In an op-ed in The Wall Street Journal earlier this month, U.S. Secretary of State and national security adviser Marco Rubio called for the eradication of the International Criminal Court, casting it as a threat to U.S. sovereignty and self-rule. Promising to dismantle the court “brick by brick”, he complained that Americans might be “tried by judges from random countries across the globe, found guilty under international laws we neither consent to nor control, and then imprisoned thousands of miles from America.”
Rubio is partly right about how the court works, but completely wrong that it can be dismantled on a whim, or that it represents a threat to American sovereignty. It’s true that the ICC is—and was always conceived to be—a standing criminal court, meaning individuals under its jurisdiction can be indicted and tried for the gravest crimes: genocide, crimes against humanity, war crimes and military aggression.
But none of this is new. The court’s mandate was written into the Rome Statute, the drafting of which the U.S. participated in. It is true that Washington ultimately decided not to sign the treaty, which was adopted in 1998 and went into force in 2002. However, that does not mean the U.S. “has not consented” to the international laws that the court is charged with enforcing, as Rubio falsely claimed. In fact, the U.S. helped lead the development of those very laws, and even hosted the 1948 conference that produced a first draft of the Genocide Convention, the language of which is now part of the ICC statute.
For 75 years, Washington has also championed international humanitarian law in its military affairs, incorporating the laws of war into its military manuals and joining or leading humanitarian wars to protect civilians in Kosovo, Libya and Iraq. To be sure, the U.S. hasn’t ratified every later provision in recent treaty law, mainly because ratification requires a two-thirds threshold of support in the polarized Senate. But some crimes are so widely understood to be reprehensible—like the direct targeting of civilians—that they are considered binding on all states under customary international law. The U.S. has, without even signing the treaties, incorporated these rules into its military manuals.
The concept of “crimes against humanity” was codified in the Rome Statute, but it was invented decades earlier by the United States, which worked with its allies to establish the war crimes tribunals at Nuremberg and Tokyo after World War II. A sitting justice of the U.S. Supreme Court, Robert Jackson, helped prosecute Nazi war criminals at Nuremberg. The ICC, which builds on this legacy, is a reflection of U.S. ideals, not a repudiation of them.
Rubio’s claim that the court’s continued existence “would mean the death of the U.S. as a sovereign and independent nation” misunderstands not just how the court works but how sovereignty works. The rules established by human rights and humanitarian law were also created by sovereign states, including the U.S., which exercised their sovereignty by establishing the limits of that concept: crafting rules, picking and choosing which to sign onto, and determining to either act within the acceptable bounds of the global sovereign states system, or accept the consequences of violating rules foundational to global civil society.
With the entry into force of the Rome Statute, those consequences now include the possibility of international prosecution for high officials. But that threat looms only for individuals from a state party to the treaty, or those who commit crimes on the territory of a state party. As such, the International Criminal Court is mainly a mechanism for protecting the sovereignty of state parties, by punishing what one country might do in another country against its will. It is not easily able to meddle in what non-parties do within their own borders.
The court cannot, for example, punish what a country like Iran may do to its dissidents because Iran has exercised its sovereign choice not to sign the treaty. However, if a non-party state violates the sovereignty of another country that has accepted the court’s jurisdiction and commits crimes within that country’s borders—as Russia has done in Ukraine and Myanmar has done by forcibly displacing Rohingya refugees across the border into Bangladesh—then the court’s reach provides the aggrieved country some recourse while providing victims of gross human rights violations some hope of justice. These facts hold true for the U.S. as well, as a member of the international system, and can’t be wished away, since sovereignty is understood as a bargain among all states, not just a shield for the powerful.
Rubio also seems to forget that for most Americans, the view that fundamental human rights should be protected both at home and abroad is an extension of U.S. sovereignty and national identity, not an affront to it. Adherence to treaties as the “law of the land” is written into Article 6 of the U.S. Constitution. Surveys consistently show Americans oppose the kinds of acts the court punishes, such as intentionally targeting civilians. And far from wanting to get rid of the ICC, a bipartisan majority of Americans favors joining the court.
The ICC is a reflection of U.S. ideals, not a repudiation of them.
The court’s advantages far outweigh its downsides for the U.S., because despite its lofty aims, it is actually far too weak to pose a threat to Americans. As designed, it is a court of last resort only, meaning that it acts when states are “unable or unwilling” to address crimes by their own citizens. As such, the U.S. has all the capacity it needs to keep the court at bay: simply to ensure its own troops don’t commit war crimes. Meanwhile, the ICC could be an ally in bringing those dictators to heel who violate human rights in ways that impinge on U.S. interests.
As such, Rubio’s rhetoric is misleading, not only about the court but likely about the Trump administration’s true intentions. Experts widely view Rubio’s campaign against the ICC as an attempt to shore up the impunity of top Trump administration officials for alleged war crimes overseas. Another aim may be to caricature the ICC as the specter of creeping globalism and use it as a wedge issue in the upcoming midterm elections.
Instead, however, Rubio’s campaign against the court is likely to only strengthen the ICC. Research by political scientist Geoff Dancy shows that one of the key impacts of references to the ICC in non-party states is to increase citizen interest in the concept of human rights. And Kelebogile Zvobgo, a political scientist at William and Mary, found in a 2019 study that members of the U.S. public respond more positively to a human rights-based framing than to a sovereignty-based framing when it comes to the ICC.
The ICC is also very good at surviving U.S. obstructionism. Since 2001, multiple U.S. administrations have used economic and aid leverage to sign bilateral treaties with state parties, securing their pledge to never extradite an American. Under the Trump administration, the U.S. has sanctioned ICC judges and prosecutors. And former President George W. Bush even signed legislation authorizing military force against the Netherlands, where the ICC is based, if a citizen of the U.S. or one of its allies is ever brought before the court, prompting critics to dub the law “The Hague Invasion Act.”
Through it all, the court has continued to operate, investigate allegations of high crimes and hold offenders to account. The absence of official U.S. support may have even been good for the court, which relies for its legitimacy on an appearance of impartiality and might otherwise be viewed as a tool of the West.
Like any judicial body, the ICC is not perfect. Its investigations move at a glacial pace, and it has faced accusations of bias, particularly against Africans, in the cases it prioritizes. The recent allegations of sexual abuse against Chief Prosecutor Karim Khan have also dealt a heavy blow to the court’s image.
Still, the fact that the U.S. is now seen as running scared of the court affirms the power and reach that it has. The Trump administration’s vendetta may even wind up galvanizing support for the body. Already, Rubio’s op-ed has prompted fresh calls from some Democrats in Congress for the U.S. to join the court. The EU has strongly condemned U.S. sanctions against ICC officials and may use its blocking statute to counter them. Meanwhile, Americans are suing their own government to defend the court on First Amendment grounds, and so are the ICC’s judges.
That the most powerful officials in the world see the ICC as a threat primarily makes them look guilty. But the court has never relied on America’s participation and has withstood its criticisms and obstructionism for nearly 30 years. It will outlast an op-ed by Marco Rubio.
Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets at @charlicarpenter.