Secretary of State Marco Rubio has presented his campaign against the International Criminal Court (ICC) as a defense of American sovereignty and U.S. service members.
President Donald Trump supplied a more immediate explanation during a July 31 Cabinet meeting: “He is trying to defend Bibi and various other people, but there are many people that shouldn’t be looked at that way, but there is no indication that I’m one of them at this moment.”
Rubio returned to hypothetical arrests of American service members decades from now, seemingly an awkward pivot consider that Trump had just identified Netanyahu and others as the campaign’s actual beneficiaries.
Rubio’s hypothetical is difficult to reconcile with the court’s record. The ICC does not disclose everyone examined during confidential investigations, but it has never charged an American or issued a warrant for one.
Of the 61 arrest warrants issued in the court’s history, only four, or about 7%, have involved nationals of either a current U.S. mutual-defense treaty ally or Israel: Netanyahu, Gallant, former Philippine President Rodrigo Duterte, and former Philippine police chief Ronald dela Rosa.
Its only public investigation encompassing alleged U.S. conduct concerned alleged mistreatment by military and CIA personnel connected to Afghanistan. The prosecutor de-prioritized those allegations in 2021 to focus on the Taliban and Islamic State-Khorasan Province.
The Afghanistan warrants issued so far target two Taliban leaders. That record provides little support for portraying the court as an immediate threat to Americans or broadly hostile toward U.S. allies.
Neither Trump’s admission nor the United States’ refusal to cooperate with the ICC determines whether the court’s warrants are legally valid. His admission does, however, make the administration’s campaign look less like a neutral jurisdictional objection and perhaps more like an effort to protect particular allies from an existing judicial process.
Rubio’s Campaign Against the ICC
Rubio announced in July that the administration would use a governmentwide campaign to dismantle the ICC “brick by brick,” including diplomatic pressure on countries that finance or belong to the court.
The administration has also imposed financial sanctions and travel restrictions on court officials and people assisting investigations involving Americans or citizens of allied countries.
Rubio later said that five countries had notified the court that they were leaving. Withdrawal, however, does not take effect immediately.
Article 127 of the Rome Statute generally requires a one-year waiting period, providing that withdrawal does not erase obligations or proceedings arising while the country remains a member.
It also explicitly states withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
Washington can weaken the court’s resources and political support, but it cannot retroactively eliminate jurisdiction that the court already acquired or void any investigation already being considered.
How ICC Jurisdiction Actually Works
The ICC prosecutes individuals, not governments.
It may generally exercise jurisdiction when an alleged crime occurs on the territory of a member state, when the accused is a citizen of a member state, or when the U.N. Security Council refers a situation.
A country that has not joined the court may also submit a declaration under Article 12 of the Rome Statute accepting jurisdiction over particular crimes, territory or periods. That acceptance can allow the court to prosecute crimes committed within the nonmember country, including alleged crimes committed there by citizens of other nonmember countries.
The State of Palestine used both routes available under the Rome Statute. It submitted an Article 12(3) declaration accepting ICC jurisdiction over alleged crimes committed in the occupied Palestinian territory since June 13, 2014, and then became a full member on April 1, 2015.
An ICC chamber later determined that the court’s territorial jurisdiction extends to Gaza and the West Bank, including East Jerusalem. That decision supplies the court’s jurisdictional basis for alleged crimes committed there even though Israel never joined the court. Israel continues to dispute Palestine’s status and the ICC’s jurisdiction.
In November 2024, judges issued arrest warrants for Netanyahu and former Israeli Defense Minister Yoav Gallant after finding reasonable grounds to believe they bore responsibility for alleged war crimes and crimes against humanity.
Israel disputes the allegations and the court’s jurisdiction. The warrants are not convictions, and prosecutors would still have to prove any charges at trial.
The court did not limit its action to Israeli officials. It also issued a warrant for Hamas commander Mohammed Deif, which it later withdrew after his death was confirmed.
It is important to note the ICC does not automatically take over a case simply because it has jurisdiction. It operates under “complementarity,” which gives national courts the first opportunity to act.
A country can ask the ICC to step aside by showing that it is genuinely investigating or prosecuting the same person for substantially the same conduct. ICC judges then assess those domestic proceedings.
If they are legitimate, the ICC case becomes inadmissible; if no meaningful investigation exists or the country is unwilling or unable to conduct one, the ICC may proceed.
International Law When Washington Finds It Useful
Rubio’s campaign does not reflect any principle Washington applies consistently.
The United States routinely invokes international law to condemn, pressure and use force against adversaries. It has also supported ICC action when the potential defendants came from governments Washington opposed.
The administration’s objection is therefore difficult to separate from the identity of the people currently protected by it.
Iran demonstrates how differently Washington speaks when international law supports American policy. The United States invokes the Nuclear Non-Proliferation Treaty to demand that Iran refrain from acquiring nuclear weapons and submit its nuclear material to International Atomic Energy Agency safeguards.
The Trump administration’s legal defense of Operation Epic Fury likewise invokes Article 51 of the U.N. Charter and customary international law to justify military action as individual and collective self-defense.
Washington has also demanded freedom of navigation through the Strait of Hormuz, even though the United States never ratified the U.N. Convention on the Law of the Sea—while also maintaining its navigation provisions reflect customary international law.
Whether each American claim is legally persuasive is a separate question. The administration plainly believes international rules can constrain Iran and justify military force while objections related to the United States or allies remain irrelevant.
What Could Happen After Trump
Trump cannot permanently immunize Netanyahu or Gallant by sanctioning judges.
A future president could revoke the executive order just as President Joe Biden did with Trump’s earlier ICC sanctions in 2021. A later administration could also stop pressuring member states and pursue lawful avenues for sharing evidence or supporting investigations.
U.S. law still restricts direct cooperation, and the United States has no treaty obligation to execute ICC warrants. A future president could not simply surrender someone without domestic legal authority.
The warrants nevertheless remain active, and Netanyahu or Gallant could face arrest if they enter a cooperating member state.
Leaving office would not erase alleged liability because Article 27 of the Rome Statute provides that an official position does not exempt a person from the court’s jurisdiction. The current campaign can obstruct accountability, but it does not guarantee permanent legal protection.
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