America’s Ugly History with the International Criminal Court

by Ted Snider Posted onMay 31, 2024

On May 20, the chief prosecutor of the International Criminal Court announced that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant as well as for Hamas leaders Yahya Sinwar, Ismail Haniyeh and Mohammed Diab Ibrahim Al-Masri.

Officials in Washington lashed out against the court and began preparations to pressure the ICC to back off on pursuing the arrests. Netanyahu and Gallant, the U.S. insisted, should be left alone or left to Israel’s courts.

The Hamas officials should be held accountable, according to the State Department, but not by the ICC. “The Israeli government should hold them accountable on the battlefield. And if not a battlefield, then a court of law,” State Department spokesperson Matthew Miller said. “We absolutely believe that Hamas should be held accountable. That could either be through the prosecution of the war effort by Israel. It could be by being killed. It could be by being brought to justice in an Israeli court.”

Congress is looking to take the lead in punishing the ICC. House Speaker Mike Johnson said, “Congress is reviewing all options, including sanctions, to punish the ICC and ensure its leadership faces consequences if they proceed.”

During a Senate Foreign Relations Committee, Secretary of State Antony Blinken was asked if the White House would cooperate on legislation that “includes the question of the ICC sticking its nose in the business of countries that have an independent, legitimate, democratic judicial system.” Blinken responded that he is “committed to doing that.” He added, “We want to work with you on a bipartisan basis to find an appropriate response” and that “there’s no question we have to look at the appropriate steps to take to deal with, again, what is a profoundly wrong-headed decision.”

Blinken also told the Senate Appropriations subcommittee he would “welcome” working on “bipartisan” sanctions against the ICC. However, the White House may be considering other steps to deal with the ICC that do not include sanctions.

On May 28, White House spokesperson John Kirby said that sanctions were “not the right answer” to deal with the ICC arrest warrants. It is not that the White House would not punish the ICC, but that “Sanctions on the ICC are not an effective or appropriate tool to address U.S. concerns,” White House press secretary Karine Jean-Pierre said, adding that the White House “will work with Congress on other options to address the ICC overreach.”

Still, the White House remains firmly committed to thwarting the ICC deliberation into issuing an arrest warrant for Netanyahu. “Let me be clear,” Biden said, “We reject the ICC’s application for arrest warrants against Israeli leaders.”

Washington has centered its argument on the grounds that a democratic nation’s legal system should be given priority to act first. Marjorie Cohn, emerita professor of law at Thomas Jefferson School of Law and dean of the People’s Academy of International Law, told me that “the ICC operates under the principle of ‘complementarity.’ That means the Court will assume jurisdiction over a case only if the home country of the accused is unable or unwilling to hold him legally accountable.”

The White House also argued that Israel is not a member of the ICC, so the court lacks jurisdiction over Tel Aviv. Additionally, the Biden administration said that because the U.S. is not a member, it should not have to support or follow the court.

But, the U.S. fully supported the recent ICC arrest warrant for Russian President Vladimir Putin over actions taken in Ukraine. Russia and Ukraine are also not members of the ICC.

Biden endorsed the arrest warrant for Putin. “Well, I think it’s justified,” the US leader said. “But the question is – [the ICC is] not recognized internationally by us either. But I think it makes a very strong point.” Blinken urged all member nations of the ICC to comply with Putin’s arrest warrant. Asked if European allies should “turn over” Putin, Blinken answered, “I think anyone who’s a party to the court and has obligations should fulfill their obligations.”

A reporter asked if the administration’s policy for Israel would impact the Defense Department’s work “with the ICC to provide evidence about Ukraine.” Defense Secretary Lloyd Austin answered, “Regarding the question of whether or not we’ll continue to provide support to the ICC with respect to crimes that are committed in Ukraine, yes, we continue that work.”

The separate standard for friends and enemies has consequences beyond the ICC. It nourishes the perception of the global majority and the newly emerging multipolar world that the U.S. has abandoned the universal application of international law for the self-serving application of the rules-based order. In doing so, it further damages the United State’s standing in the world and its pursuit of hegemony.

The ICC had jurisdiction to issue an arrest warrant for Putin because Ukraine accepted ad hoc jurisdiction of the court in 2014, meaning that crimes against humanity or genocide, but not crimes of aggression, committed on Ukrainian territory can be tried by the ICC.

But Palestine is an observer state in the UN General Assembly and also granted the ICC jurisdiction over its territory, including Gaza. On February 5, 2021, the ICC ruled that it does have jurisdiction over Palestine. What’s more, unlike Ukraine, Palestine is a signatory to the ICC’s Rome Statute.

The U.S. does not recognize the ICC. In 1998, 160 countries attended a conference to formulate the Rome Statute of the ICC. Many of those countries advocated for universal jurisdiction that would give the new court jurisdiction over crimes committed anywhere in the world. The U.S. blocked that universal jurisdiction and insisted that the ICC have jurisdiction only over crimes committed in countries that voluntarily signed the Rome Statute. This was a loophole the US planted for future exploitation.

In 2000, President Clinton signed the Rome Statute but did not send it to the Senate to be ratified. Two years later, President George W. Bush withdrew the signature. That ensured that the ICC could not prosecute Americans for war crimes.

That has always been an important concern for the United States. Current and former officials told The New York Times in 2023 that “American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans.” Following the decision to seek an arrest warrant for Netanyahu, Mike Johnson said, “If the ICC is allowed to threaten Israeli leaders, ours could be next.”

To ensure that never happens, in 2002, the Bush administration enacted the American Servicemembers’ Protection Act, or the “Hague Invasion Act,” as it came to be known. The act authorizes the US to use “all means necessary… to bring about the release of covered U.S. persons and covered allied persons held captive by, on behalf, or at the request of the Court.”

To be doubly sure, the Act banned “the provision of US military assistance . . . to the government of a country that is a party to the court.” That prohibition was extended in 2004 by the Nethercutt Amendment” to include several other types of economic assistance. NATO countries and major non-NATO allies were exempt. For all other countries – unless the President deemed it important to the national security of the United States – there was only one route to exemption. That was by entering a Rome Statute Article 98 agreement with the U.S., ensuring that they agree not to surrender Americans to the ICC, “preventing the International Criminal Court from proceeding against United States personnel present in such country.”

WikiLeaks revealed hundreds of cables that show how the US used the threat of sanctions to force countries into Article 98 agreements. A confidential December 2002 U.S. cable from Honduras states, “The US will help those countries that sign Article 98 agreements and cut aid to those that do not.”

The US sought agreements from 77 countries who joined the ICC “to make extraditions of Americans to the Hague impossible.” They exerted significant pressure. Romania’s foreign minister said he “can’t remember anything they put so much weight or interest into.”

The EU told member states that entering into an Article 98 agreement with the U.S. “would be inconsistent” with their ICC obligations. Human Rights Watch said the U.S. goal was “to exempt US military and civilian personnel from the jurisdiction of the ICC” and that signing the “impunity agreements… would breach their legal obligations under the Rome Statute.” In the end, at least 100 countries signed Article 98 agreements with the United States.

The long list of sanctioned countries eventually boomeranged against the United States, leading countries to look to Russia and China for help and impeding the U.S. wars on terror and drugs. They were gradually dropped.

In 2020, when the ICC tried to investigate American torture of terrorism detainees, the U.S. imposed sanctions on court officials. The Biden administration revoked the sanctions order in 2021. When the ICC resumed its investigation into Afghanistan, it decided to focus on the Taliban and the Islamic State in Khorasan Province and allow alleged U.S crimes to “take a back seat.”

Whatever the U.S. intent is – whether it is to protect its friend or itself – the hypocritically selective application of its policy undermines the universality of international law. It also reinforces the perception of the global majority and the newly emerging multipolar world that the U.S. is no longer a sponsor of international law but of a rules-based order that is invoked when it suits them or their friends and is not invoked when it doesn’t.

Ted Snider is a regular columnist on U.S. foreign policy and history at Antiwar.com and The Libertarian Institute. He is also a frequent contributor to Responsible Statecraft and The American Conservative as well as other outlets. To support his work or for media or virtual presentation requests, contact him at tedsnider@bell.net.