Fearing Justice: Rubio Gets Bolshie About the ICC

Why are they so afraid? The Trump administration, pathologically obsessed about the exaggerated reach of the International Criminal Court, have decided to take to the barricades. In a July 13 media note released by a spokesperson for the US State Department, something akin to a declaration of war was made against the Hague-based tribunal. Secretary of State Marco Rubio was getting bolshie about it, announcing “a sweeping campaign to dismantle the threat posed by [the court] to US sovereignty.” The effort promises to “feature a whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty.” The late Henry Kissinger, who argued most stridently against the establishment of such a criminal court, would no doubt have approved. He, more than most, would have feared some eventual accounting for his own egregious crimes against international humanitarian law while serving the White House.

The alarmist tone of the announcement is palpable. The ICC was seeking “to become an unaccountable global arbiter – positioning itself above and beyond the nation state as a supranational enforcement arm of a globalist bureaucracy empowered to prosecute American servicemen and officials at will.” (This has a whiff of familiarity to it, given that the Department of Justice under Trump’s steering hand has been prosecuting, at will, individuals perceived to have wronged him in the past.)

The media release is filled with careless distortions and ugly inaccuracies, not least in the sovereignty it purports to understand and defend. The ICC, for instance, “claims authority to prosecute and even imprison American servicemen and officials operating on behalf of America’s national interest.” The body claims no explicit power to do so, given that jurisdiction is only exercisable over State Parties. The United States, in company with such states as Russia, China, India and Israel, have not appended their signatures to the Rome Statute. It follows that no such threat is credible except in instances when the service personnel of such countries conduct war on the territory of a State Party. For that reason, arrest warrants have been issued against Israeli Prime Minister Benjamin Netanyanu, his former Defence Minister Yoav Gallant, and Russian President Vladimir Putin. Even then, enforcing such warrants, as the record shows, remains patchy and vulnerable to the political and legal interpretations offered by member states.

US military personnel have, similarly, caught the eye of the ICC in 2020 for its activities in Afghanistan, though the subsequent investigation also focused on alleged crimes committed by the Taliban and Afghan government it replaced. It took only a year for the ICC to essentially abandon the American aspect of the investigation and focus, instead, on the alleged transgressions of the Taliban and the former Afghan government.

Rubio’s opinion piece in the Wall Street Journal is also cratered with an embarrassing inability to understand the role of a tribunal that has the support, however imperfect, of 125 member states. He regards the judges as hailing from “random countries”; the court and its allies as determined to seek “near-unlimited reach, empowered to override the courts and constitutions of the US and other sovereign states – and to prosecute and arrest our citizens.” Failing to mention the shift in focus of the 2020 investigation into alleged infractions against international law in Afghanistan, he took grave exception to the remarks of the chief prosecutor, Fatou Bensouda, that American authorities had been tardy in conducting their own prosecutions. “In effect,” snorts Rubio, “Ms Bensouda was anointing herself the final judge of US military policy and the entire US justice system.” Hardly.

A somewhat hysterical note is struck in Rubio’s assessment of the court’s supporters. Like a sinister fifth column of operatives, the tribunal “is backed and run by a powerful network of leftist nongovernment organizations, smug globalists, and hostile Third World governments united by their enmity towards the US.” For the most part, the Secretary tries to make good the image of the American republic as a bullying, thuggish nation state indifferent to the strictures of law. He cannot understand the fuss made about the extrajudicial murders of alleged “narcoterrorists” in Latin America and the Caribbean, the shoddy practices of the administration in deporting “violent criminals to El Salvador”, or that organisations might wish that “apparent war crimes” committed against Iran by the US might be investigated. “Independence is our birthright,” he pompously asserts. “We don’t intend to trade it for rule by a self-appointed priesthood of ‘international law.’” It was therefore incumbent that Washington work along with allies to “dismantle the ICC – brick by brick, if necessary.”

This dismantling effort seems hyperbolic. The Trump administration has already sought to blunt the court’s functions and hound its officials. Even before Rubio’s announcement, the administration has been aggressively seeking to stem the reach of the court and the effectiveness of its officials. On February 6, 2025, for instance, President Donald Trump issued Executive Order 14203, allowing the sanctioning of any person or organisation engaged in any efforts of the ICC “to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality.” Protected persons include, among others, current and former members of the US Armed Forces; current or former elected or appointed officials of US government; and any other person currently or formerly employed or working on behalf of the US government. The personnel of US allies also fall within the definition.

The sanctions listed in the order included the blocking of property and assets within the United States “as well as the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members, as their entry into our Nation would be detrimental to the interests of the United States.” ICC Prosecutor Karim Khan was the first to be designated as a sanctioned individual, though the list would swell to include members of the judiciary, including Second Vice-President Reine Alapini-Gansou from Benin, Uganda’s Solomy Balungi Bossa, Peru’s Luz del Carmen Ibáñez Carranza and Slovenia’s Beti Hohler.

The Open Society Justice Initiative accurately notes the effect of such sanctions, being “tantamount to a financial death penalty”. These entail the freezing of US assets in bank accounts, a denial of access to credit cards, relevant online platforms, banking services and health insurance, and the inability to attend speaking engagements in the US. Three of the sitting judges – Bossa, Alapini-Gansou and Canada’s Kimberly Prost are seeking declaratory and injunctive relieve against Executive Order 14203 in the US District Court for the Southern District of New York.

The State Department media note suggests more of the same, flavoured with a villainous menace. The entire US government diplomatic corps is to become a public relations arm “highlighting the abuses of the ICC and the risks posed to Americans” and urging member states to withdraw from the Rome Statute. Nations with partnering arrangements with American law enforcement and the military, and those enjoying “the benefits of the US security umbrella” will also be pressed “to reject the ICC’s purported authority to prosecute American officials and servicemen.” States refusing to reject the authority of the ICC while still relying on American assistance would be subjected to greater scrutiny, while countries not a party to the Rome Statute would be encouraged to “leverage their diplomatic networks to take similar actions alongside us.” ICC personnel would be subjected to continued visa revocations and travel bans, while the tribunal and “affiliated organizations” will be subjected to further sanctions. It will be a time for war criminals and offenders of international law to rejoice.

All institutions, supposedly underpinned by protocols and principles, are at the mercy of Trump’s broad reading of executive power, one fickle and petulant. His office has also become a source of obscene self-enrichment, inuring this administration to giddying levels of corruption. “I’ve made money, I’ve made a tremendous amount of money, more than I would have ever thought I would have made,” he boasts. For a person who relishes breaching laws and flouting regulations, it is little wonder he, along with his insufferable cronies, have such an animus against a world court that, for all its faults and blemishes, remains a worthy project in international law and human rights.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University. Email: bkampmark@gmail.com

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