The United States is not a state party to the Rome Statute, which founded the International Criminal Court (ICC) in 2002.
, 125 states are members of the Court. Other states that have not become parties to the Rome Statute include India, Indonesia, and China. On May 6, 2002, the United States, having previously signed the Rome Statute, formally withdrew its signature and indicated that it did not intend to ratify the agreement.
United States policy concerning the ICC has varied widely. Critics of the ICC in the United States have expressed concerns that U.S. soldiers will receive unwanted scrutiny by the court. The Clinton administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. The George W. Bush administration, the U.S. administration at the time of the ICC's founding, signed the Hague Invasion Act and stated that it would not join the ICC. The Obama administration subsequently re-established a working relationship with the Court as an observer. Archived June 26, 2014
At Congressional level, US Senate unanimously held that "the International Criminal Court (ICC) is an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists, by investigating and trying individuals charged ‘‘with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression’’"Lindsay Graham, S.Res.546 - A resolution expressing the sense of the Senate condemning the Russian Federation, President Vladimir Putin, members of the Russian Security Council, the Russian Armed Forces, and Russian military commanders for committing atrocities, including alleged war crimes, against the people of Ukraine and others, 117th Congress (2021-2022)..
Under the first and second Trump administrations, U.S. policy toward the ICC escalated to outward hostility marked by punitive measures and sanctions against ICC staff, particularly in response to the ICC arrest warrants for Israeli leaders in 2024.
Rome Statute Following years of negotiations aimed at establishing a permanent international tribunal to prosecute individuals accused of genocide and other serious international crimes, such as crimes against humanity, war crimes, and the recently defined crimes of aggression, the United Nations General Assembly convened a five-week diplomatic conference in Rome in June 1998 "to finalize and adopt a convention on the establishment of an international criminal court".United Nations (1999). Rome Statute of the International Criminal Court — Overview . Retrieved on January 31, 2008.Coalition for the International Criminal Court. . Retrieved on January 31, 2008. On July 17, 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were Iraq, Israel, Libya, China, Qatar, Yemen, and the United States.Michael P. Scharf (August 1998). Results of the Rome Conference for an International Criminal Court . The American Society of International Law. Retrieved on January 31, 2008.
U.S. president Bill Clinton originally signed the Rome Statute in 2000. Signature of a treaty provides a preliminary endorsement, but a treaty that is signed but not ratified is not legally binding. Signing does not create a binding legal obligation, but does demonstrate the state's intention to examine the treaty domestically and consider ratifying it, and it obliges the state to refrain from acts that would counter or undermine the treaty's objective and purpose.
Clinton stated that he would not submit it to the Senate for advice and consent for ratification until the U.S. government had a chance to assess the functioning of the Court. He nonetheless supported the proposed role of the ICC and its objectives:
After the Rome Statute reached the requisite 60 ratifications in 2002, President George W. Bush's administration sent a note to the U.N. secretary-general on May 6, 2002. The note informed the secretary-general that the U.S. no longer intended to ratify the Rome Statute, and that it did not recognize any obligation toward the Rome Statute. In addition, the U.S. stated that its intention not to become a state party should be reflected in the U.N. depository's list. This is because signatories have an obligation not to undermine the object and purpose of a treaty according to Article 18 of the Vienna Convention on the Law of Treaties, also sometimes referred to as the good faith obligations. According to American Non-Governmental Organizations Coalition for the International Criminal Court, the U.S. could engage with the Court by reactivating its signature to the Rome Statute by submitting a letter to the secretary-general.
Particular U.S. ratification contingencies
A treaty becomes part of the municipal law of a nation only when the treaty has been ratified, accepted, or acceded to. In the U.S., the Constitution gives the president power to negotiate treaties under the Treaty Clause of Article Two. The president must then submit a treaty to the Senate for advice and consent for ratification, and the Senate must approve the treaty by a two-thirds majority before it can take effect. The Senate may submit amendments, reservations, or explanations to the president regarding the treaty. Once ratified, treaties are generally self-executing—at least from the perspective of other nations—as the ratifying state fully binds itself to the treaty as a matter of the public international law and of national honor and good faith. In the U.S., however, a treaty does not immediately become effective as U.S. domestic law upon entry into force, which occurs only if the treaty is self-executing. In Foster v. Neilson (1829), the U.S. Supreme Court explained that treaties are self-executing if accompanying legislation is not necessary for implementation. A treaty requiring additional action is not self-executing; it would create an international obligation for the U.S., but would have no effect on domestic law.
However, entrenched provisions of municipal law—such as the constitution of a state party or other fundamental laws—may cause the treaty not to be fully executable in municipal law if it conflicts with those entrenched provisions. Article Six of the U.S. Constitution contains the Supremacy Clause, which gives all treaties ratified in accordance with the Constitution the effect of federal law. In the U.S., if a treaty is found to be self-executing it will preempt inconsistent state law and previous legislation. This issue was addressed by the U.S. Supreme Court in Ware v. Hylton 3 U.S. 199 (1796), where it found that the treaty at issue was self-executing and struck down an inconsistent state law. However, a treaty cannot preempt the Constitution itself as held in Reid v. Covert 354 U.S. 1 (1957). Thus, in order for a treaty to be executable within the United States, it might be necessary for the Constitution to be amended. Otherwise, treaty provisions could potentially be found unconstitutional and consequently be struck down by the courts. An example of an instance where this occurred outside the U.S. is when Ireland ratified the Rome Statute. The Irish government's response was to hold a national referendum on the issue in 2001, after which the government amended their Constitution to bring it into effect. The question of whether the Rome Statute would require amendments to the U.S. Constitution to be brought into effect is a matter of debate within the United States. However, some scholars and experts believe that the Rome Statute is compatible with the U.S. Constitution.
U.S. criticism and support of the ICC
Lack of due process The ICC has been criticized for absence of jury trials; allegations of retrials allowed for errors of fact; allegations that hearsay evidence is allowed; and allegations of no right to a speedy trial, a public trial, or reasonable bail. Supporters of the ICC say that the ICC Statute contains the due process rights found in the U.S. Constitution and now well recognized in international standards of due process in Article 67 Rome Statute, with the exception of the right to jury trial.
Military justice Former U.S. State Department Legal Advisor Monroe Leigh has said:
The U.S. has adopted forms of war crimes and crimes against humanity within its military courts. The military courts have jurisdiction over all military personnel abroad and any accompanying civilians. Further, the U.S. has adopted criminal laws against genocide within its domestic systemGenocide Convention Implementation Act of 1987 (the Proxmire Act), , codified at and conscription of child soldiers.
Incompatibility with the U.S. Constitution The Heritage Foundation, a U.S.-based conservative think tank, issued the following:
United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of U.S. citizens for crimes committed on U.S. soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses.
This statement refers to several issues. The first is the trial of U.S. citizens by the ICC and implies that the Court does not have the power to try Americans for crimes committed on U.S. territory. The second refers to due-process issues.
Critics argue that, because the U.S. Constitution permits the creation of only one Supreme Court, participation with the International Criminal Court violates the U.S. Constitution. However, the Court is not a creation of the U.S.; instead, it functions internationally. Further, the U.S. has participated in various international courts including the International Military Tribunal for the Far East, the Nuremberg trials, and the tribunals for the former Yugoslavia and Rwanda.The United States and the International Criminal Court: National Security and International Law; edited by Sarah B. Sewall and Carl Kaysen (2000)
Other views The Heritage Foundation has stated that:
The true measure of America's commitment to peace and justice and its opposition to genocide and war crimes lies not in its participation in international bureaucracies like the ICC, but in its actions. The United States has led the fight to free millions in Afghanistan and Iraq. It is a party to many human rights treaties and, unlike many other nations, abides by those treaty commitments. The U.S. has led the charge to hold violators of human rights to account, including fighting hard for imposing Security Council sanctions on the Sudanese government until it stops supporting the militia groups that are committing genocide in Darfur and helps to restore order to the region. The U.S. polices its military and punishes them when they commit crimes. In every practical way, the U.S. honors the beliefs and purposes underlying the ICC.
In a 2005 poll of 1,182 residents of the United States by the Chicago Council on Global Affairs and the Program on International Policy Attitudes at the University of Maryland, 69% favored U.S. participation in the ICC.
On a candidate questionnaire during the 2004 Senate race, Barack Obama was asked:
Should the United States ratify the 'Rome Statute of the International Criminal Court'? If not, what concerns do you have that need to be resolved before you would support joining the court? Prior to ratification, what should the United States relationship with the Court be, particularly in regards to sharing intelligence, prosecuting war criminals, and referring cases to the U.N. Security Council?
Obama answered: "Yes[.] The United States should cooperate with ICC investigations in a way that reflects U.S. sovereignty and promotes our national security interests."