With the war in Iran going poorly, the Trump administration has declared a virtual war on the International Criminal Court (ICC). Secretary of State Marco Rubio vowed on Monday to “dismantle” the court as a supposed threat to US sovereignty. His rationale is laced with sophistry. The administration’s real goal is to secure impunity for war crimes, even those committed on the territory of ICC member states.
Rubio’s fictional dystopia
In a Wall Street Journal op-ed and a video posted on X, Rubio conjured up a dystopia in which local American officials such as police officers or border patrol agents “could be dragged before an international court, 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.”
This is utter fiction. The ICC has no jurisdiction over crimes committed in the United States. Unless Donald Trump were to start deploying police officers or border patrol agents abroad, the ICC would have no capacity to charge or prosecute them.
International law is not to be controlled
Nor can the US government claim not to have consented to the laws applied by the court. They are drawn from treaties such as the Genocide Convention and the Geneva Conventions that the US has either ratified or incorporated into its military manuals. Is it really un-American to outlaw genocide?
While Rubio complains that the US cannot “control” international law, no one should be able to. Law is meant to bind people, not be controlled by them. Although Trump has said “I don’t need international law,” that is a vision no decent leader should embrace.
Selective use of international law
Ironically, Rubio attacked international law just as he was invoking it. He said it was illegal for Iran to charge fees for ships passing through the Strait of Hormuz (as Trump was briefly threatening to do precisely that). That sums up the Trump administration’s view of international law – to be weaponized when convenient and ignored when applied to its own conduct.
Rubio describes the court as “run” by “hostile Third World governments united by their enmity toward the U.S.” That would surprise, say, the governments of Europe, virtually all of which are among the ICC’s 125 members. The most abusive governments tend to avoid signing up because their officials would then become subject to prosecution. Their domestic atrocities can be reached only by resolution of the UN Security Council, where the US has a veto.
Real objection: territorial jurisdiction
Behind its overblown rhetoric, the Trump administration’s real objection is to the court’s power to prosecute war crimes and other mass atrocities committed on the territory of its member states when the perpetrator is a national of a non-member state. Trump wants to be able to commit war crimes anywhere in the world with impunity.
Rubio talked breathlessly about the ICC threatening American sovereignty, as if the Trump administration has a sovereign right to commit war crimes. But what about the sovereignty of other nations that seek protection against crimes committed on their territory by joining the ICC? Recognizing their sovereign right is apparently inconsistent with Trump’s might-makes-right worldview.
Historical shift on territorial jurisdiction
Trump is not alone in this selective conception of sovereignty. At the ICC’s founding in 1998, Bill Clinton’s administration voted against territorial jurisdiction – and lost overwhelmingly, by a vote of 120 to seven. Yet when territorial jurisdiction was used in March 2023 to charge Russian President Vladimir Putin for kidnapping Ukrainian children, the US government changed its mind. Russia had never joined the court, but Ukraine had, so the ICC had jurisdiction because the children were kidnapped from Ukrainian territory. Suddenly, the US government loved the ICC’s territorial jurisdiction.
Joe Biden called the charges “justified”. Even Senator Lindsey Graham, an influential foreign policy voice, applauded. The South Carolina Republican engineered a unanimous Senate resolution supporting the ICC.
The love affair was short-lived. When in November 2024 the ICC charged Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, the Israel exception to international law kicked in and the Biden administration was outraged. But the court had used the same territorial jurisdiction as for Putin – Israel had not joined the court, but Palestine, the locus of Israeli crimes (in Gaza), had. When Trump took office two months later, he imposed sanctions on certain court judges and prosecutors.
Territorial jurisdiction is ordinary
There is nothing extraordinary about territorial jurisdiction, except in the minds of US officials who want to operate above the law. If I were to murder someone on the streets of Paris, Tokyo or São Paulo, the US government could hardly object if French, Japanese or Brazilian officials prosecuted me. So why is it objectionable if I were to commit war crimes on their territory, and instead of charging me themselves, they deferred to the ICC?
Key to justice for atrocities
Beyond Putin and Netanyahu, territorial jurisdiction is the key to justice for some of today’s worst atrocities. It is needed to prosecute officials from Rwanda, which is not an ICC member, for mass atrocities of their M23 militia committed in neighboring Democratic Republic of the Congo, which has joined the court. It is essential for prosecuting officials from the United Arab Emirates, also not an ICC member, for sending arms and mercenaries to the genocidal Rapid Support Forces in Sudan, where the ICC has jurisdiction by virtue of a UN Security Council resolution.
But what worries Trump officials most is the prospect that territorial jurisdiction could be used to prosecute them. For example, the court could reach the summary executions of people in suspected drug boats if any of these potential crimes against humanity took place in the territorial waters of Venezuela or Colombia, both ICC members. Trump (as well as Biden) officials could be prosecuted for aiding and abetting Israel’s genocide in Gaza by continuing to provide arms and military aid as it unfolded. And Trump might be prosecuted for obstructing justice (under article 70 of the ICC’s founding Rome Statute) for having imposed sanctions on ICC officials because they pursued the case against Israeli officials in Gaza; in his Journal op-ed, Rubio mentioned my earlier Guardian column advocating that possibility.
Rubio’s frontal assault
Rubio has promised a frontal assault on the ICC, with new sanctions on court personnel and pressure on governments that cooperate with the court. He plans to highlight “the risks posed to Americans”. That is unlikely to convince anyone. What he really means is the risk that Trump officials might be brought to justice for war crimes committed in ICC states. God forbid!
