One of the first scoops I ever broke as a journalist concerned a quixotic effort by a George W. Bush administration official named John Bolton to punish American allies that were members of the International Criminal Court.
Bolton, then the under secretary of state for arms control and international security, sought so-called “bilateral immunity agreements” with countries that would prevent them from surrendering Americans to the ICC for prosecution. His focus included countries that received American military assistance. The administration presented them with an ultimatum: If they refused to sign these agreements, certain military aid they received from the United States could be suspended.
This was around 2004. And, as you may recall, the United States had invaded and occupied Iraq a year earlier. The Bush administration sought to present this as an international mission and assembled a “Coalition of the Willing” to participate in the war. This included, of course, the United Kingdom, but also several smaller European countries.
One of them was Latvia, which was both a member of the Coalition of the Willing and a party to the ICC. When presented with the ultimatum, Latvia rejected the idea of signing a one-off immunity agreement with the United States. This led to the rather awkward situation in which Latvia was deploying troops in support of America’s war in Iraq while simultaneously being threatened with the suspension of U.S. military aid.
For me, this was an early lesson in foreign policy: Officials and administrations with an ideological axe to grind can sometimes fixate on precisely the wrong things. But when it comes to the ICC, there is a strain of American foreign-policy thinking that regards the court as a lurking boogeyman, poised to seize American citizens and subject them to show trials in some international kangaroo court.
This brings me to Secretary of State Marco Rubio’s announcement today, delivered through a State Department press release, a Wall Street Journal op-ed, and a video address, that he is determined to “dismantle the court.” The ICC, he says, is “waging war against our country” and “threatens every aspect of our political and legal system.”
The thing is, the ICC has been around for 24 years. It has a record. And nothing in that nearly quarter-century-long record supports the claim that it is hell-bent on going after Americans.
First, a refresher on the ICC: The court was established in 2002 as a court of last resort, empowered to prosecute genocide, war crimes, and crimes against humanity, when national jurisdictions are unable or unwilling to do so. The ICC generally has jurisdiction over crimes committed on the territory of a member state or by the national of a member state. The major exception is that the UN Security Council may refer situations involving countries that are not ICC members, as it did with Sudan in 2005 and Libya in 2011.
The ICC currently lists 74 defendants, and 33 people are wanted and at large. The most famous among them are probably Vladimir Putin and Benjamin Netanyahu.
The United States is not a member of the ICC, meaning Americans are generally beyond its reach unless they allegedly commit crimes on the territory of an ICC member state and neither the US nor that ICC state pursues accountability.
The one time this became a serious issue was Afghanistan, which is an ICC member. In 2017, then-prosecutor Fatou Bensouda sought authorization for an investigation that included alleged crimes committed by U.S. military and intelligence personnel. The court eventually authorized that investigation. But in 2021, Bensouda’s successor, Karim Khan, announced that his office would deprioritize the allegations involving Americans and focus instead on alleged crimes committed by the Taliban and the Islamic State.
In other words, the one time the ICC even considered investigating Americans, the court opted against it. It has not charged a single American.
None of this seems to factor into Rubio’s declaration of war on the ICC. Among the measures announced or placed under consideration are:
Diplomatic calls from the secretary of state, deputy secretary, ambassadors, and other senior officials urging foreign governments to withdraw from the ICC;
Pressure on countries that partner with American law enforcement or the U.S. military—or benefit from the American security umbrella—to reject the ICC’s authority over American officials and service members;
Increased scrutiny of countries that refuse to do so while continuing to rely on U.S. assistance;
Diplomatic efforts urging other countries that are not parties to the Rome Statute to join the American campaign;
Visa revocations and travel bans targeting ICC personnel; and
Increased sanctions against the ICC and affiliated organizations.
If these measures are carried out, they would put traditional American allies—including most NATO countries—in a serious bind. They could be forced to choose between their obligations as members of the ICC and their security relationships with the United States.
So what is going on here?
One thing I try hard not to do in my writing or speaking is ascribe motives without evidence. It could be that Rubio is doing this primarily in defense of Netanyahu, who is wanted by the court over allegations involving the obstruction of humanitarian aid and the conduct of Israel’s war in Gaza. It could be that the administration is seeking to protect American officials from any future investigation arising from military operations on the territory of an ICC member state (which would not include Iran or Cuba, but would include Greenland). Or it could be to protect Americans from prosecution for the illegal targeting of suspected drug smugglers in the Caribbean. Or it could be something else entirely.
We simply do not know what is motivating this decision at this particular time.
What we do know is that this campaign further weakens the rule of law at an especially precarious moment for the laws of war. Since the end of World War II, international law has advanced two basic propositions. The first is that states may lawfully wage war only under limited circumstances, principally in self-defense or with the authorization of the UN Security Council. Wars of aggression are prohibited. The second is that even when a war is lawful, militaries must abide by rules governing how it is fought—including the obligation to distinguish between civilians and combatants and the prohibition against deliberately targeting civilians.
Both principles are under greater pressure today than at any point in recent memory. Russia’s invasion of Ukraine and the U.S.-Israeli war against Iran are two glaring examples of major powers ignoring a fundamental precept of the laws of war. And then you have the conduct of militaries and armed groups in Sudan, Gaza, Israel, Lebanon, and Myanmar, among others, that have targeted civilians en mass.
The ICC hasn’t stopped this trend as much as it proponents would have liked. But it is is an institution designed to uphold one of the most basic ideas in international law: that there are limits to what governments and militaries may do during war, and that when national courts cannot or will not enforce those limits, another court should be able to step in.
The ICC has the receipts to show for it — the record includes real convictions for real atrocities. The court convicted Congolese warlord Thomas Lubanga for recruiting and using child soldiers; Bosco Ntaganda for murder, rape, sexual slavery, persecution and other crimes in eastern Congo; Lord’s Resistance Army commander Dominic Ongwen for 61 war crimes and crimes against humanity in Uganda; and, most recently, Sudanese militia leader Ali Kushayb for 27 counts arising from atrocities in Darfur. These are prosecutions of commanders implicated in some of the gravest crimes of the past quarter century.
At a moment when the restraints on warfare are already coming apart, dismantling one of the few institutions capable of enforcing them will do little to protect American sovereignty—or Americans from a court that has never prosecuted one. What it will do is tear down another pillar of the international legal order and make it easier for unscrupulous war criminals to get away with murder.