Why Washington is Going After the ICC

The International Criminal Court has overstepped its remit.

In March 2024, twelve senators wrote a letter to the International Criminal Court. The letter, sent to prosecutors in The Hague, argued that the court had overstepped its remit and threatened prosecutors. “We will move to end all American support for the ICC, sanction your employees and associates, and bar you and your families from the United State,” the senators wrote. The ICC’s prosecutor responded by threatening the senators with arrest.

Two years later, one of those senators declared he was bringing an end to the court.

Now-Secretary of State Marco Rubio’s announcement that he would seek to dismantle the ICC “brick-by-brick” shocked many, mostly in Europe, who advocate for such a court. But his action was long overdue, as the ICC has seriously expanded its remit and effectively become a tool of idealogues, not justice.

There is, however, an irony to America being the country which may finally bring down the ICC—as it was America which once fought to create a binding court in the Hague.

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America has a long, odd history with international courts. The United States has never been party to one, other than the United Nations International Court of Justice. But as a permanent member of the United Nations Security Council, America can simply veto any decision the court makes, as it did after the court ruled for Nicaragua in Nicaragua v. United States.

That has not kept a parade of American statesmen from arguing for the country’s participation in some sort of international court. Conservatives would rightly point to Woodrow Wilson as one of the major generators of this line of thought, as our 28th president fiercly advocated for America’s participation in the League of Nations—which, like the United Nations, had a corresponding court.

But it was his predecessors, William McKinley and Theodore Roosevelt, who took America into its first organization which could be construed as a court: the Permanent Court of Arbitration. Roosevelt in particular was a fan of the organization, linking it to a Washington administration-era treaty which allowed for third-party arbitration. It was Roosevelt who called for the a conference, held in 1907 in the Hague, which was designed to strengthen the court.

Yet Roosevelt blasted Wilson’s similar call for an expanded international court. The 26th president’s dividing line was, apparently, universal arbitration, the notion that a state could not choose whether or not it wished to pursue a decision via arbitration. To Roosevelt, this was an unacceptable abandonment of the national interest. Arbitration could keep the peace, but it had to be pursued due to both parties wishing for an alternative to war.

In hindsight, Roosevelt’s notion that any court of permanent arbitration could remain voluntary was wildly optimistic—though Roosevelt had no way of knowing that. It would take 100 years for that to become painfully all too clear.

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President Bill Clinton signed America onto the Rome Statute, which created the ICC, in the late 1990s. But the Senate failed to approve the treaty and George W. Bush declared the signature null and void. He also signed the American Service-Members Protection Act, which allows the president to use military force to retrieve American officials, soldiers, or allies who have been arrested by the court.

The Trump administration has taken that disdain to a new level, with the president signing an executive order soon after his return to office which ordered sanctions on any individual who aids in the prosecution of Americans, Israelis, or other countries which reject the ICC’s jurisdiction.

Many on the Right may pause at this last sentence, understandably wary of the United States taking action explicitly on behalf of Israel. But the Trump administration’s action is, in truth, not about Israel: it is about the ICC expanding its powers far beyond original intent.

Roosevelt wished for a court in which participants would only participate in ad hoc arbitration hearings on specific issues which the two sides could not solve on their own. Wilson wished for a court in which all members would have to participate in arbitration disputes if one member brought it forward.

But the ICC, as it currently understands itself, argues that it has the ability to order arrests of anyone, including national leaders of non-member states, put them on trial, and send them to jail. This includes Benjamin Netanyahu, yes, but it also includes Vladimir Putin of Russia, one of the most powerful men on the planet. Biazrrely, it never included Bashar Al-Assad or Ali Khamenei.

As a result of these warrants, the court has effectively deemed itself answerable to no one and, if it wished, able to arrest the President of the United States. As mentioned above, it already implied that the senators who signed the letter threatening the court could be arrested. It is impossible to imagine that the court would not arrest an American president if it so wished.

Under the ICCs version of international law — that of the liberal international order — many Trump administration actions could warrant arrest. America’s successful decapitation of the Maduro regime, for example, could qualify, as could its strikes on drug boats. The Iran War obviously would violate the “norms” of the liberal international order.

That order is dying out, being replaced with something more out of the 18th century. But its organs, including the ICC, will persist like weeds, as they have for the past few decades.

Fortunately, the harvest is here, and the United States is pulling up the weeds and throwing them into the furnace.

Anthony J. Constantini is the policy director for the Bull Moose Project.