The ICC Has Real Flaws. Dismantling It Without an Alternative Is Not the Answer.

From 2005 to 2009, Bellinger was the legal adviser for the U.S. Department of State under Secretary of State Condoleezza Rice, during which time he was extensively engaged in U.S. policies involving the International Criminal Court (ICC).

U.S. Secretary of State Marco Rubio’s July 13 op-ed in the Wall Street Journal announcing a “diplomatic campaign” to “dismantle” the ICC “brick by brick” is perplexing on many levels. Although the ICC is a seriously (and possibly irreconcilably) flawed institution that has not lived up to its original lofty purposes, it is unfortunate that the secretary declared an all-out war on the court without proposing an alternative mechanism for ensuring accountability for international crimes, such as those committed by Russia in Ukraine. Despite long-standing U.S. misgivings about the ICC, Republican and Democratic administrations—and Republicans and Democrats in Congress, including the late Senator Lindsey Graham—have still supported the work of the ICC, as well as U.S. assistance to the court, to investigate genocide and grave war crimes that would otherwise go unaddressed.

To start, the timing of the secretary’s op-ed and diplomatic campaign is puzzling. The ICC has not announced any new actions against the United States, nor has it taken any overt actions against the United States in more than six years. The court is not “now” claiming any new powers to investigate or prosecute Americans, as the secretary’s op-ed asserts.

In 2020, then-prosecutor of the ICC, Fatou Bensouda, received authorization from a group of ICC judges to investigate U.S. personnel for potential war crimes in Afghanistan. But her successor as prosecutor announced in 2021 that he was “deprioritizing” the investigation of the United States and would instead focus on war crimes committed by the Taliban. The ICC has taken no public actions involving the United States since that time. It’s true, of course, that critics of U.S. actions (including the critics that Rubio cites) have urged the court to investigate the U.S. for alleged offenses, but there is no indication that the court is doing so. In short, it’s not clear why the ICC poses a new and “intolerable threat to U.S. sovereignty,” as the State Department press release accompanying the secretary’s op-ed claims.

Indeed, the court does not have jurisdiction over most of the U.S. personnel the secretary claims are at risk. Because the United States is not a party to the Rome Statute (the treaty that created the ICC), the Court does not have general jurisdiction for covered offenses (genocide, war crimes, and crimes against humanity) allegedly committed by U.S. persons; it only claims jurisdiction over U.S. personnel for offenses committed in the territory of countries that are parties to the ICC. 

Contrary to the secretary’s assertion, the ICC does not have jurisdiction and has never claimed jurisdiction over U.S. “Border Patrol agents,” “police officers,” or “federal prosecutors” for actions taken inside (or outside) the United States. If the secretary is concerned about the potential exercise of jurisdiction by the ICC over U.S. soldiers for military actions in other countries, which is a long-standing and legitimate U.S. concern, it is not clear what U.S. actions the secretary is concerned about. Iran, for example, is not a member of the ICC and the ICC does not have jurisdiction over U.S. military actions in Iran. Nor would the ICC have jurisdiction over U.S. strikes against narcotraffickers on the high seas in the Caribbean.

The threat posed by the ICC is also an odd subject for the secretary of state to have chosen to focus on now, given other, more urgent national security challenges. A thoughtful op-ed discussing U.S. policy to end the war with Iran or the Russia-Ukraine war would have been welcome and more timely.

It’s similarly puzzling why the Trump administration has decided to announce a scorched-earth assault —pledging to use “all the tools at our government’s disposal, working beside every ally with whom we can make common cause”—to “dismantle the ICC.”  The State Department press release expands on the secretary’s op-ed to explain that the U.S. diplomatic campaign “will feature a wide range of actions intended to ensure that the International Criminal Court is incapable of threatening U.S. sovereignty or targeting Americans,” including calls to foreign nations to highlight the abuses of the ICC and “increased scrutiny of nations that refuse to reject the ICC’s false authority while relying on U.S. assistance.” All of this rhetoric makes the ICC sound like an urgent and existential threat to the United States, which it is not. 

The op-ed goes further to take aim at “international law” more generally. Some conservatives have long expressed hostility toward international law, but this attack is still surprising coming from the United States’ top diplomat, especially a former senator who voted for numerous treaties while a member of the Senate Foreign Relations Committee. Given the inflammatory rhetoric, it is hard not to see the secretary’s op-ed primarily as a political message intended for a domestic audience.

From Clinton to Trump: a complicated relationship

The United States has had a mixed relationship with the ICC, both in theory and in practice. In the late 1990s, the Clinton administration participated in international efforts to create an International Criminal Court, based in part on the post-World War II Nuremberg Trials, but the United States ultimately voted against the final treaty (the Rome Statute) because it did not contain sufficient safeguards to protect U.S. military personnel from politicized prosecutions. President Clinton ultimately authorized U.S. negotiators to sign the treaty, but, as Rubio notes, the president declined to send the Rome Statute to the Senate for approval because of its “significant flaws.” 

In its first term, the Bush administration adopted a hostile approach to the ICC, including by withdrawing President Clinton’s signature and pressuring U.S. allies to sign more than one hundred agreements pledging not to surrender U.S. personnel to the court. In its second term, while I was legal adviser for the State Department, the Bush administration pursued a more pragmatic “modus vivendi” with the court, agreeing to cooperate in appropriate cases to investigate war crimes and genocide. In March 2005, the United States agreed to allow the UN Security Council to ask the ICC to investigate the genocide in Sudan’s Darfur region, and later offered assistance to the court’s investigation. President Bush concluded that he was more concerned about addressing the actual atrocities in Sudan than about hypothetical future investigations of U.S. soldiers. He also waived congressionally mandated restrictions on counterterrorism assistance to ICC members after Secretary of State Rice famously stated that cutting off counterterrorism funding to U.S. allies while the United States was engaged in a global conflict with al-Qaeda was like “shooting ourselves in the foot.”

The Obama administration expanded U.S. engagement with the court but did not attempt to join the Rome Statute. By contrast, during President Trump’s first term, the administration returned to a policy of hostility, imposing sanctions on the ICC prosecutor in June 2020 after she announced her investigation of U.S. personnel in Afghanistan. President Biden lifted these sanctions in April 2021.

While it is true that members of both parties in Congress have strongly opposed the ICC’s claimed jurisdiction over the United States and Israel—neither of which have ratified the Rome Statute—members of both parties have also strongly supported the ICC’s investigations of Russian leaders and other perpetrators of war crimes, such as Joseph Kony and the Lord’s Resistance Army. In 2022, after the Russian invasion of Ukraine, then-Senator Rubio joined Senator Graham in sponsoring Resolution 546 [PDF], which endorsed the ICC as “an international tribunal that seeks to uphold the rule of law” and urged ICC member states to petition the court to investigate war crimes committed by Russia.

Before dismantling the ICC, offer an alternative

The ICC is indisputably a flawed and politicized institution. A 2020 report published by independent experts identified numerous shortcomings. But these shortcomings are not sufficient reason for the United States to attempt to dismantle it—at least without an alternative. As the Bush administration and Senator Graham (and apparently Rubio when he was a Senator) concluded, the ICC has done, and is doing, important if imperfect work to uphold the rule of law in many cases, including investigating atrocities and war crimes in Libya, the Philippines, Sudan, and Ukraine. 

The United States has been absolutely right to oppose misguided and politicized investigations of countries like the United States and Israel that have functioning justice systems, but it should not try to kill a court that has enjoyed bipartisan congressional support when it has been doing the work it was intended to do, and that still provides the only venue for seeking justice for the worst international crimes. 

If the Trump administration has concluded that the ICC is fatally flawed and no longer deserving of U.S. support, it should propose an alternative method to address the worst international offenses, such as those committed by Russia, that would otherwise go unpunished. This would be consistent with the long U.S. tradition of leadership and support for international justice, going back to the Nuremberg tribunals.

This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher, and takes no institutional positions on matters of policy.