The US Attitude to the ICC Has Always Been Defined by Self-Interest

Wariness From the Court’s Inception

I worked for many years as a cooperation advisor at the ICC’s office of the prosecutor. During that time, Washington’s position towards the court shifted several times—it supported the court at certain times and criticized it at others.

This has largely been tied to a broader assessment of U.S. foreign policy goals and the anticipated costs and benefits that supporting the court could bring.

The U.S. was initially a keen supporter of the creation of a permanent international criminal court and was an active participant in the ICC treaty negotiations in the 1990s.

This law also allowed the U.S. president to use “all means necessary”—a phrase understood to include armed force—to free American officials or servicemembers should they ever be detained for prosecution in The Hague, the seat of the ICC.

But it ultimately voted against the Rome Statute that created the court in 1998 due to concerns with the court’s jurisdictional framework. The U.S. feared it could allow for the prosecution of Americans without U.S. consent.

Although the U.S. still signed the Rome Statute, President George W. Bush later effectively unsigned it, saying the U.S. would not ratify the document and had no legal obligations to it.

The U.S. remains a non-member state to the ICC today.

Once the ICC was created, the U.S. adopted laws to restrict its interactions with the new court. Most importantly, it passed the American Servicemembers’ Protection Act of 2002 (ASPA) that prohibited providing any support to the ICC.

This law also allowed the U.S. president to use “all means necessary”—a phrase understood to include armed force—to free American officials or servicemembers should they ever be detained for prosecution in The Hague, the seat of the ICC. This earned it the nickname of “ The Hague Invasion Act.”

That same year, however, an amendment was passed to the law allowing exceptions for when the U.S. could assist international courts to bring to justice:

Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of al Qaeda, leaders of Islamic Jihad, and other foreign nationals.

The amendment created significant flexibility, demonstrating that the U.S. was ready to assist international justice efforts as long as they targeted designated U.S “enemies” or other foreign nationals.

U.S. Support in African Cases

The U.S. soon adopted a pragmatic approach toward the court, supporting its activities depending on the circumstances and its interests.

In 2005, Washington allowed a United Nations Security Council referral to the ICC in relation to possible genocide and war crimes committed in Darfur, Sudan. The conflict was among the U.S.’ top foreign policy priorities in Africa at the time.

Later, the Obama administration formally adopted a “case-by-case” strategy to cooperate with the ICC when it aligned with U.S. interests.

Under this policy, the U.S. played an important role in the 2011 referral of alleged crimes against humanity and war crimes committed in Libya to the ICC. This was, again, in line with U.S. foreign policy interests.

U.S. diplomats also provided vital support in the arrest of Congolese warlord Bosco Ntaganda, who was later sentenced to 30 years in prison by the ICC for war crimes and crimes against humanity. And the U.S. assisted with the arrest of Dominic Ongwen of the Lord’s Resistance Army in Uganda, who was later sentenced to 25 years.

Another Falling Out Over Afghanistan

The relationship between the U.S. and the court soon soured again, though, during the Trump administration.

This was in part because of developments in the ICC’s investigation into alleged crimes committed in Afghanistan, which marked the first time the court probed possible crimes committed by U.S. forces.

In 2020, ICC judges authorized an investigation into U.S., Afghan, and Taliban forces. Soon after, the U.S. imposed sanctions on the ICC prosecutor, Fatou Bensouda, and another senior ICC official.

This week’s request for arrest warrants for Israeli leaders demonstrates yet another shift in the U.S. approach to the court.

After some delays, the investigation is continuing again, with a focus solely on crimes allegedly committed by the Taliban and Islamic State Khorasan Province. Other aspects of the investigation have been “deprioritized,” an implicit reference to the U.S. and its allies.

Soon after taking office, the Biden administration lifted the sanctions against the ICC officials, returning to a seemingly more collaborative period in U.S.-ICC relations.

These relations became closer following the Russian invasion of Ukraine, with the adoption of new laws that broadened the possibilities of U.S. cooperation with the court. The goals of the U.S. and ICC had seemingly aligned again, at least for the time being.

But this week’s request for arrest warrants for Israeli leaders demonstrates yet another shift in the U.S. approach to the court. It continues the pattern of the U.S. supporting the court when it suits it, prioritising its own foreign policy goals over wider international criminal justice efforts.