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As New York City Mayor Zohran Mamdani explores ways to arrest Israeli Prime Minister Benjamin Netanyahu under an International Criminal Court (ICC) warrant, the Trump Administration has been working in the background for more than a year to undermine worldwide support for the court. Secretary of State Marco Rubio described the effort as “dismantling the ICC.”
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While refusing to recognize the legitimacy of the court may seem like a surprising development, mistrust and even outright hostility has always dominated the American relationship with the ICC. Since the ICC’s inception, the U.S. has remained skeptical of its authority and jurisdiction. The United States is not a signatory to the court, but supported some of its actions, like referring Muammar Gaddafi to the court in 2011, or sharing evidence of Russian war crimes in Ukraine in 2022.
Despite years of ad hoc partnerships and inconsistent relations, one thing is for certain: the U.S. will not allow the ICC to arrest and try American troops. It even pre-authorized the use of military force to break out any American citizen or ally being held by the ICC.
Foundations of the ICC
The roots of international criminal law were planted in post-World War II Germany. Between 1945 and 1949, a series of 13 trials were held by the International Military Tribunal in Nuremberg to hold Nazi leaders accountable for their wartime atrocities. They were accused of offenses that were defined and codified for the first time: crimes against peace, war crimes, crimes against humanity, and conspiracy to commit these crimes.
The tribunal tried 21 of 24 Nazi leaders, but the United States held 12 more trials, trying 199 defendants in total. Judges and prosecutors from 11 Allied nations held similar tribunals in Tokyo after World War II. It was a good idea, one repeated after the Cold War following the conflicts and atrocities committed during the break up of the former Yugoslavia.
After the 1994 genocide in Rwanda, calls for a supranational body to indict and try offenders increased. On July 17, 1998, 120 nations adopted the Rome Statute of the International Criminal Court, establishing a permanent and independent judicial body to do just that. Today there are 125 countries that are States Parties to the Rome Statute, with roughly 29 more that signed but never ratified.
The U.S. signed the statute, but it never ratified, and just before the ICC was entered force in 2002, the U.S. unsigned it. This means that international crimes committed on American soil are outside ICC jurisdiction.
But that wasn’t enough of a guarantee for the United States.
“The Hague Invasion Act”
Just one month following the official establishment of the International Criminal Court, the United States passed the American Service-Members’ Protection Act. Not only does this legislation (which is still in effect) forbid U.S. federal, state, and local agencies from extraditing individuals to the court, sharing classified national security data, or providing funding and investigative support, it also cuts off U.S. military aid to foreign nations that choose to ratify the Rome Statute, though major allies like NATO members are exempted.
Most strikingly is how the ASPA got the nickname “The Hague Invasion Act.” Section 2008 (also known as “The Hague Invasion Clause”) authorizes the president to use “all means necessary and appropriate” (including military force) to liberate U.S. military personnel, elected officials, or covered allied nationals detained by the ICC.
When President George W. Bush signed the legislation into law, reactions from the Netherlands were, understandably, negative. The Dutch ambassador to the United States said his country was “not particularly amused.”
Since The Hague, the city that hosts the International Criminal Court, is in the Netherlands, a founding member of the NATO alliance, enforcing the ASPA could totally upend—or just end—relations in the West. There is no current pending ICC cases against an American. This means the court can for the moment, breathe a sigh of relief that the Trump administration’s recent attacks are limited to international sanctions and diplomatic pressure—not actual attacks.
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