When justice is not convenient: US and its fraught relationship with ICC

On November 21, when the International Criminal Court (ICC) issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant, the response from the incoming Trump administration was immediate and scathing.

“You can expect a strong response to the antisemitic bias of the ICC and UN come January,” said Mike Waltz, Trump’s future national security adviser.

Senator Lindsey Graham took it a step further. Speaking to Fox News, he warned, “To any ally — Canada, Britain, Germany, France — if you try to help the ICC, we’re going to sanction you.”

The rhetoric may seem fierce, but it was not a departure from precedent.

In fact, during his first term, Trump sanctioned then-ICC prosecutor Fatou Bensouda after the court authorised an investigation into war crimes committed by US troops in Afghanistan.

In March 2020, the world court authorised an investigation into alleged crimes committed by the US in Afghanistan, including torture by CIA operatives at secret detention facilities—or “black sites”—in Lithuania, Poland, and Romania.

The revelations stemmed from investigations such as the US Senate’s 2014 Torture Report, which detailed brutal practices under the post-9/11 “extraordinary rendition” programme.

At the time, US Secretary of State Mike Pompeo called the ICC a “kangaroo court” and warned allied nations, “Your people could be next.”

The US has long had a fraught relationship with the ICC, especially when investigations have implicated its personnel or close allies.

Pattern of resistance

American opposition to the world court is “rooted in a basic US antipathy to having international courts that can hold US citizens to account,” Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, tells TRT World.

Lara Elborno, an international lawyer, concurs.

“The logic of sanctions in response to activating a mechanism of international justice is that international law does not apply to the US and that it would, therefore, be a crime to hold the US accountable for its international crimes,” Elborno tells TRT World.

In 2018, then-NSA Adviser John Bolton said that this assumption is based on the understanding that “the ICC constitutes an assault on the constitutional rights of the American people and the sovereignty of the United States”.

When it was established in 2002, the ICC was envisioned as a permanent institution to prosecute war crimes and crimes against humanity, extending the legacy of ad hoc tribunals for Rwanda and the former Yugoslavia.

While 124 countries ratified the ICC's founding treaty—the Rome Statute—the US has steadfastly refused to join.

Though former president Bill Clinton signed the treaty on December 31, 2000, it was never ratified by the Senate.

A year later, US opposition to the court became more entrenched with the launch of the so-called “war on terror”.

In 2002, President George W. Bush formally withdrew the US signature from the treaty, effectively ensuring that its actions during this period would not be subject to independent international scrutiny.

That same year, Congress passed the American Servicemembers’ Protection Act (ASPA), derisively nicknamed the “Hague Invasion Act,” which prohibited US cooperation with the ICC and authorised military force to free any Americans detained by the court.

Yet, the US has not always opposed the proceedings of the ICC.

In cases involving adversaries like Iraq’s Saddam Hussein as well as Sudan’s Omar al-Bashir and Libya’s Muammar Gaddafi, Washington has supported the court’s efforts.

In March 2023, President Joe Biden also endorsed the ICC’s arrest warrant against Russian President Vladimir Putin over alleged war crimes in Ukraine.

“We support accountability for perpetrators of war crimes,” said National Security Council Spokesperson Adrienne Watson at the time.

Only when the focus has shifted closer to home that Washington’s tone has changed.

In May 2004, during a press conference with King Abdullah II of Jordan at the White House, Bush addressed the release of photographs and reports showing US soldiers abusing and humiliating Iraqi prisoners at the notorious Abu Ghraib detention facility in Iraq.

In his statements, he seemed to acknowledge the scandal, saying the actions of “those folks in Iraq” do not represent the values of the US, promising that the wrongdoers would be “brought to justice”.

“It’s also important for the people of Iraq to know that in a democracy, everything is not perfect, that mistakes are made,” he noted during an interview with Alhurra, a US-funded Arabic television channel that broadcasts Middle Eastern and North African audiences.

“We’re an open society. We're a society that is willing to investigate, fully investigate, in this case, what took place in that prison,” he asserted.

Yet, despite extensive evidence, including those in the US Senate’s 2014 Torture Report, no senior US officials have faced prosecution to this day.

Guantanamo Bay, where some detainees were later sent, remains a symbol of this impunity. Today, 30 individuals are still held there, many without charges or trials.

The Israeli exception

When the ICC authorised investigations into alleged war crimes by the US in Afghanistan in 2020, it coincided with its ongoing probe into alleged war crimes by Israel in the Palestinian territories.

At the time, Netanyahu dismissed the court as “politicised” and accused it of targeting Israel and the US unjustly.

He also lamented that “the court established to prevent atrocities like the Nazi Holocaust against the Jewish people is now targeting the one state of the Jewish people."

Similarly, the latest arrest warrants against Netanyahu and Gallant, issued following Israel’s killing of over 44,000 people in Gaza, have been described by President Biden as “outrageous,” as he reaffirmed the US’ unwavering support for Israel.

“The US’s rejection of the ICC arrest warrants for Gallant and Netanyahu are part of a broader policy of upholding Israeli impunity,” Elborno says.

“This is not a surprise because the US is the primary financer of Israel's military assaults on Palestinians historically and now, making it legally complicit in the ongoing genocide in Gaza.”

The ICC relies on the UN Security Council —and, by extension, the US — for enforcement. With its veto power, the US can obstruct actions that don’t align with its interests.

The US, in fact, has frequently exercised its veto power in the United Nations Security Council to block resolutions critical of Israel.

Since 1970, it has used its veto 49 times to shield Israel from actions that could hold it accountable for violations of international law.

All history considered, it is hard to ignore how the alignment of US and Israeli hostility toward the ICC reveals a deeper equivalence between the two nations in their shared resistance to international accountability.

Their defiance, if anything, seems to signal the presence of a tacit admission that their policies and actions, if fully examined, could unravel the moral high ground they both claim to occupy.

On November 30, Michael Lynk, former UN Special Rapporteur on human rights in the Palestinian territories, delivered a sharp critique of Israel and the US at the TRT World Forum in Istanbul, questioning the former’s right to retain its seat at the UN Security Council.

He added that in looking at the impunity Israel exercises, “we have to go a step farther and look at the role of the United States.”

“What does that say about responsible diplomacy today?” he asked, a question that seems futile against a US determined to wield its power unchecked and sidestep international law with impunity.