International Criminal Court

The treaty known as the Rome Statute created the International Criminal Court (ICC) in 2002 as a court of last resort for the prosecution of individuals accused of the most serious international crimes, including genocide, war crimes, and crimes against humanity. The Rome Statute largely restricts the ICC to pursuing cases in which the nations with jurisdiction are unable or unwilling to conduct their own proceedings.

The ICC, which is not part of the United Nations, is headquartered in The Hague. There are currently 123 states parties to the ICC, meaning these countries have ratified or acceded to the Rome Statute. Each country has an equal vote to elect the court’s prosecutor and judges. In recent years, a handful of ICC members that are close U.S. allies – Japan, Germany, the United Kingdom, France, Italy, Canada, and Spain – have contributed more than half the ICC’s approximately $200 million annual budget.¹

Since the ICC’s founding, every U.S. administration, both Democrats and Republicans, have refused to ratify the ICC or be otherwise bound by the Rome Statute, in part because they feared the ICC’s politicization and misuse.² The U.S. government provides no funding to the ICC. China, India, Israel, and Russia are other countries that have chosen not to join.

ICC Prosecutor Fatou Bensouda, whose term expired on June 15, 2021, has been replaced by Karim Khan, a British attorney who previously headed a UN investigation into war crimes committed by the Islamic State. Khan will serve a nine-year non-renewable term as ICC prosecutor.

During her nine-year term as ICC prosecutor, Bensouda pursued politicized investigations of the United States and Israel for alleged war crimes that fall outside the ICC’s mandate because Israel and the United States are not parties to the ICC. The Trump administration responded by imposing sanctions on Bensouda and one of her aides.³ The Biden administration lifted those sanctions in April 2021.⁴

The Military Coalition, an American organization representing more than 5.5 million current and former U.S. service members, warned that the ICC investigation of alleged U.S. war crimes relating to Afghanistan “could lead to the arrest, prosecution, and detention of American military personnel and veterans in foreign countries.”⁵

The Biden and Trump administrations,⁶ former Obama administration officials in charge of ICC and detainee issues, and more than 330 members of Congress from both parties have characterized these investigations as illegitimate and opposed them.⁷ The Biden administration on April 2, 2021, stated: “We continue to disagree strongly with the ICC’s actions relating to the Afghanistan and Palestinian situations. We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.”⁸

Bill Lietzau, deputy assistant secretary of defense for detainee policy during the Obama administration, described how a dozen different U.S. government investigations reviewed the allegations currently before the ICC that military or CIA personnel tortured detainees. According to Lietzau, the United States investigated “every allegation of abuse for which there is credible information,” and “no country has ever self-investigated or self-reported its detention policies and practices more than the United States.”⁹

Ambassador Stephen Rapp, who served as President Obama’s ICC point person from 2009 to 2015, asserted that the allegations against U.S. personnel in Afghanistan are not legally admissible in the ICC, because “the U.S. had undertaken domestic accountability processes,” and because “the allegations against Americans did not reach the gravity threshold.”¹⁰ The ICC’s Rome Statute specifies that a case is “inadmissible” when “the case is not of sufficient gravity.”

In the ICC case involving Israel, Bensouda claimed ICC jurisdiction over alleged Israeli war crimes because they occurred in the Palestinian Authority, which the ICC has accepted as a member. However, Rapp and Ambassador Todd Buchwald, Rapp’s successor, made a detailed joint submission to the ICC in March 2020 explaining why the prosecutor’s reasoning that Palestine qualifies as a “state” under the treaty was “fundamentally flawed.”¹¹ Several European governments made similar submissions asserting that the ICC “does not have jurisdiction” to proceed against Israel in this case.¹² Meanwhile, Israel prepared a list of several hundred current and former officials who could be subject to arrest abroad if the ICC moves forward against it.¹³

The ICC has other problems, too. The final report of an Independent Expert Review of the court, commissioned by the ICC’s member states and published in September 2020, sharply criticized the court for inefficiency, lack of focus, and senior officials’ rampant bullying and sexual harassment of subordinates.¹⁴ Since the ICC’s establishment in 2002, it has spent over $2 billion to achieve a paltry nine convictions (just four of them for major crimes).¹⁵

As a cause of the court’s ineffectiveness, the Independent Expert Review pointed to the ICC’s pursuit of too many cases, including some with “limited feasibility” and insufficient “gravity” (apparent references to the investigations of the United States and Israel). The review concluded that “the current situation is unsustainable having regard to the limited resources available.”¹⁶

The Independent Expert Review also confirmed the pervasiveness of bullying and sexual harassment within the ICC. In a 2018 survey, half of ICC staff said they had been victims of discrimination, sexual harassment, or other abuses.¹⁷ The review said, “[T]here is a general reluctance, if not extreme fear, among many staff to report any alleged act of misconduct or misbehaviour by … a senior [ICC] official… The perception is that they are all immune.”¹⁸

ICC Prosecutor Khan should close the investigations of the United States and Israel and remedy the ICC’s serious internal problems – consistent both with the ICC’s own rules and with the final report of the Independent Expert Review.

The ICC charter provides the prosecutor with discretion over whether to proceed with cases pending before the court. The ICC recently closed its examination of alleged war crimes by UK personnel, on the grounds that the United Kingdom carried out its own “genuine” investigations into the allegations.¹⁹

The ICC’s leading contributors (led by Japan, Germany, France, and other close U.S. allies) have several reasons to support closure of the ICC investigations of the United States and Israel. Many of these allies have military personnel stationed abroad who could be negatively impacted by precedents set by an ICC prosecution of U.S. or Israeli troops.²⁰ Appropriate channels exist for these allies to convey to the prosecutor and other ICC officials the substantively strong arguments that the ICC investigations of the United States and Israel are contrary to the ICC’s own rules, and that the ICC must heed the Independent Expert Review’s recommendations.

A reset in the ICC’s relationship with the United States would also help the court more effectively pursue cases that are squarely within its mandate. The cooperation the ICC received from the Obama administration was pivotal for several of the court’s rare successes.²¹ However, considering the bipartisan American view that the ICC investigations of the United States and Israel are illegitimate, the Biden administration should not resume such cooperation so long as those investigations continue.

The Biden administration and Congress should:

• Continue to express strong opposition to the ICC investigations of the United States and Israel.

• Make it clear that any fundamental reset of U.S.-ICC relations, to include a resumption of the Obama-era cooperation, is impossible so long as those investigations continue. 

• Work closely with U.S. allies, including those that are the ICC’s leading funders, to refocus the court on its core judicial mission and to encourage the ICC to remedy its serious management problems.