MARCO RUBIO'S CRUSADE AGAINST THE INTERNATIONAL CRIMINAL COURT

On July 13, the State Department formally launched a "radical" campaign to "dismantle the International Criminal Court's threats to American sovereignty."

That same day, Secretary of State Marco Rubio published an article in The Wall Street Journal titled "Why We're Dismantling the International Criminal Court," framing the new crusade within a "civilizing dimension: sovereign states versus globalism."

For Rubio, the ICC represents an intolerable threat to US sovereignty: it claims the authority to prosecute and even imprison American military personnel and officials who act on behalf of America's national interests. Specifically, "it appoints itself as the final arbiter of US military policy and the entire American judicial system”.

In trying to discredit the Court, Rubio highlights its very purpose: ensuring accountability when those with the power to act choose not to. His arguments read like a tacit admission of wrongdoing: suggesting concerns that US officials could one day be held accountable for actions that may amount to crimes under international law.

But the only reason he would have to fear the ICC is if US officials have committed such crimes outside the US and the US government is unwilling to hold them genuinely accountable.”

The ICC

The ICC investigates and prosecutes individuals accused of the gravest international crimes. It was created by the Rome Statute, which was adopted in 1998, and officially became the first permanent international criminal tribunal in 2002 in The Hague, Netherlands.

Despite Rubio's assertions to the contrary, the ICC upholds state sovereignty. It is considered a court of last resort, meaning it complements national courts: it does not replace them. That is, the ICC intervenes only if a national court is unwilling or unable to investigate or prosecute international crimes.

The US position on the ICC has been deeply contradictory. The US played a leading role in the Nuremberg and Tokyo tribunals following the second world war. Then, under the Clinton administration, the US initially supported the idea of a permanent international criminal court. Washington even helped design much of the ICC's legal architectures and Bill Clinton signed the Rome Statute in 2000.

However, the US ultimately declined to ratify the treaty because it could not secure categorical protection for US personnel. Instead, the US negotiated over 100 bilateral immunity agreements that required partner countries not to surrender US nationals to the ICC without US consent.

Congress also enacted legislation limiting cooperation with the ICC. Under the so-called “Hague Invasion Act”, passed in 2002, the president can use “all means necessary and appropriate” to secure the release of US or allied personnel detained on behalf of the ICC.

Can the US abolish the ICC?

The US cannot legally abolish the ICC because it is an independent international organisation created by a treaty that now has 125 states parties.

Since the US never ratified the Rome Statute it has no legal authority over the court. Only the states parties can amend the Rome Statute collectively or withdraw from it individually.

However, the US can significantly obstruct the ICC in many ways and it has done so many times in the past. In 2020 the Trump administration imposed sanctions against ICC. More sanctions were imposed in 2025 following ICC arrest warrants relating to Israel. These measures make international banking, travel and professional cooperation considerably more difficult for officials.

The US can also pressure its allies to minimise cooperation with the court. As the ICC relies on states to execute warrants and gather evidence, this can severely hamstring any cases before the court. Governments or witnesses may reconsider their cooperation if they fear diplomatic consequences from the US.

Arguably, the strongest action the US can take against the court is at the UN Security Council. It could veto the Security Council’s referral of cases to the ICC or prevent any Security Council action supporting ICC investigations.

Why so much fury against the ICC?

Despite the crisis in international law generally, and international criminal law specifically, the ICC remains highly politically relevant, even to the most powerful states in the world. It would be almost impossible for the Court to secure the arrest and transfer of a US official. One could imagine, therefore, a world in which a US government hostile to the notion of international accountability would simply ignore the Court.

Instead, the mere prospect of an ICC investigation carries implications for international legitimacy and standing that are apparently sufficient to activate a pre-emptive and severe political backlash, including in the form of an agenda that will demand significant diplomatic manoeuvring.

This itself evinces the importance of continuing to invoke the principles that Rubio seeks to disparage and to use them as focal points around which to mobilize in response to criminality and abuse by even the most powerful.

As a matter of fact, the political reality is that the Office of the Prosecutor has always been unlikely to seek arrest warrants for US officials. In the only active investigation potentially implicating US officials (the Afghanistan investigation), the Prosecutor de-prioritized alleged US war crimes to focus on alleged Taliban and IS-K crimes.

Action on the former has seemed very unlikely, notwithstanding judicial admonitions to investigate crimes on their own terms, without reference to the affiliations of the perpetrators. In that sense, this latest move to attack the Court may be designed primarily to benefit Israeli officials, who, unlike their US counterparts, are the subject of existing arrest warrants (and likely applications for more).

The depiction and hysterical characterization of the ICC

In many respects, the depiction of the ICC, the hysterical characterization of it threatening the “death of the US as a sovereign and independent nation,” and the call to aggressive pre-emptive action to quash that threat barely warrant response.

The reality is that (absent Security Council authorization, over which the US exercises a veto), when the Court exercises jurisdiction over nationals of states that have not ratified or acceded to the Court’s Statute, it does so on the basis of their actions implicating war crimes, crimes against humanity, or genocide on the territory of a State Party or a state that has otherwise accepted ICC jurisdiction.

It is, in that sense, an affirmation and protection of the latter’s sovereignty and the most basic rights of its people, rather than an attack on the sovereignty of the state whose officials are acting extra territorially.

Rubio: “Take the ICC apart brick by brick if necessary!”

In an op-ed published in the Wall Street Journal, Rubio wrote that the US would work alongside allied governments to take the Court apart “brick by brick, if necessary,” using all tools at the government’s disposal.

He said the campaign’s message to other governments would be a choice of “sovereign states over globalism,” and pledged that the administration would protect US service members from ICC jurisdiction.

The op-ed does not detail specific measures, but options under consideration include travel bans, visa revocations, expanded sanctions against the Court and affiliated entities, and diplomatic pressure on member states to withdraw. Countries that rely on US security assistance and decline to reject the Court’s authority over Americans are likely to face increased scrutiny.

Venezuela and Chad

Venezuela and Chad's simultaneous withdrawal notification from the ICC (on 25 and 27 July), along with similar actions by other states, reveal a coordinated effort to weaken the Court through two main strategies.

The first involves a fierce campaign led by the US with Israeli backing, employing sanctions, threats, and public rhetoric to encourage states to withdraw.

The second consists of internal weakening tactics by state parties' governments, such as withdrawing during investigations, ignoring cooperation duties, or selectively enforcing decisions while refusing to arrest or surrender wanted individuals.

In reality, these withdrawals primarily harm the victims by limiting their access to justice, rather than penalising the Court as an institution. This situation gives perpetrators of international crimes more room for impunity, especially when there are no effective, independent national judicial alternatives.

In any case, concerning the legal consequences of the withdrawals, notifications from Chad and Venezuela to begin withdrawal procedures do not cause an immediate departure from the Rome Statute. Article 127 states that a withdrawal becomes effective one year after the UN Secretary-General receives written notification, unless a later date is specified.

Until that time, both countries remain state parties with legal obligations, including cooperating with the Court and fulfilling its requests.

A dangerous precedent penalising international justice

This escalation is mainly due to the Court's expanded reach to include officials in Israel, a key US ally. Washington's imposition of financial sanctions and travel restrictions on the ICC Prosecutor, judges, and deputy prosecutors due to their work on cases involving US and Israeli officials represents a blatant interference in the independence of international justice.

These measures not only intimidate Court staff and block access to vital financial and technical resources but also discourage banks, corporations, organisations, and experts from cooperating, which hampers investigations, delays enforcement of decisions, and limits victims' access to justice.

Moreover, it sets a dangerous precedent that allows powerful states to penalise international justice whenever it targets their officials or allies, thereby broadening impunity.

Arrest warrant for Israeli Prime Minister Benjamin Netanyahu

On 21 November 2024, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, after judges found reasonable grounds to believe they are criminally responsible for war crimes and crimes against humanity in the Gaza Strip.

Both arrest warrants remain in effect and must be obeyed by the parties involved. The argument that the Court lacks jurisdiction because Israel is not a signatory to the Rome Statute is unfounded as, already pointed out, jurisdiction is based on crimes committed within the territory of a member state, the State of Palestine.

This covers the Gaza Strip, the West Bank, and East Jerusalem. Therefore, Israel's non-acceptance of the Rome Statute does not exempt its officials from accountability for crimes allegedly committed on the land of a party state.

Considerations

If other states, besides Venezuela and Chad, bow to US pressure, they will acquiesce to a new era of lawlessness, impunity and rampant injustice. Now is not the time to appease. Now is the time to resist.

Appeasement will only further embolden perpetrators and open the door to more armed conflicts and more crimes committed by powerful leaders against their own or other states' populations. All states must firmly resist - both collectively and unilaterally - the Trump administration's campaign against the ICC and all international institutions that protect human rights.

They must also reiterate their support for the Court and enact practical and legislative measures to mitigate the effect of US sanctions on those impacted. State inaction and cowardice in the face of past sanctions and attacks is what emboldened the US to announce this strategy.

For the good of humanity, victims' hopes of justice, and the prospect of lasting global security, the international community must come together, stand up to the bullies in the White House and State Department and protect the international rule of law. We must not accept a reality where the most powerful have the least legal responsibility.

Conclusion

The US should stop its efforts to dismantle the Court and lift any financial sanctions and travel restrictions imposed on its judges, prosecutors, and associates. EU member states and other allies need to work together to implement legal, financial, and technical strategies that protect the Court and its personnel from sanctions and political influence, so it can continue to utilise the necessary services and resources to fulfil its responsibilities.

European state parties to the Rome Statute should turn their support for the Court into tangible actions by refusing to accept wanted individuals or allow their transit through their airspace. They must also ensure the arrest and surrender of such individuals on their territories, adhering strictly to legal obligations, including executing arrest warrants for Netanyahu and Gallant without bias or political influence.

The proposals to pursue diplomatic pressure through encouraging States Parties to withdraw and non-parties to join the US in its attack on the Court are dangerous in different ways. Their impact will turn on how much leverage the US seeks to invoke and whether other states are willing and able to band together in response. It is long past time for States Parties to stand up for the Court and act collectively in its defense.

States and organizations working to defend human rights must immediately commit to supporting the Court and its work, in order to prevent it from being dismantled "brick by brick."

This is because if criminals who violate the law are not punished, the laws themselves lose their value, and, in this case, the entire architecture of humanitarian law, laboriously constructed, is put at risk.