well worth trying, and the failures weren’t necessarily failures because they were bad ideas, there were a lot of structural and personality driven obstruction which had nothing to do with Moreno-Ocampo, that all but guaranteed failure in many situations.. It didn’t help matters at all to have lawyers and investigators saying “but I wasn’t expected to do that in the UK (Belgium, Canada, etc) and I don’t want to try it here” or the Registrar or the UN saying “you can not investigate without an entourage of vehicles, without notifying all UN , local military and local police beforehand”…..My point is if you’re going to write a frank report on the failings of the Court you really do need to look beyond your thinly veiled eagerness to discredit Moreno-Ocampo.

Posted in International Criminal Court (ICC), International Criminal Justice, Luis Moreno-Ocampo | 4 Comments

A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’

(Photo: Jerry Lampen / Reuters)

(Photo: Jerry Lampen / Reuters)

In the world of international justice, it’s often said that states and societies must confront the past in order to move forward. But the same is true of the International Criminal Court (ICC): the institution needs to learn from its (very) shaky first decade. During that time, the ICC was put on the map, became an entrenched feature of global politics, and altered the way we think about the appropriate responses to mass atrocities and collective political violence. None of those achievements should be underestimated. But a string of controversies and unnecessary failures always seemed to follow the ICC. Trials narrowly avoided being thrown out by judges. Staff were wrongfully dismissed. Cases collapsed under weak evidence. The Court demonstrated a bias towards both major Western powers as well as despots.

Many observers and insiders believe that one person is chiefly responsible for these failures and near-misses: the Court’s first Prosecutor, Luis Moreno-Ocampo. This is also the message of a hard-hitting feature New York Times special report by James Verini into the ICC’s foray into Kenya, an intervention spearheaded by Moreno-Ocampo but whose goal of accountability for the 2007/08 post-election violence was ultimately shattered by a fatal combination of institutional ineptitude and political interference in the cases. These failures are lessons that the ICC has, and must continue, to learn from. Every indication suggests that it is doing so.

I highly encourage all readers to check out Verini’s account as well as Kate Cronin-Furman’s brilliant, funny, and insightful ‘live-blogging’ of the article. Verini’s piece should be read in full, but I thought it was worth posting a few highlights and some thoughts (in bold).

Alex Whiting, a onetime federal prosecutor in Boston who became Moreno-Ocampo’s prosecutions coordinator, told me the Kenyatta case “was like trying to prosecute an organized-crime case without the tools the Department of Justice uses to prosecute organized crime” — though, for this reason, Moreno-Ocampo’s temperament was an asset. “You have to have a big ego, because you don’t have much else.”

But Moreno-Ocampo himself may have been the greatest obstacle to the court’s success, members of his staff told me. They didn’t question his devotion — he often worked seven days a week, closely managing every case — but increasingly they questioned his judgment, which seemed always caught between that ego and his idealism. He inspired fierce admiration and dislike, sometimes in the same people.

There are different types of prosecutors and Moreno-Ocampo appears to have been a charasmatic but controlling leader who put his views and himself at the forefront of the Court’s work. In UN terms, he was more of a general than a secretary. While doing research in northern Uganda, I recall being told that many of the victims and survivors of violence by the Lord’s Resistance Army (LRA), initially believed that Moreno-Ocampo was called “ICC”. This blurb also reminded me of comments by Jean Ping when he was African Union Commission chairperson: “we are not against the International Criminal Court. What we are against is Ocampo’s justice — the justice of a man.” Many who initially dismissed Ping’s comments as cynical then, certainly wouldn’t do so now.

And while it was true that the court’s small budget limited the size of his investigations, he was, some say, already more interested in prominence than evidence. A former court attorney told me: “He would see the leader of a state and say: ‘There must be evidence out there. Go get it for me.’ ”

The investigation in Congo began calamitously. Bernard Lavigne, formerly a French domestic prosecutor, became Moreno-Ocampo’s first lead investigator in Congo. “We accumulated a lot of information about one militia,” Lavigne told me. “Then suddenly, because of a political decision by Luis or his political committee, we were obliged to change our planning and our investigative work and concentrate on a new target. It was completely crazy. … We put in danger a lot of people.” The case Moreno-Ocampo brought against Lubanga, for recruiting child soldiers, “barely scratched the surface of the conflict,” Paul Seils, the first director of Moreno-Ocampo’s preliminary-examination unit, says. Moreno-Ocam­po removed the lead attorney weeks before the trial commenced and clashed with the presiding justice, who accused him of trying to undermine the judiciary and pervert the Rome Statute.

It is exceedingly rare to find such forthright commentary about the ICC from former staff in the public. But this chimes with what I have heard for years now. Despite the best efforts of investigators (many of whom eventually resigned), the ICC built poor cases, cases that were so weak that they were virtually bound to fail unless someone delivered the prosecution a Hail Mary. Sometimes it worked (Lubanga, Bemba), and sometimes it didn’t (every Kenya case relating to the post-election violence). In many ways, it seems that under Moreno-Ocampo, the ICC forgot that it was actually a court (purposely perhaps — see final comments below) and, instead, saw itself as a kind of justice-y public relations pulpit. Reading these quotes always makes me wonder what would happen if Sudanese President Omar al-Bashir actually turned up at The Hague to face genocide charges. How strong (or weak) is that case?

It’s really important to highlight and stress, as the piece does implicitly, that the views and well-formed opinions of ICC investigators were overridden by Moreno-Ocampo. In a similar vein, you would have to think that when the former Chief Prosecutor met with Ugandan President Yoweri Moseveni to announce a referral of the LRA to the ICC, he must have been told it would show a bias towards Uganda. He did it anyways. The crucial lesson here is that the poor investigations and poor decisions made in the Office of the Prosecutor were not growing pains or mistakes. They were calculated decisions by Moreno-Ocampo himself, often against the advice of those working closely with him.

The good news is that, under new Prosecutor Fatou Bensouda, the ICC seems to have learned its lessons and now ensures that cases are as trial ready as possible when arrest warrants are initially requested. We are starting to see the fruits of this much more patient and much less cavalier strategy. Continue reading

Posted in International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC, Luis Moreno-Ocampo | 3 Comments

John Bolton says Hillary Clinton Would Join the ICC. Is He Right?

Hillary Clinton (Photo: Jim Young / Reuters)

Hillary Clinton (Photo: Jim Young / Reuters)

In a way, it’s kind of sad. You would think, after all of these years, that former US diplomat John Bolton would get over his almost paranoid fear of the International Criminal Court (ICC). Bolton, who served under George W. Bush and was an architect of that administration’s vitriolic, anti-ICC policies, has always had an overly sized chip on his shoulder when it comes to the Court. He proudly speaks of the day he deposited a notice at the United Nations declaring that Washington was ‘unsigning’ the Rome Statute of the International Criminal Court. For Bolton, the ICC is some sort of undemocratic boogie-man set out to wreak havoc upon US interests and stampede on the sovereign integrity of states. Irony and evidence apparently don’t have much of an effect on Bolton. If they did, he would recognize that his claims present the ICC as having much more power and effect than the institution actually has.

When given the opportunity, Bolton has continued his rambunctious tirades against the ICC. At a recent conference in Tel Aviv, Israel, Bolton derided the ICC and warned that, if Hillary Clinton managed to become the next President of the United States, she would do the unthinkable: (re)sign the Rome Statute and join the ICC. This seems extremely unlikely. But before delving into why, here’s a report of Bolton’s comments:

Turning to the ICC, Bolton called on democratic nations not to engage with the court, branding it unaccountable, illegitimate, impotent and biased.

“We must not cooperate with the ICC – that gives them legitimacy,” he said. “The ICC is an illusion. A bunch of people in black robes will never be able to stop the brutal dictators who carry out mass murders.”

“No one elected them, there are no checks and balances. It is in practice an ad hoc tribunal to attack African leaders,” he continued, adding that his “happiest moment” in service of the US government was the day he removed America’s signature from the Rome Statute.

“Fortunately, Obama didn’t resign until now, as he knows he won’t have a majority in the Senate in favor,” Bolton stated.

But “if Clinton is elected, she will rejoin Americans to the ICC and resign the Rome Statute,” he warned.

There’s a lot to digest here. But let’s put aside a few things, so we can get to the meat of the matter: whether Clinton would have the US join the ICC. Let’s put aside that Bolton’s comments were to a conference organized by a controversial NGO that has sued the organizers of the Gaza Flotilla and which has pushed the ICC investigate and prosecute the Palestinian Authority. Let’s put aside the fact that the US under Obama has a ‘policy’ of “positive engagement” with the ICC. Let’s put aside that Bolton was America’s UN Ambassador at a time when the US was engaged in a systematic policy of torturing enemy combatants (crimes which are being examined by the ICC). Let’s put aside that ICC judges are in fact elected — by member-states of the Court. And let’s put aside the reality that the ICC does have checks and balances, namely via the principle of complementarity which ensures that the ICC can only prosecute international crimes if and when the relevant state refuses to do so or won’t do so genuinely. The ICC isn’t perfect, but it’s not the rampaging monster Bolton has concocted.

But would Clinton ever push for the US to join the ICC? For two reasons, it seems extremely unlikely: first, her record on the ICC is mixed, at best; and second, there’s little-to-no appetite in the US to do so. Continue reading

Posted in International Criminal Court (ICC), International Criminal Justice, Torture, United States | Tagged , | 2 Comments