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International law, explained.
The Hague, Netherlands (Rick Bajornas/UN Photo)
The US built the international court’s authority and now it wants to tear it down.
Rubio’s ICC broadside misreads the court’s own limitsRubio’s ICC broadside misreads the court’s own limits
In a Wall Street Journal opinion piece published in July, US Secretary of State Marco Rubio announced (Opens in new window) that the United States would “dismantle the ICC (International Criminal Court) – brick by brick if necessary”.
Animus between the United States and the ICC, particularly under Republican administrations, is nothing new. However, these latest measures threaten to undermine the norm against impunity that the ICC has played a central role in establishing.
US President Bill Clinton signed (Opens in new window) the Rome Statute, the ICC’s governing treaty, confident that it would not be ratified by the US Senate. The Bush administration’s relationship with the Court was complicated: in 2002, John Bolton, then a State Department official, “unsigned (Opens in new window)” the Rome Statute, and President George W. Bush signed the somewhat infamous (Opens in new window) “Hague Invasion Act”. The United States also abstained (Opens in new window) from a Security Council resolution that referred the situation in Darfur to the Court.
The Obama administration was less hostile to the Court than its predecessor, without ever coming close to re-signing the Rome Statute, and the Biden administration directed the Department of Defence, against its will (Opens in new window), to cooperate with the Court’s gathering of evidence against Russians in the Ukraine situation, again without ever coming close to signing back on.
Without doubt, the two Trump administrations have been the most outwardly hostile to the ICC.
In June 2020, Trump issued an executive order authorising sanctions (Opens in new window) against ICC staff investigating American troops and intelligence officials and those of allied nations, including Israel, for possible war crimes in Afghanistan and elsewhere. Later that year, then Secretary of State Mike Pompeo called (Opens in new window) the ICC a “thoroughly broken and corrupted institution”, after which he announced sanctions on ICC prosecutor Fatou Bensouda and a colleague in an attempt to stop their inquiry into potential war crimes by American forces in Afghanistan.
“Brick by brick if necessary”. US Secretary of State Marco Rubio has pledged to dismantle the International Criminal Court (Freddie Everett/State Department)
Rubio’s tirade against the ICC assumes powers for the Court that its strongest advocates wish it actually had. The ICC is a court of last resort, not the “standing world tribunal with near unlimited reach” that Rubio claims it to be. And Rubio is just plain wrong if he thinks the ICC has jurisdiction over border patrol agents who “face the constant risk of persecution for the ‘crime’ of defending” the United States. The only possible pathway to the ICC for alleged crimes committed by US citizens on US soil that fall under the jurisdiction of the Court would be via a UN Security Council Resolution, which one assumes the US would veto.
The timing of Rubio’s comments is worth exploring. Rumours persist (Opens in new window) that the ICC is interested in investigating possible crimes committed by US service personnel on the territory of Venezuela when US forces kidnapped former President Nicolás Maduro earlier this year. And the US remains enraged at the Court’s decision to issue arrest warrants (Opens in new window) for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Galant.
While the prosecutorial success of the ICC has been poor, the importance of the ICC lies in its existence as much as anything else.
For much of the modern era, impunity for atrocity crimes was the norm. The establishment of new forms of international criminal justice, and the subsequent prosecution of individuals for so-called atrocity crimes at the ad hoc, UN-backed Yugoslav and Rwandan tribunals, moved then UN Secretary-General Boutros Boutros-Ghali to announce in 1994 the realisation of a “Grotian Moment (Opens in new window)”, whereby the state’s heretofore claim as the primary arbiter of justice in the international realm was undermined. The signing of the Rome Statute in 1998, and the ICC’s establishment in 2002, further informed a post-Cold War zeitgeist of overcoming impunity for those of crimes of greatest concern to the international community.
While the prosecutorial success of the ICC has been poor, the importance of the ICC lies in its existence as much as anything else. A quick skim of the Brereton Report (Opens in new window) reveals how the spectre of the ICC informed Australia’s decision to conduct a judicial process into alleged war crimes committed by the ADF in Afghanistan, an exercise states have been historically reluctant to undertake. And the activities of the Syrian Observatory for Human Rights (Opens in new window), which supports the collection of information in Syria as it relates to suspected war crimes and crimes against humanity, are informed by the possibility that Bashar al-Assad and members of his brutal regime will be held to account for their actions.
Historically, the US has played a key role in fighting individual impunity for atrocity crimes. And this support was not just ideological; it paid foreign policy dividends too, cooperation with the ICC on the Ukraine situation a case in point.
This makes the Trump administration’s deliberate misreading of the judicial reach of the ICC particularly infuriating, especially when being used to justify the dismantling of an institution that, for the reasons highlighted above, has little to no practical impact on the United States.
The real damage caused by the US threats against the Court, however, is the irreparable harm to the post-Cold War non-impunity norm that the ICC has played an integral part in establishing. Having been the driver of a new international legal order, the US is now intent on tearing it down.
About the author
Matt Killingsworth
Dr Matt Killingsworth is a Senior Lecturer in International Relations at the University of Tasmania.
