In Context: Analyzing Secretary Rubio’s International Criminal Court Op

Earlier this week, U.S. Secretary of State Marco Rubio announced in a Wall Street Journalop-ed, together with video and press statements, that the United States would be undertaking an effort to dismantle the International Criminal Court (ICC), “brick by brick if necessary.” We and others responded to this statement here.

The separate purpose of this article is to address the specific statements in the op-ed (quoted initalics below). Writing from our positions as international law scholars, we address some of the factual claims or underlying assumptions in the article in a way that we hope will be helpful for the public, journalists, and others seeking to make sense of this announcement.

Why We’re Dismantling the International Criminal Court byMarco Rubio
Wall Street Journal,Eastern edition; New York, N.Y.. 14 July 2026: A15.  

Most of us would struggle to imagine a world in which U.S. soldiers, police officers, Border Patrol agents and elected leaders could be dragged before an international court, tried by judges from random countries across the globe, found guilty under international laws we neither consent to nor control, and then imprisoned thousands of miles from America.

But that is what the International Criminal Court now claims the power to do.

• This is a rhetorical ploy meant to convince the public that something quite ordinary is outrageous. The International Criminal Court can exercise jurisdiction over U.S. persons only with respect to their conduct on the territory of a State that has accepted the Court’s jurisdiction – in other words, a state that has a clear sovereign prerogative to enforce the law within its borders.  Rubio himself has repeatedly emphasized this very point with respect to foreign nationals in the United States: when you are on another country’s soil, you are subject to its criminal law and the jurisdiction of its courts. When the ICC exercises jurisdiction over the citizens of a State that is not party to the Rome Statute (the treaty establishing the Court) on the basis of those persons’ conduct on the territory of a State that is party to that system, it acts on an extension of this very elementary principle.
• If anything, the ICC’s basis for authority is even stronger. Contrary to Rubio’s implication, its jurisdiction is limited to international crimes grounded in rules to which the United States hasconsented and that it has invoked to prosecute, or support the prosecution of, foreign nationals, as far back as NurembergandTokyo, through the tribunals for crimes perpetrated in Rwanda,former Yugoslavia, and Sierra Leone in the 1990s and 2000s, in domestic U.S. courts today, and even in certain situations at the ICC itself, such as those relating to Libya, Sudan, and Ukraine.
• There are enduring debates about the status-based immunities of sitting foreign ministers and heads of state and government, but those are distinct from the territorial jurisdiction principle Rubio is attacking here. If he instead means to imply that all state officials are always immune from prosecution for their official acts by other states or international tribunals – as the U.S. has sometimes asserted on this issue – that implication wouldcontradictdecadesof U.S.practiceregardingcrimescommitted by foreign officials.

The ICC was born at the turn of the century. At first, it was marketed as a narrow backstop to prosecute the gravest crimes. Now the ICC and its allies seek a standing world tribunal with near-unlimited reach, empowered to override the courts and constitutions of the U.S. and other sovereign States — and to prosecute and arrest our citizens.

• The ICC was always agreed as a “standing” tribunal, and it is not claiming new powers now. The preamble to the Rome Statute expresses a determination to “establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.”
• The power to exercise jurisdiction over acts of nationals of non-State parties committed in the territories of State parties is not something that the ICC has just conjured up. The issue was discussed extensively in the negotiations that led to the Court, and it has been in the Rome Statute from the beginning (Article 12(2)). The idea that this somehow contradicts what the ICC was originally set up to do is simply false.
• Nor does the notion that the ICC is  “ a narrow backstop to prosecute the gravest crimes” contradict the idea of its territorial jurisdiction. The Court’s jurisdiction islimited to categories – genocide, war crimes, crimes against humanity, and the crime of aggression (Article 5) – recognized as the gravest international crimes by the United States and invoked by it or by tribunals acting with its essential support to try perpetrators from States that did not consent to those tribunals’ jurisdiction. And the Court does function as a backstop. Under the principle known as “complementarity” (Article 17), it will not act if a State with jurisdiction (including a non-party) is investigating or prosecuting a case (or has done so) in a manner consistent with a genuine willingness and ability to bring perpetrators to justice, whether or not the ICC or its prosecutor agrees with the outcome of those investigations or prosecutions.
• The ICC does not claim “near-unlimited reach.” It claims jurisdiction over acts that take place on the territory of a State Party or by that State’s nationals. To claim that a State has no criminal jurisdiction over what takes place in its ownterritory contradicts the most basic principles of international law. Rubio does not, and would never, agree to the idea that the United States lacks criminal jurisdiction over acts by foreigners on its territory.

Americans never agreed to any of this. 

• The criminal jurisdiction of other States over what takes place in their own territory does not require that Americans agree. There is no sovereign prerogative to commit crimes on the territory of another State. Imagine that Putin would say that Ukraine has no jurisdiction over crimes his forces commit in Ukraine because “Russians never agreed to any of this.”

Both of our major political parties opposed the prospect of handing a distant global court the power to prosecute and jail our own citizens. President Clinton refused to submit the Rome Statute (the ICC’s founding charter) to the Senate for ratification due to his “concerns about significant flaws in the Treaty.” 

• This is a very partial description of the U.S. “bipartisan” approach towards the Court. The United States supported ICC jurisdiction in Sudan and Libya on the basis of Security Council referrals overriding those states’ objections. It facilitated the transfer of wanted criminals fromUgandaandtheDRC to ICC custody. And, most pertinently here, itsupported the Court’s arrest warrants for Vladimir Putin – a sitting president of a non-party State – as well as numerous other Russian officials, all on the basis of territorial jurisdiction over crimes committed in Ukraine.
• Indeed, during his time in the U.S. Senate, Rubio himself co-sponsored Senate Resolution 546, which described the ICC as “an international tribunal that seeks to uphold the rule of law,” endorsed Ukraine’s acceptance of ICC jurisdiction for the purpose of investigating crimes committed by Russian forces on its territory, and urged other states to petition the ICC or another appropriate tribunal to investigate war crimes committed at the direction of Putin, his subordinates, or their proxies. In short, just four years ago, Rubio strongly endorsed precisely the kind of ICC activity he now decries in a directly analogous situation. The contradictions speak for themselves.

Two years later, a bipartisan Senate supermajority passed the American Servicemembers’ Protection Act, authorizing the president “to use all means necessary” — including military force — to prevent the ICC from detaining or arresting Americans.

• There is no ICC police force that will enter the United States to arrest anyone. The ICC depends entirely on the cooperation of States for the arrest and transfer of wanted persons. States may only engage in arrest on their own territory or in cooperation with the State on whose territory the arrest occurs. Given that, a U.S. person could only conceivably be arrested or detained on the basis of an ICC warrant while abroad, on the territory of a cooperating State.
• If a U.S. president were to use military force to prevent the lawful detention of an American citizen in a foreign country – on the basis that the individual committed crimes on the latter’s territory or on the territory of a third state – this would entail a flagrant violation of international law.

Americans found themselves in the crosshairs anyway: In 2020 the ICC launched an investigation into what chief prosecutor Fatou Bensouda of Gambia described as “war crimes by members of the United States armed forces” in Afghanistan, declaring that the U.S. government hadn’t prosecuted enough American soldiers to satisfy the court. In effect, Ms. Bensouda was anointing herself the final judge of U.S. military policy and the entire U.S. justice system.

• Prosecutor Bensouda’s request to launch the investigation relied heavily on the findings of the U.S. Senate Select Committee on Intelligence in identifying patterns of CIA torture. In other words, the investigation was substantially grounded in evidence from the United States’ own findings about its own conduct. That conduct qualifies straightforwardly as a war crime.
• A prosecutor applying to open an investigation (and doing so with judicial approval) does not entail “anointing herself the final judge” of anything. The next step would have been to bring cases. Had Bensouda done this, the United States would have had an opportunity to object on the basis that it had investigated or prosecuted the relevant cases genuinely. If it had, the ICC would have been required to defer under the principle of complementarity. A panel of ICC judges would have reviewed that claim. Had an ICC case been approved, the prosecutor would then have needed to prove the case beyond a reasonable doubt before a panel of independent judges.
• And yet, none of these steps took place because the investigations never materialized into actual cases. Indeed, Bensouda’s successor, Karim Khan, decided to focus his “Office’s investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (‘IS-K’) and to deprioritise other aspects of this investigation” (emphasis added). Despite Rubio’s attempt to whip up alarm, no U.S. person has been charged, arrested, or tried. There is no immediate prospect that one will be.

The Afghanistan investigation was only the opening move in the assault against American self-government. The ICC is backed and run by a powerful network of leftist nongovernment organizations, smug globalists, and hostile Third World governments united by their enmity toward the U.S.

• For its first two decades, the Court did not issue a single arrest warrant for a person outside of Africa. In the four years since, it has expanded its activities, but it remains focused almost exclusively on situations in the Global South. The predominant critique of the ICC since its founding has come from exactly the constituencies Rubio claims are running it  – Global South governments and human rights organizations – who have argued that the Court disproportionately targets those regions while ignoring Western conduct. Notably, the States providing most backing and financing to the ICC are America’s key allies in NATO and other Western democracies.
• Rubio’s central complaint, stripped of its populist framing, appears to be that the Court would have the temerity to investigate Western crimes at all. In this respect, he is channeling the energy of the late Senator Lindsey Graham, who reportedly exploded at the ICC Prosecutor for his investigation of Israeli officials, insisting the ICC is only “for Africa and thugs like Putin.”
• Rubio appears also to be following Trump in contrasting cooperation through international organizations with “self-government.” However, states seek international cooperation precisely to protect their self-government against threats or global problems that they can’t address alone. ICC States Parties have granted the Court territorial jurisdiction in large part to draw on that cooperation to enhance the protection of their people against atrocities, including when perpetrated by the agents of outside states.

In the second Trump administration, these calls have continued to grow. Last year, major activist groups urged high-ranking international officials “to take immediate and meaningful action” against the Trump administration’s deportations of violent criminals to El Salvador. Months later, a former ICC chief prosecutor declared that President Trump’s strikes against narcoterrorists amounted to “a crime against humanity” and should be treated as such under international law — a line that was echoed by United Nations leaders, and major leftist nongovernmental organizations, Democratic Party officials and politicians. In March, the Washington-based Democracy for the Arab World Now urged the Iranian regime to request an ICC investigation of “apparent war crimes” committed by American personnel.

• This passage portrays genuine and grave concerns regarding the Trump administration’s policies as outrageous and not even worthy of debate. Those credibly characterizing the boat strikes as crimes against humanity include not only a former ICC prosecutor, but also a former attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State. Hardly radical.
• Rather than pursuing this rhetorical strategy, the administration should cease unlawful practices immediately and explain why it thinks any of the relevant actions are lawful.
• Separately, it should be clarified that there is no indication that any of these situations is currently close to an ICC investigation. The fact that a credible case can be made for such an investigation is damning, as is only underscored by Rubio’s failure to address the substantive allegations.

U.S. efforts to push back against the ICC’s illegitimate interventions have been framed as a further reason for the ICC to target Americans. When 12 U.S. senators wrote to the ICC prosecutor about their concerns, the prosecutor’s office accused them of crimes. When Mr. Trump imposed sanctions against ICC personnel, a former head of Human Rights Watch said that “all 125 ICC member states would have a legal duty to arrest him were he to show up.”

• This is again classic populist rhetoric, which intentionally exaggerates the power of international NGOs in order to entrench the narrative of unaccountable global elites that control the world. Plainly, a statement from Human Rights Watch creates no meaningful risk of arrest of a sitting U.S. president.

It is only a matter of time before the ICC begins making good on these threats. Border Patrol agents working to remove violent criminals from our country, U.S. Marines risking their lives to restore order in the Western Hemisphere, federal prosecutors working to dismantle terror networks plotting attacks on the American homeland — all would face the constant risk of persecution for the “crime” of defending our country.

• There is no crime of “defending” a country. The ICC has jurisdiction only over specific acts prohibited by international criminal law – conduct that rises to the level of war crimes, crimes against humanity, or genocide. A soldier or law enforcement officer who follows the laws of war has nothing to fear from the ICC.
• Even for conduct that does violate international criminal law, the ICC has jurisdiction only where those crimes occur at least in part on the territory of a state that has consented to its jurisdiction, and where the defendant’s own country is not already investigating or prosecuting.
• The implication that everything is permitted just because you are purportedly defending your country runs counter to the very idea of international criminal law, which the United States has supported when applied to others. War crimes, crimes against humanity, and genocide are strictly prohibited, whether inflicted defensively or as part of aggression.

The ICC’s interfering with American military and law enforcement operations isn’t only a grave overreach of its purported authorities. It would mean the death of the U.S. as a sovereign and independent nation. 

• Again, a State’s territorial jurisdiction over acts committed by foreigners in that State’s own territory has never been viewed as a violation of anyone’s sovereignty and independence. It is an assertion of one of the most basic sovereign prerogatives—one the United States would never cede. Precisely on this basis, for example, the United States prosecuted German soldiers for unlawful conduct on American soil in the seminal Ex Parte Quirin case.

Our decision and our people would be at the mercy of the ICC and its collaborators in the “international community.” To accept the ICC is to surrender control of our national destiny.

• The quotation marks disclose the administration’s hostility to the idea that nations share common interests and have to work together to address problems they cannot solve alone.

Perhaps more polite and compliant nations could make their peace with that arrangement. But this is America. Our forefathers fought a revolution against a foreign power “transporting us beyond Seas to be tried for pretended offences.” 

• By the logic in this piece, the nascent United States would have had no jurisdiction against British soldiers committing crimes during the American Revolutionary War. The Founders would not have agreed.

Independence is our birthright. We don’t intend to trade it for rule by a self-appointed priesthood of “international law.”

• Again, the quotation marks imply disdain towards the mere idea of international order. This approach diminishes the ability of the United States to condemn violations by others, such as Iranian violations in the Strait of Hormuz, Russian atrocities in Ukraine, or any future breaches of rules the United States may one day need to invoke in its own defense.

The Trump administration will always protect American service members from this threat. 

• The way to protect service members from international liability is, first, to follow international law, and, second, to ensure that genuine domestic accountability exists in cases in which it is violated.

The U.S. is launching a diplomatic campaign with a simple message — sovereign states over globalism. Those who benefit from American security must not stand idly by while those who provide that security are targeted. This is only the beginning. Using all the tools at our government’s disposal, working beside every ally with whom we can make common cause, we will dismantle the ICC — brick by brick, if necessary.

• This is unlikely to succeed in the long run, which would only enhance the perception of the United States’ declining global power. U.S. allies are likely to double down – and have been doing so – as they see establishing and engaging with bodies such as the ICC as part of their ownsovereign prerogative. Among other things, it is an important component of the response to Russian atrocities in Ukraine. Overstating one’s objectives, as the Iran War shows, ends up exposing one’s own weaknesses and vulnerabilities.

FEATURED IMAGE: The building of the International Criminal Court in The Hague in 2019. (Photo by OSeveno