Analyzing the United States in International Law: A Case for U.S. Membership in the International Court of Justice (ICJ) and International Criminal Court (ICC)

Felisha Kuo, May 10, 2024

In December 2023, the International Criminal Court (ICC) issued arrest warrants for Putin’s commanders, but the chances for the extradition of the Russian nationals are slim–the Kremlin’s spokesperson Dmitry Peskov says that they would not recognize the warrants as Russia is not a signatory to the Rome Statute.


With the Russian invasion of Ukraine and the Israel-Palestine conflict, international law struggles to find legal avenues to hold individuals in power accountable because the ICC has no jurisdiction over non-member states.  The United States, the self-proclaimed champion of human rights and leader of the democratic world, is no exception.


Created by the Rome Statute in 2002, the ICC is the first treaty-based court that serves to try four specific crimes: genocide, crime against humanity, war crimes, and the crime of aggression. Unlike past tribunals, the ICC has the power to initiate an investigation without the referral of a State under certain circumstances, which makes it more independent from states. Under the Rome Statute, the United Nations Security Council (UNSC) has the power to pause ICC investigations for up to a year. The United States, equipped with veto power as one of the five permanent members of the United Nations Security Council, has the ability to undermine international law. With its veto power, the United States can vote against the ICC from proceeding with a case, which it has done many times.


The United States, despite being heavily involved in the drafting of the Rome Statute, is not a treaty member and thus has been able to evade legal accountability. The question of whether the United States should join the ICC arises as it seeks to hold Russia accountable for its violations of international law. 


Despite being the global superpower with the ability to evade international law, the United States still has stakes to consider when it comes to its image and soft power. Unlike hard power, which illustrates military might and economic wealth, American soft power is its ability in diplomacy to appeal to other states, such as through cultural influences or the attractiveness of American democratic values. Part of what influences the level of soft power is the public image of the State. However, the United States is losing grip on its influence on the global platform. Immediately after World War II, the United States was able to easily push forth its agenda, convincing its allies to support its policies by appealing to them with a vision of democracy and human rights without the use of military force or economic coercion. This is not the case today and the United States should be concerned with the soft war it is losing as its image plummets on the international stage [1].


Historically, the United States has a record of signing treaties and promptly withdrawing or refusing to ratify UN Security Council treaties regarding human rights. Its track record is more than horrific when it comes to human rights violations. For example, the United States lost its seat in the UN Human Rights Council in 2002 after the Bush Administration insisted on constructing a nuclear missile defense system– a flagrant violation of the 1972 Anti-Ballistic Missile Treaty. A few years later,  the U.S. alone abstained from voting in a 2009 UNSC resolution calling for a ceasefire in the war in Gaza. This trend of violating international law and unilateralism continues today as the U.S. repeatedly vetoes the UNSC resolutions calling for a humanitarian ceasefire in Gaza. Egypt’s foreign affairs minister warns that the U.S. “is losing a tremendous amount of credibility in the Arab world” as it continues to support Israel militarily [2]. 


In the international arena, these actions translate to the United States abandoning multilateralism and international law. But even in the glaring hypocrisy of its actions, the past and present United States administrations have been reluctant to join or support the ICC. When first established, the Clinton administration, fearing that the ICC’s jurisdiction would infringe on the U.S.’ sovereignty over its military personnel and citizens, considered the statute incompatible with the U.S. Constitution, further citing an unchecked power and politicization. U.S. hostility towards the ICC grew during the Bush administration. In the same year the ICC started its operations, President Bush signed the so-called “Hague Invasion Act,” which “authorizes the President to use all means necessary to bring about the release of covered U.S. persons and allied persons held captive by… the Court” [3]. The law then takes additional steps to ensure that its troops get immunity from prosecution, threatening the withdrawal of military assistance from countries ratifying the ICC treaty [4]. This obstructs the ICC from prosecuting any United States citizen, rendering international law inapplicable to Americans. 


In addition to the hostility towards ICC investigations concerning the United States, Congress has attempted to obstruct ICC investigations in its allies, such as in 2021 when Secretary of State Antony Blinken stated the United States “firmly opposes and is deeply disappointed” by the decision to open an investigation into the Palestine situation [5].


To regain its soft power, the United States should ratify the Rome Statute. The United States could regain its legitimacy as a legal actor in international law among global actors, and increasing legitimacy is an investment in soft power. Furthermore, by signing the Rome Statute, the United States can help reshape the ICC’s legal infrastructure in the direction of the United States’ interests and address its current critiques of the Court. As the Court’s efficacy depends heavily on the amount of financial and legal resources its member states are willing to contribute, the United States could gain opportunities to explore changes to the Court’s structure.


The ICC operates under the principle of complementarity, giving the state of which the accused is a national priority jurisdiction [6]. It is only when states do not have the infrastructure or the willingness to investigate amid blatant human rights violations the ICC can instigate an investigation. Considering the United States’ well-established military court system, an ICC investigation on U.S. nationals is highly unlikely. Joining the ICC, then, will encourage senior U.S. officials to make more careful choices when it comes to decisions that involve military force. With 750 military bases across eighty different countries, the United States’ large military presence must be accompanied by thorough decision-making as any use of military force could further escalate ongoing conflicts. 


Reflecting on the history of American military adventurism, whether in Vietnam, Iraq, or Afghanistan, most are wars of choice. Given that the choice rests on high-level officials and military personnel, considering the legal liability encourages careful consideration of the human and financial costs of war. It will also encourage better attempts at trialing and self-enforcing military guidelines when it comes to war crimes. 


Take the Iraq War in 2003, where a U.S.-led coalition overthrew the Saddam Hussein government, justifying the intervention by citing evidence for weapons of mass destruction. Seven years and more than $3 trillion U.S. dollars later, the defeat of the Iraqi army signaled the end of the war [7]. However, the U.S.’ supposed evidence of weapons of mass destruction and biological weapons were unfounded. “The Americans lost a lot of credibility from this war,” says Dr. Karin von Hippel, the director-general of the Royal United Services Institute think tank in an interview with BBC. 


The Americans did not just lose credibility in terms of intelligence. Allegations of gross human rights violations in secret detention centers and the indiscriminate cluster bombings against the U.S. followed. Legal experts of international law concluded that the attacks were disproportionate and indiscriminate, violating international humanitarian law which prohibits “attacks which employ a method or means of combat which cannot be directed at a specific military objective,” [8].  


Now, 13 years after the end of the war, the United States has shielded its military officers from international law by staunchly opposing investigation attempts by the ICC. Even in domestic courts, the U.S. has failed to instigate an investigation of high-ranking U.S. officials, and no senior U.S. officials have been trialed or brought to justice. Had the United States considered international legal repercussions under pressure from the ICC before deciding to invade Iraq, the outcome could have involved fewer civilian deaths. ICC membership will also pressure the United States to conduct a more thorough trial of its military officials and learn to avoid fighting another unnecessary war. 


Contrary to these claims, Congress continues to criticize ICC’s legal infrastructure, claiming its unchecked judicial powers infringe upon U.S. sovereignty, making it incompatible with the U.S. Constitution. Some U.S. officials further argue that the ICC is corrupted by increasing politicization against American interests. 


U.S. membership indeed invites the ICC to second guess the judicial and sovereign decisions made domestically in the United States, even under the principle of complementarity. Under the Rome Statute, the ICC has the ability to investigate and prosecute nationals of member states if they deem the initial investigation by the state “non-genuine.” Therefore, it is understandable why current and future administrations refuse membership because part of U.S. national sovereignty is divested to ICC jurisdiction if the U.S. ratifies the Rome Statute. 


Joining the Court then becomes a question of balancing U.S. national sovereignty against respect for international law. If the United States remains adamant about not playing the legal way, then why should other states? U.S. impunity undermines the legitimacy of international courts, and in doing so, degrades world order. By not signing the Rome Statute, the United States demonstrates that impunity is acceptable for a state with military might, and as John Messing writes, “the unjustifiable uses of force hinder the establishment of a legal order to control international violence and coercion” [9]. Ultimately, the United States must decide if it is willing to give up part of its national sovereignty and military adventurism for the sake of improving world peace and justice.


[1] Kokas, Aynne. Mastro, Oriana. “The Soft War That America Is Losing.” Stanford Freeman Spogli Institute for International Studies. January 15th, 2021.

[2] Turak, Natasha. “Biden’s support of Israel leaves him as isolated as Russia on the world stage, analyst says.” CNBC Politics. December 7th, 2023.

[3] “S. 1610-107th Congress (2001-2002): American Servicemembers’ Protection Act of 2001.” Library of Congress. November 1st, 2001.

[4] “U.S.: ‘Hague Invasion Act’ Becomes Law.” Human Rights Watch. August 3rd, 2002.

[5] Antony J. Blinken. “Press Statement: The United States Opposes the ICC Investigation into the Palestinian Situation.” March 2nd, 2021.

[6] “Complementarity principle.” European Center for Constitutional and Human Rights.

[7] Blimes, Linda. “The True Cost of the Iraq War: $3 Trillion and Beyond.” Harvard Kennedy School. September 5th, 2010.

[8] Protocol 1 of 1977 to the Geneva Conventions, Article 51(4)(b). June 1977.

[9] Messing, John H. “American Actions in Vietnam: Justifiable in International Law?” Stanford Law Review, vol. 19, no. 6, 1967, pp. 1307–36. JSTOR. June 1967.