It’s Time for the United States to Join the ICC

On March 17, the International Criminal Court (ICC) took a momentous step. For only the second time in its history, the ICC issued a public arrest warrant for a sitting head of state: Russian President Vladimir Putin. No sanctions, weapons, or ammunition delivered to Ukraine since the start of Russia’s full-scale invasion in February 2022 has targeted Putin as directly as this action. And even if the immediate prospect of Putin appearing in the dock at the Hague is remote, there will still be significant ramifications resulting from the ICC’s announcement.

Founded in 1998 after nearly a century of major-power wars and conflicts, the ICC was designed to hold individuals accountable for genocide, war crimes, and other serious international crimes. The ICC is a critical pillar of the rules-based international order and has played an important role in getting justice for victims of regimes that flaunt human rights and international norms. However, despite touting the importance of this order and having called for accountability for Russia’s war crimes, the United States has declined to join or recognize the jurisdiction of the ICC in the 25 years since its founding.

Even if the arguments against cooperation with the ICC were compelling in the past, the costs of not supporting the court are now too high in a world where authoritarian empires are once again embracing aggressive neocolonial warfare against their sovereign neighbors. The time for straddling the fence is over: The United States should cease its objections and robustly support—and perhaps even finally join—the ICC. Doing so will not only benefit justice efforts in Ukraine but will also strengthen U.S. foreign policy and international leadership for decades to come.

Having served 25 years in the military, including as a legal advisor on international criminal law and ICC matters at the White House during the Trump administration, I know the case against joining the ICC well.

Critics argue that the ICC infringes on U.S. sovereignty, limits our freedom of action in international relations, and exposes our soldiers and politicians to potentially politically motivated prosecutions by foreign bureaucrats. But under closer scrutiny, many of these fears fall flat. Further, in the current geopolitical environment, there is good reason to believe that the benefits of supporting the ICC now will heavily outweigh the risks.

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Since World War II, the United States has helped build, reinforce, and lead an international order in which countries play by predictable rules. Conflicts, at least between major powers, are resolved through negotiation and consensus instead of force. This system of postwar institutions provides a bedrock of stability that has allowed for a climate of relative peace among global powers and economic prosperity for the American public.

Russia’s aggression in Ukraine is the most serious attack on this system since at least the collapse of the Soviet Union and the greatest threat to peace on the European continent since World War II. As one of the guardrails put in place to maintain the rules-based international order, if the ICC’s warrant is ignored, then the other remaining guardrails to prevent illegal warfare may erode, too. Inversely, abiding by international legal norms, including those enforced by the ICC, has the potential to walk back the damage Russia has already done to the rule of law. If the global community can put up a united front to hold Russia accountable for its crimes, other would-be aggressors—especially Russia’s backers in Beijing—would take note.

Supporting institutions of justice and accountability—even those that could potentially hold the United States accountable—would be a much-needed investment in the long-term viability of the U.S.-led international system for generations to come.

As is the case of any international treaty, support for the ICC undoubtedly involves a certain sacrifice of sovereignty in pursuit of stability, deterrence, and peace. But even sharp criticisms and great concerns about joining the ICC should not dissuade the United States from entering into a treaty that will support the international rule of law.

The idea that unelected bureaucrats in a supranational body can question and impugn the actions of democratically elected national officials is unconvincing. Though international prosecutors have vast powers, they can be constrained by the U.N. system and are only effective when the actions at hand violate principles of international law either in the initiation or conduct of conflict. Any objectively just and appropriate use of force would be beyond the ICC’s reach. One would hope that any use of force by the United States would meet these simple criteria.

The greatest concern about cooperating with the ICC is that doing so would expose U.S. service members and leaders to politically motivated prosecution by foreign bureaucrats. But the court operates on the principle of complementarity, meaning that the ICC will not exercise jurisdiction when a state exercises its own prerogatives to investigate and prosecute potential war crimes. The ICC steps in only when a state fails to use its own national criminal justice apparatus to handle war crimes, as is currently the case in Russia. In the United States, however, the robust military justice systems ensure that crimes are investigated and prosecuted as a matter of maintaining order and discipline within the armed forces, making ICC jurisdiction against U.S. military personnel unlikely, so long as the United States continues to police its own behavior.

Because the United States is already compliant with core principles of international criminal law, supporting and even joining the ICC would have very little practical effect on U.S. operations. Support for the ICC would, however, eliminate the argument that the United States is hypocritical and send a clear message that the United States plays by the same rules that it expects of all other international actors.

For example, even though the U.S. military has a robust legal regime that effectively polices compliance with the law of war, there have been recent lapses at the political level, specifically the Trump-era grants of clemency for war criminals such as former Navy SEAL special operations chief Eddie Gallagher, who was accused of committing various war crimes while deployed in Iraq in 2017, and four security guards from the private military firm Blackwater—Paul Slough, Evan Liberty, Dustin Heard, and Nicholas Slatten—who were serving jail sentences for a 2007 civilian massacre in Baghdad. These actions were not popular with career military prosecutors—including myself—because the lack of justice and accountability erodes not only U.S. moral authority but ultimately good order and discipline within the military.

Justice for its own sake is, of course, a worthy goal. Signing the Rome Statute would be a powerful step toward justice for Ukrainians who have suffered at the hands of Putin, as well as those who deserve accountability elsewhere.

But many short-sighted critiques of the ICC miss the larger point that support for this body is not just the morally correct choice; it’s also the strategically correct one for U.S. foreign policy. A demonstrated commitment to accountability will strengthen the United States’ own institutions and make U.S. leadership of international institutions more credible and viable. Further, ICC membership would potentially chill U.S. political leaders’ appetite for unjust wars that could land them in dicey moral and legal terrain. An added layer of restraint and accountability may prevent future foreign-policy follies, whether by the White House or even by an expansionist China eyeing Taiwan.

American choices made in the coming months and years will either further erode the international system or accelerate Russia’s status as a global pariah. By making the right choice and joining the ICC’s efforts for justice, the United States adds to its own security by fortifying the rules-based international order and dissuading aggressive adventures by its competitors.