Secretary of State Marco Rubio has pledged to "dismantle the ICC—brick by brick, if necessary," citing concerns that the International Criminal Court (ICC) could target American citizens, such as Border Patrol agents or U.S. soldiers. The United States is not a member of the ICC and has historically expressed wariness toward the organization.
This intensified opposition comes at a turbulent time for the ICC. Its chief prosecutor, Karim Khan, was recently removed from his position by an 82-member state vote, which found he engaged in misconduct and a serious breach of duty. Khan has denied accusations of sexual misconduct made by a colleague.
The tumultuous relationship between the U.S. and the ICC has seen significant fluctuations over the decades. Beth Van Schaack, former U.S. ambassador-at-large for global criminal justice, explained that the U.S. signed the Rome Statute, the treaty establishing the ICC, during the Clinton administration but never sought Senate ratification. A primary concern has been the treaty's provision allowing jurisdiction over individuals who commit crimes on the territory of state parties, a principle that has long worried the U.S. due to its global troop deployments.
A History of U.S. Skepticism and Shifting Alliances
During the Bush administration, concerns about potential ICC actions, particularly stemming from an Afghanistan investigation, led to the implementation of measures to protect U.S. servicemembers. However, in the latter part of Bush's second term, some of these measures were dismantled as the administration acknowledged the court's role in addressing issues like the crisis in Darfur.
The Obama administration initiated a reset, directing executive agencies to find ways to support the ICC's work when it aligned with U.S. policy. This period saw bipartisan support for the court, with figures like the late Senator Lindsey Graham and Senator Rubio himself co-sponsoring resolutions supporting justice in Ukraine. New legislation even facilitated U.S. support for the ICC's endeavors.
However, the first Trump administration reversed this approach, imposing sanctions on senior ICC officials, including the prosecutor and deputies. The Biden-Harris administration subsequently lifted these sanctions and resumed efforts to reset the relationship, particularly in light of the ICC's investigations into Russia's aggression against Ukraine.
Rubio's recent vow to dismantle the court represents another sharp reversal. The precipitating event for this shift remains unclear, with speculation ranging from a deliberate distraction from domestic issues to a targeted campaign against multilateralism. Despite these efforts, experts suggest that the U.S. alone cannot dismantle the ICC.
Impact and Potential Ramifications
While the U.S. cannot end the court, it can inflict damage. Sanctions have already been imposed on ICC judges, prosecutors, and NGOs involved in human rights advocacy in Palestine. Rubio's current campaign appears to focus on diplomatic efforts to persuade states to withdraw from or cease cooperation with the ICC. This has already led to a few states, primarily in Africa, along with Venezuela, to announce their withdrawal.
The ICC has also drawn U.S. attention for its issuance of an arrest warrant for Israeli Prime Minister Benjamin Netanyahu. While New York City Mayor Eric Adams has expressed a desire for Netanyahu's arrest if he visits New York, legal experts indicate this is highly unlikely due to federal law and the U.N. Headquarters Agreement, which grants privileges and immunities to individuals attending official functions. Nonetheless, any visit could be met with significant protests.
This escalating confrontation, occurring alongside internal turmoil within the ICC, leaves both the court and the U.S. in a difficult position. The court faces the challenge of refining its processes for handling complaints, while the U.S. risks damaging its international reputation by launching a campaign against an institution dedicated to prosecuting egregious crimes.