Marco Rubio Is Right: The ICC Should Be Dismantled, Not Reformed

Imagine a 24-year-old sergeant from Ohio. He is deployed to a country that joined a treaty his own country voted against, refused to ratify, and formally repudiated. He took an oath to the Constitution. His conduct is governed by the Uniform Code of Military Justice, reviewed by his chain of command, and subject to prosecution in American courts if he breaks American law. Now ask a simple question. Who may lawfully take away his liberty? The intuitive answer is his own government, acting through institutions his fellow citizens created, or a foreign government exercising ordinary territorial law under the familiar rules of extradition and diplomacy. The International Criminal Court gives a third answer, and that third answer is the whole controversy.

Consider an analogy. Two neighbors sign a contract creating a private arbitration board and agree to be bound by its rulings. That is unremarkable. Now suppose those two neighbors declare that the board may also summon, judge, and punish a third neighbor who read the contract, objected to it, and refused to sign. We would not call that arbitration. We would call it an imposition dressed in the vocabulary of agreement. Article 12 of the Rome Statute does precisely this. It permits the Court to exercise jurisdiction over a citizen of a nonmember state whenever the alleged conduct occurred on the territory of a member state. The United Nations’ own legal history describes this as territorial jurisdiction applying irrespective of the nationality of the alleged perpetrator. One country’s decision to join thereby generates criminal exposure for the citizens of a country that declined.

Defenders of the Court often reply that this is a technical byproduct of territoriality, an unfortunate wrinkle that clever lawyers discovered later. The record says otherwise. At the Rome conference in 1998, with 160 delegations and 135 nongovernmental organizations present, the American delegation proposed an amendment protecting nationals of nonparty states absent their government’s consent. The conference did not debate that amendment on its merits and reject it. It approved a motion to take no action on the American proposal at all, 113 to 17 with 25 abstentions, then adopted the statute 120 to 7 with 21 abstentions, the United States voting no. The drafters were told exactly what the objection was. They were handed language that would have cured it. They declined even to consider it. The defect is therefore not a scandal that a better prosecutor might repair. It is the founding bargain.

This matters because the objection is frequently caricatured as partisan and recent. It is neither. President Bill Clinton signed the treaty on the last day of 2000, and his signing statement is worth reading closely, because it is not an endorsement. He called the Court’s assertion of authority over personnel of nonparty states a significant flaw, declined to recommend the treaty to the Senate, and said plainly that jurisdiction over American personnel should come only with American ratification. In May 2002, the Bush administration notified the Secretary-General that the United States did not intend to become a party. By 2005, the United States had concluded non-surrender agreements with 99 governments. The Biden administration rejected the Court’s jurisdiction over Americans and Israelis. Five administrations, three of them Democrat, reached the same conclusion. Secretary of State Marco Rubio’s July 2026 campaign to dismantle the Court is not a rupture. It is the terminus of 28 years of continuous American judgment.

Now consider what the sergeant loses. American criminal procedure is not a collection of nice-to-have courtesies. It is a chain of consent. Congress defines the crime. A president accountable to voters appoints prosecutors confirmed by the Senate. A grand jury of citizens decides whether an accusation may proceed at all. An Article III judge, holding office during good behavior with protected compensation, presides. A jury drawn from the community determines guilt. The Supreme Court reviews. At the ICC, none of this exists. The judges are chosen by an assembly of foreign governments. The prosecutor is elected by member states to a nine-year term. There is no grand jury, no trial jury, no vicinage guarantee, no American appellate review, and no complete body of confrontation, compulsory process, and exclusionary doctrine. The Rome Statute does provide a presumption of innocence, counsel, and notice of charges. That is not nothing. But the question is not whether ICC procedure resembles a show trial. It does not. The question is whether an American may be deprived of liberty under a system that omits protections his own Constitution makes mandatory.

Congress answered that question in 2002, and the answer it gave is far more forceful than most Americans realize. The American Service-Members’ Protection Act, passed with bipartisan support and signed into law in August of that year, restricted cooperation with the Court, limited participation in peacekeeping operations lacking protection for US personnel, and barred certain military assistance to states parties that had not concluded Article 98 agreements. Those are the provisions the law reviews tend to discuss. They are not the provision that gave the statute its nickname. Section 2008 authorizes the President to use “all means necessary and appropriate” to bring about the release of covered United States persons and covered allied persons detained or imprisoned by, on behalf of, or at the request of the International Criminal Court. Critics promptly dubbed it the Hague Invasion Act, and they meant it as ridicule. They should have read it as a warning.

Pay attention to what Congress did not write. It did not authorize the President to pursue diplomatic remonstrance. It did not confine him to sanctions, visa restrictions, litigation, or the withholding of assistance. It selected a formula with a long and well-understood pedigree in American statutory and international practice, a formula that in the resolutions authorizing the Gulf War and subsequent military campaigns has always been understood to encompass the use of armed force. Congress legislates against the background of settled usage. When it chose “all means necessary and appropriate,” it chose the broadest available grant, and it did so knowingly, over the objections of members who wanted narrower language precisely because they understood what the broader phrase permits. The statute does not command a rescue operation. It authorizes one, should a President determine that nothing short of it will return an American soldier held at the request of a foreign court his country never joined.

I want to be careful about the register here, because the point is not that American paratroopers are likely to descend on the Dutch coast. The point is jurisdictional, and it is one of the clearest statements Congress has ever made about the limits of foreign authority over American citizens. A legislature does not authorize the use of force to recover its own nationals from an institution it regards as legitimate. It authorizes force when it has concluded that the detention itself would be a wrong, that no appeal to the detaining body could cure it, and that the citizen’s liberty is not a matter on which the United States will negotiate. Congress made that judgment 24 years ago. It has never repealed it. Every subsequent administration has operated in its shadow, and the ICC has operated in its shadow too, which may partly explain why the Court has never actually attempted to take an American into custody.

That restraint should not be mistaken for a guarantee. Consider what the Court has already done. It sought and obtained authorization to investigate conduct in Afghanistan, a member state, with potential exposure for US military and intelligence personnel, and it did so after an initial pretrial chamber declined and an appeals chamber reversed. The Military Coalition, representing more than 5.5 million service members, veterans, families, and survivors, warned that the investigation could lead to the arrest, prosecution, and detention of American personnel in foreign countries. That is the practical form the abstraction takes. Not a courtroom in The Hague, but an airport in a member state, a retired officer on vacation, and a warrant executed by an allied government that believes itself obligated.

Independence, meanwhile, is not the same thing as accountability, and the Court has systematically confused the two. Under Article 15, the prosecutor may open investigations on his own motion, subject only to authorization by judges within the same treaty system. No electorate can remove him. No legislature can narrow his jurisdiction. When misconduct allegations against Prosecutor Karim Khan surfaced in 2024, the institution required nearly two years to resolve them. He went on leave in 2025. On July 24, 2026, 82 of the 125 member states voted to remove him for serious misconduct and a serious breach of duty. He denies the allegations and intends to challenge the process, and he is entitled to that. But note the lesson. A court claiming authority to declare whether entire nations are genuinely willing to investigate wrongdoing spent two years failing to resolve allegations against its own chief prosecutor, while the warrants he had sought remained in force.

The record compounds the problem. As of February 2025, Reuters reported an annual budget of roughly $223 million, 60 arrest warrants, 11 convictions, and 31 suspects still at large. The Associated Press estimated spending exceeding $2.5 billion over the Court’s first two decades. Some of those convictions involve offenses against the administration of justice rather than genocide or war crimes. The first Darfur conviction arrived in 2025, more than 20 years after the atrocities began. Joseph Kony has been a fugitive since 2005. Omar al-Bashir traveled for years unmolested. Russia will not surrender Vladimir Putin. China never joined. What the Court can reach are officials of cooperating states, leaders of collapsed governments, and democratic politicians who travel openly because they have nothing to hide. Accessibility, not culpability, becomes the selection criterion.

The Israel proceedings show where that leads. In May 2024, the prosecutor announced warrant applications involving Prime Minister Netanyahu, Defense Minister Gallant, and Hamas leaders in a single event, and in November the judges issued warrants. Israel is not a member. The Court proceeded on jurisdiction derived from Palestine and rejected Israeli objections regarding notification and complementarity, despite Israel’s functioning courts, military lawyers, parliamentary opposition, and internal investigative machinery. President Biden’s own reaction was that there is no equivalence, none, between Israel and Hamas. He was right, and the Court’s formal protestations that simultaneous charging implies no moral equivalence miss the point entirely, because equivalence in political effect is produced by the packaging, by the shared seal and the shared press conference and the shared news cycle. A terrorist organization that embeds its fighters among civilians can manufacture casualties, feed the imagery to sympathetic organizations, and watch an international prosecutor convert its own strategy into charges against the democracy defending itself.

Complementarity offers no refuge either. In the Kenya litigation, the government argued that domestic proceedings were underway, and ICC judges held that those proceedings did not sufficiently cover the same persons and the same conduct. So complementarity does not mean the Court stands aside when a nation investigates. It means the Court decides whether the nation’s investigation counts. An American inquiry could be deemed too narrow, too slow, aimed at the wrong ranks, or resolved administratively rather than criminally, and foreign judges would render that verdict on American sovereignity.

There is also a humanitarian cost rarely tallied. Allard Duursma’s peer-reviewed study of intrastate conflicts from 2002 through 2018 found that ICC warrants undermined the prospect of ending civil wars through negotiated settlement. The mechanism is not mysterious. A commander who believes surrender means a flight to The Hague has every reason to keep fighting. Ugandan mediator Betty Bigombe said it had become extremely difficult for her to talk meaningfully to the leadership of the Lord’s Resistance Army. Two decades later, Kony is still free, and in November 2025 the Court confirmed 39 charges against a man it has never once had in custody, which is a strange sort of triumph.

None of this is an argument for impunity. America prosecuted at Nuremberg. America supported the Yugoslavia and Rwanda tribunals, both of which had defined conflicts, defined mandates, and endpoints. The alternative to a permanent supranational prosecutor is not lawlessness. It is national courts, military justice, extradition, and tribunals constituted for particular atrocities by bodies answerable to actual populations. A temporary tribunal finishes its work and dissolves. A permanent one must forever find new work to justify its budget, which is exactly the incentive you would design if you wanted jurisdictional creep, and creep is what we have seen, from the Myanmar theory that reached a nonmember through a single cross-border element, to the activation of the crime of aggression in 2018, to a Palestine theory that reached the elected leader of a democratic ally.

So dismantling is the right word. It means denying the Court legitimacy, prohibiting cooperation and funding, enforcing and expanding non-surrender agreements, sanctioning those who materially assist unauthorized proceedings against Americans, and encouraging member states to withdraw. Rubio has committed to taking the thing apart brick by brick if necessary. Critics call this hostility to international law. It is better understood as fidelity to the only law that can legitimately imprison a free person: the law he had a hand in making. Congress said as much in 2002, in language it chose deliberately and has never softened. The sergeant from Ohio never voted for the Rome Statute. Neither did you. That should be the end of the matter.

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Alexander Muse is a Fellow at the John Milton Freedom Foundation and publishes daily political analysis at amuseonx.com. Primary sources cited in this piece are linked inline; campaign finance figures are drawn from FEC filings, polling data from publicly released crosstabs, and legal claims from filed pleadings. Corrections are posted to the original URL with a dated changelog. Readers who identify errors are invited to contact the author directly. Each op-ed was edited for grammar and clarity using AI in partnership with Grammarly. Data provided in a sponsored partnership with Polymarket.