In mid-July, Secretary of State Marco Rubio announced that the Trump administration would seek to dismantle the International Criminal Court (ICC) “brick by brick, if necessary,” threatening a whole-of-government campaign to systematically weaken the court’s ability “to operate, target American servicemen or officials, or otherwise threaten American sovereignty.”

The campaign builds on an array of Trump administration sanctions already imposed on court actors and supporters, including eight judges, three senior prosecutors, a U.N. special rapporteur, and human rights organizations. In addition to threatening more sanctions, the administration seems intent on strong-arming other states to withdraw from the ICC and cease their support for the institution.

The Alliance’s Beth Van Schaack, a former U.S. Ambassador-at-Large for Global Criminal Justice, explains why the Trump administration is attacking the ICC and what it means for U.S. foreign policy.

What is the International Criminal Court?

Van Schaack: The ICC was created in 1998 when the Rome Statute was finalized. It was later ratified by over 120 U.N. member states. The United States signed the treaty in 2000, but never ratified it. The ICC has jurisdiction over the most serious crimes of international concern: war crimes, crimes against humanity, genocide, and aggression. In many areas where it works—Venezuela, the Philippines, Burma, and a number of African states—the ICC may offer the only pathway to justice since national courts are not functioning or have become tools of the oppressors. In other situations, such as Ukraine, national courts are overwhelmed with the number of cases and cannot deliver justice on their own.

Even though the United States never ratified the Rome Statute, it has long supported justice for atrocities in all these situations, including by providing diplomatic and operational support for the ICC’s work. Indeed, in 2022, the late Republican Senator Lindsay Graham sponsored a resolution in support of the court’s work in Ukraine, which then-Senator Rubio joined.

Rubio now warns that to “accept the ICC is to surrender control of our national destiny” and that it will herald “the death of the U.S. as a sovereign and independent nation.” This alarmism is concocted and unsupported by facts. There is no indication that the ICC is investigating any American at present. Absent a Security Council referral, the ICC only has jurisdiction over events on the territory of states that have signed onto the Rome Statute or over the actions of citizens of those states. Moreover, cases are not admissible if a national legal system is conducting a genuine and good faith investigation into the same conduct.

While ICC judges did authorize investigations into U.S. military and CIA personnel over potential war crimes in Afghanistan, no American was ever charged, and its prosecutor deprioritized the U.S.-related allegations in 2021, well before the launch of this latest campaign. Instead, the ICC issued an arrest warrant for crimes against humanity against senior Taliban figures for their systemic persecution of women and girls, a move once cheered by the United States.

How has the U.S. traditionally interacted with the ICC?

Van Schaack: The United States has actively engaged with the ICC since the international community first initiated the effort to establish a permanent international court—at times quite constructively and at times less so.

This is not the first time a U.S. administration has attempted to undermine the ICC. President George W. Bush launched a similar campaign against the court in his first term. Many of the measures pursued—such as bilateral agreements with ICC states parties not to refer each other’s citizens to the ICC—remain in place today, as does the American Servicemembers Protection Act, which contains additional protections for U.S. personnel. That being said, many other measures of that era, including conditioning military assistance on rejection of the ICC, were quickly abandoned when it became clear that they were counterproductive and backfiring on the United States.

Senior officials came to the realization that maintaining these military arrangements and participating in multilateral peacekeeping operations, even in ICC member states, were more important to international peace and security than expressing hostility to the court. These anti-ICC measures amounted to “shooting ourselves in the foot,” said then-Secretary of State Condoleezza Rice.

Starting in Bush’s second term, the United States shifted to a more constructive case-by-case approach to assisting the ICC’s work. Over the years, Congress dismantled many anti-ICC legislative provisions and enacted new ways to cooperate. This has included information sharing, the capture and transfer of fugitives, the referral of matters to the ICC via the Security Council, assistance with witness protection and cybersecurity, and contributing to the formulation of prosecutorial policies.

Indeed, a nonpartisan Task Force convened by the American Society of International Law (ASIL), which I co-chaired, urged the United States to ensure that situation-specific concerns do not overshadow or constrain its efforts to prevent and respond to atrocities, including in the many areas where the ICC’s work aligns with U.S. engagements in particular countries and U.S. interests, including longstanding policies in favor of accountability. The Trump administration ignores this history at its peril.

What does this policy mean for U.S. foreign policy and the international justice system?

Van Schaack: The ASIL Task Force found that overt hostility toward the ICC has entailed high legal and diplomatic costs for the United States. Individuals and organizations potentially subject to sanctions have already filed a number of lawsuits against the Trump administration. With the exception of the United States and Türkiye, every NATO member is a state party to the ICC, along with key U.S. allies across Latin America, Africa, and Asia.

The Trump administration’s campaign will further alienate U.S. allies committed to the success of the court and the rules-based international system of which it is a critical part. Moreover, such a campaign runs counter to the views of many in the United States: Polling data show consistent bipartisan support among the U.S. electorate for the work of the court and the imperative of advancing the rights of survivors of the worst crimes known to humankind.

The ICC is not a perfect institution, to be sure. Nonetheless, it remains a critical component of the global justice system the United States helped build starting in the post-World War II period. The Nuremberg tribunal in particular enjoys pride of place in this history—“one of the most significant tributes that Power has ever paid to Reason” in the words of the U.S. Supreme Court Justice Robert H. Jackson, Nuremberg’s Chief Prosecutor.

When Washington disagrees with a decision by an international body, it should register its views in ways that are consistent with judicial independence and the rule of law rather than through extra-legal and ad hominem onslaughts. Attacking an international court, its jurists, and the entire justice ecosystem betrays American values, undermines U.S. global leadership, and weakens accountability efforts everywhere. It signals that the United States does not support a fair, universal rules-based system. Indeed, these moves create a terrible precedent for rogue nations to emulate as they attempt to dismantle their own rule of law. The policy also sends a terrible message to survivors of international crimes everywhere: that the United States does not stand with them even when they view the court as a vital, and perhaps singular, pathway to justice.