On July 13, the Trump administration announced in an op-ed by Secretary of State Marco Rubio that it would “dismantle” the International Criminal Court (ICC), “brick by brick, if necessary,” using “all the tools at our government’s disposal.” According to a State Department press release, the United States will undertake
a sweeping campaign to dismantle the threat posed by the International Criminal Court to U.S. sovereignty. The campaign will feature a whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty.
We asked leading experts to consider: What does this announcement mean in practice for U.S. interests, for the Court, and for the cases it is pursuing? Is it simply more of what has come before from past U.S. administrations or is this a fundamental shift, and if so, what might be driving it? And what does it mean for international criminal law and its enforcement more broadly?
Experts Respond
Alex Whiting, Member of the Just Security Editorial Board and Professor of Practice at Harvard Law School, and former Investigations and Prosecutions Coordinator at the ICC:
We have seen this movie before. Since the ICC opened its doors in 2002, the United States has at various times moved aggressively against the court, only to realize later that this approach was self-defeating and contrary to U.S. interests. The George W. Bush administration started off in a hostile posture toward the court, but then in 2005 supported a U.N. Security Council referral of the situation in Darfur, recognizing that the ICC was one of the few institutions that might address the massive crimes being committed there. The first Trump administration also went after the ICC in 2020, imposing sanctions on the Prosecutor at the time because of the court’s investigations into potential international crimes in Afghanistan. But then after Russia invaded Ukraine in 2022, there was bipartisan support in the United States for the ICC’s investigations into potential war crimes and crimes against humanity in Ukraine. The late Senator Lindsay Graham sponsored a resolution in the Senate supporting the work of the ICC and said that “[t]he ICC is a venue to bring bad actors to justice in those areas where the Rule of Law is absent ….”
In fact, despite these periods of hostility, and even though the United States has never signed up to the ICC, it has largely taken a position of constructive engagement with the Court, through both Democratic and Republican administrations. And this is not surprising. Although the ICC is an imperfect institution, and has struggled to succeed, it is today the international institution to prosecute war crimes, crimes against humanity, and genocide, following on the legacy of Nuremberg and the ad-hoc tribunals for the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and Kosovo. From the beginning, the United States has been critical to the success of the project of accountability for international crimes, playing an essential role in the creation of these tribunals as well as in their accomplishments.
Accountability for international crimes, including by the ICC, serves U.S. interests in at least three ways. First, American servicemembers and citizens can themselves be the victims of these horrific crimes. A commitment to accountability is an important step to deterring these crimes and ensuring that justice is done when they occur. Second, international crimes cause further instability in the world, threatening to unleash cycles of violence and retaliation, which can threaten U.S. interests, including by fomenting terrorist reprisals. Third, the commitment to accountability is an important part of the international fabric and a foundational principle for many of our allies. Currently there are 125 states in the world that are part of the ICC. With the exceptions of the United States and Turkey, all the other members of NATO are members of the Court, and other important allies in North and South America, Africa, and Asia are as well.
Secretary of State Rubio’s newly announced policy to “dismantle the ICC – brick by brick if necessary” appears to be a dramatic escalation of hostility toward the court, with the apparent objective of destroying the institution. Putting aside that the Court is actually constructed of metal and glass, and not bricks, Rubio justifies his policy by pointing to various imagined threats against U.S. servicemembers and citizens by the Court, even though there is no indication whatsoever that the Court is currently investigating any Americans or has any plans to do so. The administration’s hostility to the Court is not new – it has imposed sanctions on the Prosecutor, Deputy Prosecutors, and numerous judges because of the Court’s arrest warrants in the Palestine situation – but now the administration appears poised to increase the pressure on the Court dramatically, announcing that future measures could include additional sanctions and pressure on member states to leave the Court. Ultimately, these measures will undermine U.S. interests, emboldening the perpetrators of grave international crimes and further distancing the United States from its important allies in the world.
Beth Van Schaack, Distinguished Fellow with Stanford’s Center for Human Rights & International Justice, served as U.S. Ambassador-at-Large for Global Criminal Justice:
Secretary Rubio’s threat to launch an all-out assault on the International Criminal Court is as unnecessary as it is misguided. If you look at the Court’s docket, it is singularly focused on delivering justice for genocide, war crimes, and crimes against humanity—including sexual violence and harm to children—in some of the worst atrocity situations around the world: Darfur, Sudan; Libya; the Philippines; Ukraine; and Venezuela. By way of example, arrest warrants have been issued for senior Russian figures for deliberately attacking civilians in Ukraine, former President Rodrigo Duterte for launching a campaign of murder in the Philippines, and Senior General Min Aung Hlaing for the enduring persecution of Rohingya in Myanmar/Burma.
The ICC Prosecutor has also closed a number of preliminary examinations, including one involving U.S. allies in Iraq and one initiated by Venezuela in response to U.S. sanctions. He also announced that any investigation of international forces in Afghanistan would be deprioritized; instead, he has chosen to focus his prosecutorial resources on systemic gender persecution by the Taliban against women and girls. All these existing investigations are entirely consistent with U.S. foreign policy in these situations. To be sure, the United States has long opposed investigations of U.S. personnel in Afghanistan or of Israeli figures in connection with the war in Gaza or otherwise. But Rubio’s aggressive approach will backfire vis-à-vis ICC actors and harden support for the Court among U.S. allies and adversaries.
The administration of George W. Bush launched a similar campaign against the ICC. Many of the measures pursued, such as bilateral agreements with a number of states not to refer each other’s citizens to the Court, remain in place as does the American Servicemembers Protection Act (ASPA). However, many measures adopted at the time, such as conditioning military assistance on a rejection of the ICC, were abandoned when it was determined they were ultimately counterproductive to U.S. interests. Starting in President Bush’s second term, the United States went on to adopt a constructive case-by-case approach to providing critical assistance to the ICC Prosecutor’s investigations and the work of the Court, including with respect to information sharing and the capture and transfer of fugitives to The Hague.
Much of this history is discussed in the report issued by a bipartisan Task Force convened by the American Society of International Law (ASIL) that I co-chaired. The Task Force of experts concluded that the United States should work to ensure that situation-specific tensions in its relationship with the ICC do not overshadow, or stand in the way of, its pursuit of robust and effective atrocities prevention and response, including in areas where the ICC’s work aligns with U.S. interests. The Task Force concluded that hostility toward the ICC has entailed, and will continue to entail, significant diplomatic costs. This more measured approach reflects that there exists within the United States—including among the electorate—deep and bipartisan support for the principle that those responsible for atrocities should be held to account. The ICC is part of a larger ecosystem that the United States helped to establish and should continue to support.
Eliav Lieblich, Member of the Just Security Editorial Board and Professor of Law at Tel-Aviv University’s Faculty of Law:
What is striking to me is that the State Department’s press release, as well as most of Secretary Rubio’s speech, does not focus so much on alleged specific wrongdoings by the ICC as on the mere possibility that it would exercise jurisdiction over Americans. This in fact challenges the idea of international criminal law itself.
Rubio is concerned with the potential exercise of ICC jurisdiction over acts of Americans abroad. However, the ICC’s jurisdiction over alleged crimes by nationals of non-states parties that take place in the territory of a state party stems from the well accepted principle that states have jurisdiction over international crimes committed in their territory, including by foreigners. State parties then transfer this jurisdiction to the Court. If, as the State Department implies, only a person’s own state would have jurisdiction over their international crimes, it’s hard to see what would remain of international criminal law altogether. According to this view, for example, if Ukraine decides to indict a Russian soldier for crimes committed on Ukrainian territory, that would be a violation of Russian sovereignty. This is obviously absurd. Moreover, recall that Russia is also not a state party to the ICC Statue. Is the State Department willing to say that the ICC arrest warrant against Russian President Vladimir Putin is invalid because Russia is not a state party? If not, the United States would be in a major consistency deficit.
What is also concerning is the rhetoric, in Rubio’s speech, that juxtaposes the ICC against the United States’ 250 years of sovereignty. This is part and parcel of the populist discourse that views international organizations – and perhaps international law at large – as hostile to state sovereignty, while in fact states need international cooperation precisely to safeguard their independence and sovereignty against problems and threats that they cannot confront alone.
Adil Ahmad Haque, Executive Editor of Just Security and Distinguished Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School:
Under the ICC Statute, the Court may exercise its jurisdiction over international crimes committed on the territory of states parties, including by nationals of non-states parties. This is the basis of the Court’s jurisdiction over crimes committed in Ukraine by Russian soldiers and officials.
The Trump administration is clearly concerned that its conduct in El Salvador and Venezuela, as well as some aspects of its support for Israel’s conduct in Palestine, falls within the ICC’s jurisdiction. However, there is no public indication that ICC prosecutors are actively investigating U.S. nationals. Moreover, any case against a U.S. national would be inadmissible if the United States conducts a good faith investigation of the same person for substantially the same conduct. The United States appears to be fighting a figment of its imagination.
It seems unlikely that the United States will successfully “urge” more than a few states to withdraw from the ICC. Even if El Salvador, Venezuela, or a few other states seek to withdraw, their withdrawal will not take effect for a full year. The Court will retain jurisdiction over any crimes committed on their territory during that period, and they will remain obligated to cooperate with the Court.
It is very unlikely that member states will repudiate the Court’s jurisdiction over crimes committed on their territory by the nationals of non-states parties. Such jurisdiction is one of the main practical benefits of membership, as it serves as a deterrent against the commission of such crimes. It is unthinkable that Ukraine or its allies will repudiate the Court’s jurisdiction over Russian nationals, notwithstanding that Russia is not a state party.
Increased sanctions against the ICC and “affiliated organizations” may impede their activities for a time. That said, if U.S. sanctions undermine the investigation or prosecution of crimes committed in Ukraine, it is possible that Europe will finally rediscover its self-respect and take strong action to protect the Court.
Nema Milaninia, Partner at Freshfields, former Special Advisor to the U.S. Ambassador-at-Large for Global Criminal Justice and ICC Trial Attorney:
The administration’s concerns about the ICC deserve a serious answer, but it is pursuing a counterproductive path if it is serious about addressing those concerns. The United States never ratified the Rome Statute, and a tribunal claiming jurisdiction over American service members could raise real questions under international law. The Court has also given its critics material to work with, as many of its supporters, this author included, have long argued: legal interpretations that outrun the law, inconsistent charging decisions, and internal dysfunction its member states have struggled to correct.
But the question is whether Secretary Rubio’s current campaign will fix any of that or protect a single American. The record says no. In the Afghanistan investigation, the test case, no American was ever charged, and the prosecutor deprioritized the U.S. allegations after the first-term sanctions were lifted, not while they were in force. Sanctions deterred no investigation and made reform harder, since no ally can be seen capitulating to coercion.
And dismantling the Court has costs. It was the ICC that issued the arrest warrant for Putin, and administrations of both political parties in the United States have supported the Court in certain investigations precisely because it advances U.S. objectives without expending significant American resources. The Court’s member states know it needs reform, and reform is far more likely with the United States engaged than with the United States at war with the institution. Demolition forfeits that influence; engagement is how Washington contributes to creating the Court it says it wants.
Rebecca Hamilton, Executive Editor of Just Security and Professor of Law at American University Washington College of Law:
We have seen similar efforts by various U.S. officials to “kill the court” for over 20 years now. Yet, over that same period we have also seen how the United States also finds it useful for there to be an institution that can pursue accountability for grave crimes in places like Ukraine and Sudan, where the United States cares about justice.
Rubio is trying to shield the Trump administration’s military campaigns from external scrutiny. He may be unhappy to learn that by pursuing a full court press on this, he is only attracting more attention to allegations of U.S. war crimes and crimes against humanity from Iran to the Caribbean.
Rebecca Ingber, Member of the Just Security Editorial Board and Professor of Law at Cardozo Law School and former Counselor on International Law at the State Department:
The administration’s belligerent posturing toward the ICC is a continuing own goal. It is hard to imagine a more effective means of spotlighting allegations of U.S. abuses than an anticipatory crusade by the U.S. government against an international body charged with accountability for war crimes and other atrocities.
Todd Buchwald, served as Special Coordinator for the State Department’s Office of Global Criminal Justice from 2015-2017, with the rank of Ambassador from 2016:
All this attention to such a phantom problem. Tell the Ukrainians that there should be no ICC pursuing the war crimes committed against them, or tell the victims of genocide in Darfur, or the women who have been been methodically raped and people whose societies have been destroyed in any number of other places. Meanwhile, no U.S. servicemembers are subject to any actual risk of investigation by the ICC that wasn’t already a possibility in the courts of any of the world’s more than 190 states that already exist. On those rare occasions when something actually comes up, we deal with it, and have always been successful.
At the same time, the Justice Department of the United States has often prosecuted personnel from other countries – posing to them the same type of risk that this announcement says is impermissible under international law. So what is it that the administration is actually saying is illegal and sinister? At the end of the day, it seems hard to believe that all this time and energy would be diverted to this kind of phantom crisis when there are soccer players out there who are incorrectly being given red cards!
