The highest compliment that can be paid to the International Criminal Court is that the Trump administration is terrified of it. Secretary of State Marco Rubio expressed that fear this week by declaring that the administration would use “all the tools at our government’s disposal” to “dismantle” the ICC.
“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.,” Rubio claimed in a Wall Street Journal op-ed on Monday. He warned that ICC investigations into U.S. officials’ alleged crimes “would mean the death of the U.S. as a sovereign and independent nation.”
This line of attack is less about American interests than the personal interests of many top Trump administration officials. Thanks to the Supreme Court and Trump’s pardon power, they might never be held accountable in U.S. courts for their alleged crimes after Trump leaves office in 2029. Now they seek total impunity for themselves—and other war criminals around the world.
The ICC, which is based in The Hague, came into being in 2002 after more than 100 countries ratified the Rome Statute. Under that treaty, the court has jurisdiction to prosecute and try people for committing various crimes under international law, ranging from war crimes to genocide. Most of its prosecutions to date have targeted dictators and warlords in Africa and Asia.
Prior international tribunals, like the ones in Cambodia, Rwanda, and the former Yugoslavia, tended to be ad hoc affairs under the aegis of the United Nations. (The U.N. has its own court, but it is designed for arbitration between countries, not criminal prosecutions.) By establishing the ICC, world leaders hoped to create a permanent mechanism for punishing crimes against humanity and crimes against peace.
The United States helped build most of the post–World War II infrastructure for international law and diplomacy. But it has always had an uneasy relationship with the ICC. The U.S. is not a party to the Rome Statute, so the court does not have automatic jurisdiction over alleged offenses committed by U.S. officials. As Rubio noted in his op-ed, President Bill Clinton declined to submit the treaty to the Senate for approval during his tenure because it was unlikely to achieve the two-thirds majority needed for ratification.
In 2002, as the Iraq War loomed, Congress went even further and enacted the American Service-Members’ Protection Act, or ASPA. It generally forbids the executive branch from cooperating with ICC investigations or prosecutions and restricts military cooperation with countries that are parties to the Rome Statute, aside from major U.S. allies. Since past administrations have been generally skeptical of the ICC, this restriction hasn’t really mattered in practical terms.
The most extraordinary provision of ASPA is Section 2008, which gives the president a free-standing authorization to use military force to free anyone “detained or imprisoned” by either the ICC itself or by a country at the ICC’s request. This authorization led many observers to refer to the 2002 law as the “Hague Invasion Act,” since it essentially allows the president to attack the Netherlands if a U.S. official is ever arrested by the court.
As the law’s real title suggests, U.S. opposition to the court has been framed as a way to protect American soldiers from being tried and convicted by the ICC if they commit war crimes. Rubio made similar arguments in his op-ed, warning of the dire possibility that the ICC could bring charges against a wide range of U.S. civil servants.
“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,” he wrote. “But that is what the International Criminal Court now claims the power to do.”
I don’t think Rubio and other top Trump officials would be happy if some Marine lance corporal were prosecuted by the ICC—especially given the president’s history of pardoning soldiers accused of war crimes. But it is far more likely that they are worried about their own fates after the administration ends. More than a few top Trump officials have good reason to worry about their own legal culpability before the ICC—and the effect it could have on their post-administration life—rather than that of the average American cop or soldier.
Five years ago, it would have been unthinkable for an American president or any of his subordinates to face a serious threat of prosecution from the ICC. As I noted earlier this year, however, Trump has so thoroughly alienated U.S. allies and undermined U.S. prestige overseas that it might now be plausible. Trump himself said he was bound only by “my own morality” as president when asked about international law, adding, “I don’t need international law.”
At the time, I noted that the likeliest grounds for an ICC prosecution would be Trump’s military strikes against alleged drug boats in South and Central America. Since that article went to press, Trump also launched an illegal war against Iran. U.S. and Israeli forces assassinated Supreme Leader Ali Khameini and other top civilian leaders in the opening wave of strikes and severely damaged Iran’s military capabilities.
Since the war began, Trump has only deepened his own potential culpability under international law. On February 28, the first day of the war, a missile strike killed more than 100 children at a school in Minab; a preliminary military investigation concluded that the U.S. was likely responsible. Trump has also repeatedly threatened to intentionally bomb civilian infrastructure—bridges, power plants, dams, and so on—as part of the military campaign. In April, he even threatened that a “whole civilization will die tonight” unless Iran reopened the Strait of Hormuz, which can be credibly interpreted as a call for genocide.
Trump’s desperation to end the Iran war and reopen the Strait of Hormuz, combined with his inability to stick with a sustainable diplomatic solution, could prompt him to translate these threats into reality. There is no statute of limitations on war crimes or crimes against humanity. Genocide, attempted genocide, and conspiracy to commit genocide are illegal under both U.S. and international law.
When Trump’s presidency ends, Americans will face one of three choices. The first one is to prosecute Trump officials through the federal courts, as the Biden administration attempted from 2021 to 2024. Those efforts for accountability failed for multiple reasons, but none was greater than the opposition from right-wing federal judges.
Judge Aileen Cannon, a Trump appointee with a track record of highly favorable rulings for him, torpedoed special counsel Jack Smith’s prosecution of Trump for absconding with classified documents to Mar-a-Lago. The Supreme Court’s conservative majority then ruled in 2024 in Trump v. United States that presidents had “absolute immunity” from criminal prosecution for their official acts.
It is hard to overstate the damage that Trump v. United States has done to the American constitutional order. In the short term, it gave Trump a blank check to engage in rampant corruption and criminality during his second term. In the long run, it has transformed the presidency into a dictatorship. The ruling has no basis in the Constitution’s text or historical practice; Chief Justice John Roberts more or less conjured it out of thin air. It is also a blasphemy against this nation’s founding ideals of virtuous self-government.
Nonetheless, it remains a binding ruling for lower-court judges and would likely forestall any serious attempt to prosecute Trump for his crimes. (Whether “presidential immunity” would extend to other executive branch officials is a disturbing question that the court has not yet had a chance to answer.) Unless Democrats are able to pack the court in 2029, this door will effectively remain closed.
The second option would be to prosecute Trump officials through the ICC. This option is hardly ideal. Rubio cited the Declaration of Independence as one reason for opposing ICC jurisdiction. Among the Founders’ complaints against the British government was “transporting us beyond seas to be tried for pretended offenses.” Prior to the Revolution, British colonial officials would circumvent friendly American juries by holding their trials in England instead. “Independence is our birthright,” Rubio wrote. “We don’t intend to trade it for rule by a self-appointed priesthood of ‘international law.’”
As usual, he overstates his case. The Founders rejected the British Empire, but they had great respect for what was known as the “law of nations” in the eighteenth century, which later became known as international law. Foreign legal scholars like Hugo Grotius and Emmerich de Vattel had a strong influence on the Framers’ thinking. Among the powers granted to Congress by the Constitution is the power to “define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” The Framers’ design was for such crimes to be prosecuted by American courts, but thanks to the “presidential immunity” ruling, the Supreme Court has likely made it impossible to do so.
The third door is, essentially, what Rubio asks of Americans and the world now: to do nothing. The Trump administration is seeking the ability to kill, bomb, and destroy around the world without fear of ever being held accountable for it. Moreover, by attacking the ICC as an institution, it wants to enable other countries to murder, sack, and pillage without fear or hesitation. The true goal is not national sovereignty or self-government, but personal criminal impunity.
Eighty years ago, in the German city of Nuremberg, Justice Robert H. Jackson delivered his opening remarks at the first true international tribunal for war crimes. Nothing like it had ever existed before, he noted, but humanity had no choice but to create it. “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated,” he told the court.
Survival, in this sense, is not measured by bombs or casualties but by moral principles. Trump’s crimes to date do not equal the ones that Jackson sought to punish, of course, but the principle still holds true. If the president of the United States can commit crimes at will without any hope of consequences or accountability, then the rule of law ceases to exist and the Enlightenment is over.
