The Trump administration wants to dismantle the International Criminal Court. Can it?
- Written by: Weekend Times
On Monday, US Secretary of State Marco Rubio wrote a blistering missive in the Wall Street Journal unveiling plans to dismantle the International Criminal Court (ICC). He claimed it threatened “US soldiers,
police officers, Border Patrol agents and elected leaders” under international laws that “we neither consent to nor control”.
The State Department then unveiled the steps it would take to target the court, which include pressuring allies to resist ICC attempts to prosecute Americans, travel bans on ICC officials, and increased sanctions on the court.
The State Department called the court an “intolerable threat to US sovereignty”.
But Rubio’s claims show a wilful ignorance of international law, out of step with someone of his office.
For example, the four core international crimes under the ICC’s jurisdiction – genocide, aggression, crimes against humanity and war crimes – are considered a “peremptory norm”. This means they are universally applicable to all states, and no country can choose to violate or ignore them.
Ironically, Rubio is also seeking to override the sovereignty of all the states that have joined the ICC. As Kenneth Roth, the former head of Human Right Watch, has said, Rubio is ignoring “the sovereign right of other nations to invoke the ICC for crimes committed on their territory.”
So, what exactly can the US do to the court, and why do these threats matter?
What is 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 architecture, and former president 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. (It does not authorise an invasion of the Netherlands, despite the nickname.)
What can the US actually do to the court?
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 – and formally withdrew its signature in 2002 – it also has no legal authority over the court. Only the states parties can amend the Rome Statute collectively or withdraw from it individually. The US cannot abolish the ICC through domestic law or executive action.
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 prosecutor Fatou Bensouda and other senior ICC officials. 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.
Attacks on the rule of law
Rubio’s efforts to undermine the court also have broader significance. It represents yet another attempt by the Trump administration to erode the international rule of law and replace it with a global order in which “might makes right”.
This normalises the idea that powerful states may disregard or obstruct international law or independent legal institutions whenever they become politically inconvenient. The Trump administration’s capture of Venezuelan leader Nicolas Maduro and strikes on Iran are key cases in point.
Without any accountability in place to stop nations from doing whatever they want, the world would be on a dangerous slippery slope into sheer lawlessness.
Shannon Brincat does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
