Why the U.S. Hasn't Always Supported the International Criminal Court

The U.S. relationship with the ICC is particularly perplexing, because "the U.S. has always had a role in international justice, going back to the role that it played in the Nuremberg and Tokyo trials after World War II," Kelebogile Zvobgo explains. Zvobgo is an assistant professor of government at William & Mary and founder and director of the International Justice Lab.

The U.S. also was involved in the U.N. Security Council resolutions that led to the creation of the International Criminal Tribunal for the Former Yugoslavia, which investigated and prosecuted atrocity crimes committed during the conflicts in the Balkans during the 1990s, she notes, as well as the International Criminal Tribunal for Rwanda, which investigated and prosecuted genocide.

The U.S. initially seemed to be open to the formation of a permanent international criminal tribunal when the idea arose after the Convention on the Prevention and Punishment of the Crime of Genocide was approved by the U.N. General Assembly in 1948. A U.S. diplomat, George Morris, even chaired a committee that met in Geneva to discuss the concept, according to this 2007 article by international law scholar John P. Cerone. But there turned out to be a catch.

"While the U.S. appeared to be amenable to the creation of an international criminal court, the envisioned court would have jurisdiction only over those individuals whose state of nationality had recognized the court's jurisdiction by treaty," Cerone wrote. That basically would enable countries — the U.S. for example — to opt out and be exempt from the court's authority.

Discussions about forming an international court continued for the next several decades, and President Bill Clinton even proposed establishment of a permanent court "to prosecute the most serious violations of humanitarian law" in a 1997 address to the U.N. General Assembly. Congress enacted a joint resolution supporting formation of a court as well.

But according to Cerone's article, U.S. intelligence agencies and the U.S. military — whose members conceivably might be investigated by such a court — weren't as supportive. The U.S. delegation that went to Rome in 1998 to participate in treaty negotiations tried to find ways to limit the ICC's ability to investigate Americans.

Back in Washington, conservatives in Congress voiced strong opposition. Sen. Jesse Helms, the North Carolina Republican who chaired the Senate Foreign Relations Committee, wrote to Secretary of State Madeleine Albright that he was ''unalterably opposed to the creation of a permanent U.N. criminal court'' because it would give the U.N. too much power over the U.S., as this 1997 New York Times article details.

In the end, the U.S. was one of a handful of nations that voted against the Rome Statute, and although President Clinton signed it before leaving office, the Senate never ratified it to make the U.S. a party to the statute.

Instead, after the ICC started operations in 2002, Congress passed and President George W. Bush signed into law the American Servicemembers' Protection Act, known informally as The Hague Invasion Act. It limits U.S. support for the ICC and authorized the U.S. president to use "all means necessary and appropriate" to bring about the release of Americans and allies detained or tried by the ICC, according this Congressional Research Service report.

Why the opposition? Since the start of the ICC, U.S. officials feared that ''the prosecutor for the court would be given too much power unchecked, and he or she could conduct politically motivated prosecutions of U.S. soldiers,'' John Bellinger III, a legal adviser to the National Security Council and the State Department during the Bush Administration, recently explained in a National Public Radio interview.

Since then, the U.S. has taken a position that some see as a double standard.

''We've helped transfer fugitives to The Hague," Zvobgo says. ''We just don't like jurisdiction over our personnel.''

One particularly sensitive subject has been the U.S. actions in Afghanistan. In 2017, then-ICC Prosecutor Fatou Bensouda requested judicial authorization to investigate war crimes committed in Afghanistan — a state party to the Rome Statute since 2003 — including allegations against U.S. military members, as well as the U.S. Central Intelligence Agency (CIA) personnel involved with secret detention facilities in Afghanistan and other countries. (The Taliban and its allies and the forces of the former U.S.-backed regime were also listed as subjects for investigation.) It wasn't until March 2020 that a panel of appeals judges reversed an earlier decision and gave permission for the investigation to proceed.

That move triggered retaliation by then-President Donald Trump, who issued an executive order denouncing the ICC assertion of jurisdiction as "illegitimate" and freezing any U.S. assets of court personnel involved in the investigation, as well as anyone who even assisted it. In April 2021, the Biden Administration ended those sanctions, while continuing to object to the court's assertion of jurisdiction.

While some critics might believe that the ICC could intrude on U.S. sovereignty, that possibility is limited by the principle of complementarity, which holds that the ICC can't take on investigations if a country has jurisdiction and is investigating the allegations.

"The premise of the International Criminal Court is a court of last resort," Zvobgo says. "So it only intervenes when domestic actors prove either unwilling or unable to conduct investigations and prosecute."

Additionally, the ICC doesn't exactly rush to judgment. To the contrary, its investigations can take years. The process starts with a lengthy preliminary examination, during which time the nation involved can head off a full-scale investigation by launching its own probe. If that doesn't happen and the ICC sees a likelihood of the crimes it was set up to prosecute, it can upgrade to a full-scale investigation, Zvobgo says.

Ukraine — like the U.S. — has never ratified the Rome Statute, the treaty that establishes and governs the authority of the ICC. But on two occasions — in 2013 and again in 2015 — Ukraine agreed to accept the jurisdiction of the ICC over crimes committed within its territory.

In the 2015 declaration, Ukraine cited crimes allegedly committed by senior officials of the Russian Federation and leaders of two Russian-based separatist movements, accusing them of armed aggression that led to the deaths of thousands of Ukrainians. The ICC has been investigating since that time.

On Feb. 28, 2022, shortly after Russia launched its current invasion, ICC prosecutor Karim Khan announced that his office would expand its effort and investigate the latest conflict as well, saying there is "a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine."

Khan's office began looking into how to preserve evidence of the crimes, and asked for cooperation from the international community. He also appealed to anyone with information useful to the probe to come forward.

Additionally, 43 states who are party to the Rome Statute have referred the conflict in Ukraine to the ICC for investigation, Jonathan M. DiCicco says an email. He's a professor of political science and international relations at Middle Tennessee State University whose areas of academic interest include conflict resolution in international politics.

Russia, like the U.S. and Ukraine, isn't among the 123 nations that are parties to the Rome Statute, but Russian forces' actions are subject to ICC scrutiny because they are taking place within the borders of Ukraine, a country that has accepted ICC jurisdiction from 2013 onward, according to Zvobgo.

But it isn't going to be easy for the ICC to prosecute Russian crimes in Ukraine, despite all the evidence of wrongdoing that's already appeared in media reports.

"Since Russia is not a state party to the Rome Statute, we can expect that Moscow will resist attempts by the ICC to investigate and establish custody over Russian nationals accused of war crimes," DiCicco explains. "That doesn't mean that the ICC will not take further action, but it does mean that the process is likely to be complicated and slow.

"Allegations of horrific atrocities in Ukraine demand international attention," DiCicco says. "The ICC is playing a key role in investigating the situation ... and Putin's Russia will try to frustrate international attempts to prosecute Russian nationals. Nevertheless, the situation in Ukraine might prove to be a crucial test of the ICC's effectiveness in a world where power politics casts a long shadow over international law and criminal justice."