On July 13, Secretary of State Marco Rubio announced a “sweeping campaign” to dismantle what the State Department characterized as the “intolerable threat” posed by the International Criminal Court to U.S. sovereignty. The announcement — delivered through a press release, a video statement, and an accompanying op-ed — promised a “whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty.” Among the measures under consideration: expanded sanctions on the Court and its affiliates, visa revocations and travel bans for ICC personnel, diplomatic pressure on States Parties to withdraw from the Rome Statute, and “increased scrutiny” of nations that rely on U.S. security assistance while declining to reject the Court’s authority.
The announcement raises two questions worth taking seriously. The first is why now and what, precisely, prompted a campaign of this scale at this moment. The second is whether the threat the campaign purports to address actually exists in the form the administration describes. On both counts, the campaign appears premised on a misunderstanding of how the Court functions. And yet the announcement also taps into a genuine and increasingly bipartisan unease about the Court’s trajectory, one that the Court’s supporters, myself included, would be unwise to dismiss. Both halves of that picture deserve honest treatment.
Why Now?
The timing of the announcement is not self-evidently connected to any of the matters that most prominently shape American perceptions of the Court. It does not appear to be a response to the ICC’s Afghanistan investigation or any recent developments in it. Nor does it appear to be driven by the Assembly of States Parties proceedings, taking place on July 24, concerning the allegations of sexual misconduct against ICC Prosecutor Karim Khan, or even by the Israel situation and the arrest warrants for senior Israeli officials that have dominated U.S.-ICC relations for the past two years. Though all of those matters certainly color the general atmosphere in which this campaign was conceived.
Rather, the most plausible proximate trigger is a set of recent efforts by civil society organizations: campaigns urging the Court to open investigations concerning U.S. conduct in the Caribbean, and parallel efforts to persuade the governments of Iran and Cuba to ratify the Rome Statute, or lodge declarations under Article 12(3), for the apparent purpose of creating a jurisdictional hook over U.S. personnel and operations.
If that is indeed what prompted the campaign, then the campaign rests on a basic misapprehension of how the Court works, in at least three respects.
First, there are no investigations of U.S. personnel. None is pending, and there is no indication that any will be opened. The Afghanistan investigation, the situation most often invoked in American debates, was deprioritized with respect to alleged conduct by U.S. forces years ago, with the Office of the Prosecutor focusing its limited resources on crimes attributed to the Taliban and the Islamic State–Khorasan Province. A campaign to “disable” the Court’s ability to “target American servicemen” is, in operational terms, a campaign against something that is not happening.
Second, Article 15 communications do not open investigations, and never have. A number of organizations have announced that they will press for investigations of U.S. conduct through communications submitted under Article 15 of the Rome Statute. These announcements generate headlines, and they are frequently described — including, regrettably, by some who work extensively with the Court — as though they set an investigative process in motion. They do not. The Office of the Prosecutor receives thousands of Article 15 communications; they are inputs into the Office’s preliminary assessment work, nothing more. There has never been an ICC investigation opened as a result of an Article 15 communication. The proprio motu pathway requires the Prosecutor’s own independent determination that the statutory criteria are met, followed by judicial authorization from a Pre-Trial Chamber. In such cases, the Prosecutor’s investigation is publicly announced, not disguised. The persistent misrepresentation of the Article 15 process, of both its mechanics and its practical value, has done real damage on both sides of this debate: it inflates expectations among advocates, and it inflates threat perceptions among governments. Treating an NGO press release announcing a “filing” as the opening salvo of a prosecution misunderstands the institution at the most elementary level.
Third, the Iran and Cuba scenario is fanciful. It is highly unlikely that either government would ratify the Rome Statute or issue the declaration necessary to enable the Court’s jurisdiction over their territory. Both governments would be perfectly aware that the first and foremost consequence of accepting the Court’s jurisdiction would not be scrutiny of U.S. conduct, but scrutiny of their own, beginning with the mass acts of internal repression and violence each has carried out against its own population. Jurisdiction under the Rome Statute is not à la carte. A state cannot accept the Court’s authority for its adversaries’ conduct while immunizing its own. Tehran and Havana understand this, which is precisely why the ratification campaigns directed at them are exercises in political theater rather than plausible jurisdictional strategy.
In short: the scenario likely animating the State Department’s campaign — an ICC poised, or soon to be positioned, to prosecute Americans — does not correspond to how the Court operates, how its investigative machinery is actually triggered, or how the states supposedly conspiring to enable it would behave.
The Perception Behind the Campaign Deserves Serious Engagement
Having said all of that, it would be a mistake, and a disservice to the Court, to treat Rubio’s statement as nothing more than a factual error to be corrected. Because beneath the campaign’s inaccuracies lies a perception that is real and that is increasingly bipartisan: the perception that the Court has steadily expanded the ambit of its authority, including over nationals of countries that deliberately chose not to join it and never consented to its jurisdiction.
That perception is not confined to one party or one administration. Recall that just last year, 45 House Democrats, including members of the party’s progressive wing, joined every voting Republican to pass the Illegitimate Court Counteraction Act, legislation mandating sanctions against the Court. Prominent Senate Democrats were equally supportive of the measure, even if ultimately voting against it out of fear that U.S. companies would be injured. Whatever one thinks of that vote, it reflected something deeper than partisan positioning: a conviction, now held across much of the American political spectrum, that the Court has drifted from the institution the Rome Statute’s drafters described and that U.S. administrations of both parties once engaged with, however warily.
That distrust reached its zenith not under President Donald Trump but during the Biden administration, and it is worth being candid about why. In the course of the Palestine situation, it was reported that Prosecutor Khan made overtures to U.S. government officials in Congress and the executive branch suggesting that he would delay or forgo certain arrest warrant applications if he were granted access to Israel, and then, after securing that access, announced the warrant applications in a televised and pre-planned about-face. For U.S. government officials who had extended good faith to the Office of the Prosecutor, many of them among the Court’s most sympathetic interlocutors in Washington, the episode was corrosive in a way that no amount of legal argument about jurisdiction could repair. It confirmed, for many, every suspicion they had ever harbored about the institution.
But here, too, the conclusion being drawn misunderstands the Court. Prosecutor Khan is a singular figure. His conduct in those exchanges was his own, a reflection of one official’s approach to his mandate, not of the institution’s design or its jurisprudence. The Rome Statute system was built precisely on the premise that no single actor, including the Prosecutor, wields unchecked power: prosecutorial decisions are subject to judicial authorization and review by Pre-Trial Chambers; the Assembly of States Parties exercises oversight over the Court’s officials; and the Office itself is now led day-to-day by deputy prosecutors while the allegations against Khan are addressed through the very accountability mechanisms the Assembly will take up on July 24. One can, and should, hold Khan’s conduct to account without mistaking the man for the institution. Indeed, the fact that the Assembly is confronting allegations against its own sitting Prosecutor, publicly and through a formal process, is evidence that the system’s internal checks function, however imperfectly and however slowly.
The same is true of the jurisdictional grievance. The Court’s assertion of territorial jurisdiction over nationals of non-party states is neither novel nor lawless. It mirrors how domestic criminal jurisdiction has operated for centuries, and it is the same principle the United States invokes when it prosecutes foreign nationals for crimes committed on U.S. soil. Americans may reasonably debate whether the Court has exercised that authority prudently. But “expansive” is not the same as “illegitimate,” and the answer to imprudent exercises of lawful authority is engagement, argument, and reform, the tools the United States has used to shape every other international institution it has cared about, not a campaign to render the institution “incapable” of operating.
The Cost of Dismantlement
There is a final irony worth naming. The Court the State Department now seeks to dismantle is the same institution whose arrest warrant against Vladimir Putin the United States welcomed, whose work on Ukraine successive administrations have supported, and whose underlying premise — that individuals, not peoples, bear responsibility for atrocity crimes — is an American export, carried forward from Nuremberg through the tribunals the United States built for the former Yugoslavia and Rwanda. A campaign that pressures allies to abandon the Court, sanctions its personnel, and conditions U.S. security cooperation on rejecting its authority will not insulate Americans from a threat that does not exist. It will, however, weaken an institution that serves interests the United States has championed for 80 years, and hand a gift to precisely those governments, in Tehran, Havana, Moscow, and elsewhere, that have the most to fear from accountability.
Indeed, the reaction from Washington’s closest partners has been immediate. The European Union called the threats against the Court “unacceptable,” and the campaign now asks allies to choose between their treaty obligations under the Rome Statute and their security relationships with the United States, a choice that strains the very partnerships the administration needs on every other file, from trade to collective defense, and one that most States Parties have already made clear they will resolve in favor of their legal commitments.
The Court has real problems: of leadership, of case selection, of the trust it has squandered with states whose cooperation it needs, and of internal governance. Those problems warrant scrutiny, candor, and pressure for reform, including from Washington. What they do not warrant is a campaign premised on a threat the Court is neither pursuing nor structurally capable of pursuing in the manner described. The United States has always been at its most effective when it has shaped international institutions rather than sought to break them. That remains true here.
