Between Principle and Power: Evaluating United States Non-Participation in the International Criminal Court

Lauren Kort, The University of California – Santa Barbara

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Abstract

Why is the United States, a supposed advocate of human rights, accountability, and international justice, conspicuously absent from the list of 125 State Parties in participation with the International Criminal Court (ICC), the primary institution charged with prosecuting the gravest violations of international law? This article evaluates the ethical, political, and legal implications of U.S. non-participation in the ICC, referencing President Donald Trump’s Executive Order No. 14203: “Imposing Sanctions on the International Criminal Court” as a contemporary case study. After explaining the Court’s history, jurisdiction, and institutional safeguards, the article traces the evolution of U.S. policy toward the ICC across executive administrations, highlighting a pattern of inconsistency and hostility. This paper argues that claims of sovereignty have been selectively invoked by leaders of the United States to dodge universal standards of accountability, in turn weakening the country’s international credibility. The author takes the conclusive position that U.S. membership in the ICC would strengthen global relations, create internal stability between executive administrations, and align American practice with its professed commitment to justice. 

1. Introduction

On February 6, 2025, President Donald Trump signed Executive Order No. 14203: “Imposing Sanctions on the International Criminal Court.” He signed this order in response to the efforts of the International Criminal Court to investigate war crimes committed during the ongoing conflict between Israel and Hamas, specifically the Gaza operations of 2023-2024. The crimes against humanity alleged against Israel in the ICC’s investigation included willful killing and targeting of civilians, starvation of civilians as a method of warfare, extermination and persecution, taking hostages, and indiscriminate rocket attacks. In Executive Order No. 14203, Trump and his colleagues declared these investigation efforts to be “illegitimate and baseless actions targeting America and our close ally Israel.” In other words, Trump asserted that the United States and Israel deserved exemption from international investigations because of their uninvolvement in the founding treaty of the ICC, the Rome Statute. However, their alleged “uninvolvement” does not grant them exemption from the ICC’s investigations; Palestine’s role as a State Party in the Rome Statute grants the court authority to investigate any crimes committed on Palestinian territory, regardless of the accused nation’s participation in the Rome Statute. This is no foreign concept: according to well-established international law, U.S. citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts. From this perspective, Executive Order No. 14203 merely represents a petty rebuttal against the Court’s legally protected investigative efforts. The controversy surrounding this investigation and the subsequent Executive Order reflect a continuation of the United States’ longstanding resistance to the ICC and its jurisdiction over American or allied forces. This article seeks to evaluate the decision of the United States to remain uninvolved in the Court, considering ulterior motives and examining potential benefits and costs of the nation’s future participation. The paper will begin with an overview of the ICC’s history and purpose, then address global attitudes towards the Court, and ultimately argue for all powerful nations to subscribe to this international standard of accountability. In this light, the United States’ continued refusal to submit to the ICC’s jurisdiction reflects a contradiction between its rhetoric of universal justice and its insistence on unilateral legal immunity under the guise of autonomy. To demonstrate commitment to consistent ethical standards and enhance international legitimacy, the United States should join the 125 other State Parties of the International Criminal Court.

2. Establishment and Responsibilities of the International Criminal Court

In cases when national justice systems fail, the International Criminal Court investigates and tries individuals charged with the gravest violations of human rights. Though the establishment of the Court is fairly recent, the desire for international accountability has historical roots dating back to 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights. However, between 1954 and 1989, global tensions surrounding the Cold War halted any official establishment of an international criminal court. As these Cold War tensions subsided, the 1990s marked a period of significant progress on the project. This growth culminated on July 17, 1998 when 120 states voted to adopt the Rome Statute of the International Criminal Court. Sixty subsequent ratifications allowed the statute to enter force on July 1, 2002. The Rome Statute serves as the foundational treaty of the ICC, defining its legal framework, jurisdictional authority, and procedures for investigating and prosecuting crimes under international law. As outlined in the statute, there are four major categories of international crimes that the Court protects against: genocide, crimes against humanity, war crimes, and crimes of aggression. 

Genocide refers to the intention to destroy a national, ethnic, religious, or racial group through methods such as killing or serious harm. Because the Court requires proof of the specific intent of the aggressor to cause serious harm, genocide cases remain the most complex category for the Prosecution to successfully convict. Crimes against humanity include any widespread or systemic attack directed against a civilian population. While the four types of crimes outlined in the Rome Statute often intersect in the majority of cases tried by the Court, most investigations center on crimes against humanity. These crimes occur both during war and peacetime, granting the ICC broader jurisdiction. Additionally, they are the easiest to legally prove, as they do not require the prosecutor to establish proof of specific intent. Serious violations of the laws and customs of war, such as intentionally targeting civilians, mistreating prisoners, or using prohibited weapons, all fall under the category of war crimes. The provisions of the Geneva Convention of 1949 protect a long list of specific offenses that constitute war crimes. Finally, the most elusive type of crime protected by the ICC is the crime of aggression. Crimes of aggression are reserved for political leaders who demonstrate planning, preparation, initiation, or execution of an act of aggression which by character, gravity, or scale, violates the Charter of the United Nations. This investigation can only proceed for state parties who have accepted the Rome Statute, so political sensitivity and limits on jurisdiction have prevented the ICC from successfully completing a prosecution of the crime of aggression thus far.

3. A Court Built to Prevent the Abuse of Power

To enforce the protection against these four types of crimes, the International Criminal Court is composed of four principal organs that collectively create a system of internal checks and balances. The Presidency does not intervene in prosecutorial or judicial decisions, but oversees the ICC and appoints the judges to each Judicial Division. The Judicial Divisions collectively serve as the main decision-making body but include several chambers with their own responsibilities. When the prosecution first requests to open a new investigation, the Pre-Trial Chamber authorizes or denies it. Then, the Trial Chamber evaluates the case during the actual proceeding. Finally, the Appeals Chamber ensures that all decisions made by the Court withstand legal scrutiny. The Office of the Prosecutor investigates alleged crimes, gathering and presenting the evidentiary record to the Trial Chamber. The Registry provides the administrative backbone of the Court, providing neutral service to all the other organs of the Court so the ICC can conduct fair and balanced public proceedings. Through this structure, no investigation can progress without review from multiple units of the Court, preventing political manipulation as feared by American leaders.

4. Evolving U.S. Attitudes Toward the ICC

The relationship between the United States and the International Criminal Court has not always been one of hostility. Since the enactment of the Rome Statute, each of the subsequent six U.S. executive administrations differed in their strategies toward the ICC. Under the Clinton Administration (1993-2001), the U.S. cautiously supported the ICC. Clinton signed the Rome Statute in 2000, but never submitted it to the Senate for ratification, explicitly stating he would not do so until the ICC addressed certain fundamental concerns. He supported the principle of international justice, but feared political targeting of American citizens, particularly military personnel. However, by signing the treaty, the administration effectively announced the U.S.’s desire to be involved with the Court’s future actions and procedures. 

The subsequent Bush Administration (2001-2009) fully reversed this moderate approval. Though modeled by the same hesitations, the Bush Administration campaigned against the ICC in a qualitatively different and more intense nature than the Clinton Administration had. In 2002, John Bolton submitted a letter to former United Nations Secretary-General Kofi Annan attempting to void Clinton’s signature of the Rome Treaty and declaring U.S. disinterest in ever becoming a party to the Court. To fully grasp the degree to which this stance diverged from prevailing international consensus, it is important to note that the recipient of this letter himself proclaimed the ICC to be “the cause of all humanity.” The legality of Bolton’s unsigning is debatable. Regardless, it carried heavy political significance and foreshadowed the layered attack of the Bush Administration on the ICC, most notably enacted through bilateral immunity agreements. By 2006, 100 bilateral immunity agreements had been signed by other states under intense pressure from the United States. Bilateral immunity agreements shield American citizens from prosecution by the ICC of crimes committed on the territory of states subject to its jurisdiction. Such agreements clearly violate the obligations of State Parties under the Rome Statute. The American Servicemembers’ Protection Act of 2002 embodied the most damaging anti-ICC policy executed under the Bush Administration. This legislation prohibited U.S. cooperation with the ICC and authorized the deliberate withholding of military assistance to over 20 State Parties, including democratic allies of the United States. The attempts of the Bush administration to thwart the authority of the ICC were largely unsuccessful, and instead damaged the credibility of the U.S. as a leader in human rights. The administration’s distrust of the Court’s supposed infringement on U.S. sovereignty can be contextualized by a history of opposition to higher courts, particularly in relation to human rights. Within the first year of his presidency, Bush issued a highly controversial military order authorizing the indefinite detention of any non-citizen accused of engaging in terrorist activity. This directive also established special military tribunals to try these individuals swiftly and secretively, with no ability to appeal to a higher court. By comparison, a trial by the ICC is far more respectful of a defendant’s Constitutional rights than the military tribunals encouraged during the Bush presidency. Taken together, these actions indicate that the Bush administration vehemently opposed the ICC not out of genuine concern for American citizens, but rather out of blatant disregard for human rights. 

The Obama administration (2009-2017) sought to repair international relations by reintegrating the United States as an observer of the ICC. For the first time, U.S. representatives attended meetings of the ICC Assembly of States Parties, signaling a deliberate shift away from the isolationist posture of the Bush era. President Obama emphasized that “a new era of engagement has begun,” asserting that renewed respect for international institutions was crucial if the United States hoped to reclaim global leadership. However, the administration adopted a policy of selective cooperation, supporting the ICC in its prosecution of atrocities abroad while maintaining legal and political distance from the Court itself. While this was an improvement from the earlier U.S. obstruction of international law, it exposed the inconsistency of endorsing principles of accountability without accepting the reciprocal obligations those principles demand.

5. Current Opinion of the U.S. on the ICC

The Trump administration’s first term (2017-2021) resurrected an openly adversarial attitude toward the International Criminal Court. The hostility materialized most blatantly in 2019, when the administration revoked the visa of ICC Prosecutor Fatou Bensouda in response to the Court’s investigation of war crimes committed by the U.S. in Afghanistan. Unlike the prior administrations that tentatively cooperated with the ICC, this move marked a sharp escalation from skepticism into retaliation. As part of Trump’s broader retreat from international human rights institutions, he also withdrew the United States from the United Nations Human Rights Council in 2018. This complete evasion of external scrutiny revealed his disregard for legal mechanisms designed to protect vulnerable populations and enforce human rights.

Under the presidency of Joe Biden (2021-2025), the U.S. revoked the sanctions against ICC officials and rejoined the United Nations Human Rights Council. This fragile recalibration proved short-lived, as Trump’s return to office in 2025 revived and intensified the use of economic and political coercion to obstruct the Court’s work and shield allied nations from legal measures of accountability. Trump’s aforementioned Executive Order No. 14203 was announced mere days before Benjamin Netanyahu, the Israeli Prime Minister under investigation by the ICC, made his first visit to the White House since Trump’s re-election. The timing and targets of Trump’s renewed sanctions suggest a strategy that weaponizes sovereignty rhetoric to evade the consequences of grave human rights violations. U.N. experts strongly condemn the move, calling it an “attack on global rule of law” that undermines international justice. These sanctions ultimately harm all victims who look to the Court for protection, even those from countries where the United States ostensibly supports investigations. Public comment from the U.S. Department of State maintains broad support for the justice and defense of Ukraine, yet the sanctions issued in Executive Order No. 14203 limit the very system designed to provide that. In defiance of Trump’s executive order, European Union foreign ministers declared their “unwavering support” for the Court; however, all State Parties must turn their remarks of approval into concrete actions to defend the ICC. The global network of human rights advocates is actively calling upon governments to uphold international standards of justice. Given the American rhetoric of democracy, it is imperative that the United States joins in these efforts.

6. Benefits of U.S. Participation in the ICC

The Clinton administration signing the Rome Statute in 2000 signaled the intent of the United States to work towards one day joining the court, not to stand in permanent opposition to it. The U.S. has had 25 years to observe and assess the functioning of the ICC, and its professionalism and track record indicate the satisfaction of the initial fundamental concerns raised by the Clinton administration. Thus, it is time to acknowledge the American benefits of the Court and move towards ratification of the treaty. Becoming a State Party would grant the United States influence over the ICC’s judicial elections, prosecutorial discretion, budgetary decisions, and amendments to the Rome Statute. This participation would open up the possibility of an American judge on the bench and eventually an American chief prosecutor. Rather than playing the defensive, the United States should use its global power to advance ICC investigative objectives in ways that are compatible with U.S. foreign policy and critical values, such as the pursuit of justice in Ukraine. 

Furthermore, compliance with the ICC would rescue the globally perceived hypocrisy of the United States. Ambassador David Scheffer, the leader of the negotiating team in United Nations discussions of the ICC, faced complaints from other negotiators about the United States’ noncommittal history. Foreign scholars, lawyers, and diplomats voiced to Scheffer their deep resentment that the United States intensively negotiates international treaties, signs many of them, and then fails to follow through with ratification. Included in these treaties are the Convention on the Law of the Sea, Additional Protocols I and II of the 1949 Geneva Conventions, the Convention on the Rights of Persons with Disabilities, and the Rome Statute. By ratifying the Rome Statute, the United States would begin to overcome the foreign perception of double standards and strengthen its international relations by demonstrating observable action in line with proclaimed intentions.

The most concrete benefit of U.S. participation is institutional stability. Over the past six executive administrations, ICC policy has swung back and forth between engagement and hostility. This volatility undermines U.S. credibility and elicits constant bipartisan criticism. Ratification of the Rome Statute would prevent the use of sanctions, visa bans, and coercive diplomacy against judicial institutions, transcending the personal political agendas of each individual presidency. One of the most persistent executive objections to the ICC concerns sovereignty, yet this is directly addressed by the principle of complementarity in Article 17 of the Rome Statute. According to this principle, the Court may only exercise jurisdiction when a state is unwilling or unable to prosecute alleged crimes itself. The United States maintains one of the world’s most robust systems of military justice, so domestic investigations would generally preclude ICC jurisdiction altogether. Thus, ICC membership would only incentivize thorough domestic investigation within the United States and provide a secondary measure of accountability.

7. Conclusion

Executive Order No. 14203: “Imposing Sanctions on the International Criminal Court” is the latest manifestation of a longstanding contradiction in United States foreign policy. The U.S. champions accountability, human rights, and the preservation of international law until the institution designed to enforce those principles implicates American or allied conduct. From the cautious endorsement of the Clinton administration, to the combative opposition by Bush and Trump, to the selective cooperation of the Obama and Biden administrations, U.S. policy toward the ICC has been defined by inconsistency. This instability has deprived the United States of institutional influence and eroded its international reputation. Membership in the ICC would not sacrifice American autonomy, but instead reaffirm commitment to lawful governance. If the United States seeks to reclaim its role as a credible advocate of human rights, it must take a decisive step toward consistency, legitimacy, and leadership in international criminal law. In an era defined by the abuse of power, U.S. participation in the International Criminal Court is no longer aspirational, but necessary.