The International Criminal Court’s headquarters in The Hague, Netherlands, seen in April 2019. US Secretary of State Marco Rubio recently announced his intent to dismantle the ICC, citing its perceived biases and its threat to US national sovereignty. (Shutterstock/Friemann)

Why America Should Keep the ICC Intact

Share this link on Facebook

Share this page on X (Twitter)

Share this link on LinkedIn

Share this page on Reddit

Email a link to this page

The International Criminal Court has its problems, but America’s recent attempts to destroy it—rather than merely protecting Americans from its reach—are a profound diplomatic misstep.

In mid-July, Secretary of State Marco Rubio announced his intention in The Wall Street Journal to “dismantle” the International Criminal Court (ICC) “brick by brick.” The secretary justified the campaign against the ICC by citing its potential to override US law, writing, “America never agreed to a world tribunal that can override our own courts and the Constitution.” He framed the move as a campaign against globalism, to restore sovereignty to the United States and its allies.

Rubio’s broadside against the ICC marked an escalation in America’s tense relationship with the ICC, but the secretary’s position was not entirely new. American ambivalence toward the court is a decades-old sentiment. The United States is not a party to the 1998 Rome Statute establishing the ICC, meaning it has no jurisdiction over the United States. In 2002, to underscore the point, Congress passed the American Service-Members’ Protection Act—derisively nicknamed the “Hague Invasion Act”—authorizing the president to use military force to rescue any servicemember on trial at the ICC and cutting off military aid to states that joined it.

Rubio’s hostility to the ICC falls well within this history. What has changed with this administration is the goal: where previous administrations sought merely to insulate the United States from the ICC’s reach, the Trump administration is openly attempting to destroy the institution altogether. The distinction matters, and it is worth examining both the legal foundation Rubio is attacking and the strategic cost of succeeding.

The ICC Anchors an American-Built Framework  

The ICC’s legal architecture has its roots in institutions the United States built after the end of World War II. The Nuremberg and Tokyo tribunals of 1945-46 were led substantially by American prosecutor and Supreme Court Justice Robert Jackson. At those trials, Jackson and his contemporaries established that individuals, not just abstract states, bear criminal responsibility for atrocities—foreclosing the “just following orders” defense regardless of rank. The UN General Assembly began to codify these principles in 1948, and the International Law Commission continued that work for decades—culminating in the Rome Statute, which is currently ratified by 125 countries. Unlike Nuremberg, which the victorious powers imposed on defeated states without their consent, the Rome Statute operates by treaty, with member states joining voluntarily through their own ratification. That distinction cuts against, not for, the sovereignty complaint. The ICC is a consensual institution, not a coercive one; nations that decide they prefer to remain outside it, including the United States and Israel, are free to do so.

The United States never fully committed to the institution it had midwifed. President Bill Clinton signed the Rome Statute in December 2000, but declined to submit it to the Senate for ratification, citing unresolved concerns—effectively making America’s absence from the ICC a foregone conclusion. The George W. Bush administration went even further, “unsigning” the treaty in 2002 and........

© The National Interest