The United States played a central role in establishing the idea that even powerful people can be held accountable for crimes committed during war. After World War II, American prosecutors helped build the case at Nuremberg that some crimes are so serious that national borders and political office cannot provide immunity.
Nearly eight decades later, however, the United States remains unwilling to subject its own citizens to one of the institutions built around that principle. This may come as a surprise to most Americans, and this new knowledge likely elicits shock and even shame.
The International Criminal Court (ICC) prosecutes individuals—not governments—for four categories of international crimes:
Genocide
Crimes against humanity
War crimes
The crime of aggression
The idea behind the Court is both ambitious and relatively simple: certain acts are so grave that those accused of committing them should potentially face criminal accountability regardless of their political or military power.
Its ability to enforce that principle, however, remains limited.
The ICC has no police force of its own. It depends heavily upon member states to arrest suspects, provide evidence and otherwise cooperate with its investigations.
The United States, Russia and China are not parties to the ICC. Israel is not a party either. By contrast, much of Europe, South America and many other countries around the world participate in the Court.
The United States occupies an especially complicated position. It strongly supported international criminal accountability at Nuremberg and has subsequently supported a number of international criminal tribunals. Yet, it has resisted placing Americans under the ICC’s jurisdiction.
That tension matters because the past several years have provided brutal reminders of why international mechanisms of accountability exist.
Since Russia’s full-scale invasion of Ukraine in February 2022, international investigators have documented summary executions, torture and mistreatment of civilians, forced transfers and attacks that have killed thousands of civilians. The ICC has issued an arrest warrant for Russian President Vladimir Putin over alleged war crimes involving the unlawful deportation and transfer of Ukrainian children.
China presents a different challenge. International human-rights investigators have documented mass arbitrary detention and serious abuses against Uyghurs and other predominantly Muslim minorities in Xinjiang. A United Nations assessment concluded that the extent of arbitrary and discriminatory detention and related abuses may constitute crimes against humanity.
The war in Gaza has created another profound test of international accountability. Hamas’s October 7, 2023 attack killed civilians and involved hostage-taking and other crimes. Israel’s subsequent military campaign in Gaza has killed tens of thousands of Palestinians and caused extraordinary civilian suffering. And America shares responsibility in that situation because of the weapons and support it has provided to Israel.
The ICC has pursued allegations of war crimes and crimes against humanity arising from the conflict. Arrest warrants were issued for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The Court has faced fierce political opposition as a result.
The United States has not merely declined to join the ICC. At various points, it has actively sought to limit the Court’s ability to act against Americans and certain U.S. allies.
Under the American Service-Members’ Protection Act of 2002—sometimes provocatively nicknamed the “Hague Invasion Act”—the president is authorized under specified circumstances to use “all means necessary and appropriate” to secure the release of certain U.S. or allied personnel detained by or on behalf of the ICC.
The language is extraordinary. Taken to its extreme, it contemplates the possibility of American power being used to prevent an international court from exercising authority over certain Americans or their allies.
More recently, the United States has imposed sanctions on ICC officials, including judges and prosecutors. These measures have drawn strong objections from the Court and its member states, which argue that sanctions against judicial officials threaten the independence of international justice.
The broader question extends well beyond the ICC.
What obligations should powerful countries accept in a world in which their actions increasingly affect people far beyond their borders?
Globalization is no longer an abstract political theory. It describes ordinary life. The clothes we wear, cars we drive, food we eat, medicines we take and phones we carry depend upon intricate relationships among people living thousands of miles apart. Technology has deepened those connections further: money, ideas, images, scientific discoveries, political movements and disease can cross borders with astonishing speed.
Our moral relationships have become global as well.
That creates an uncomfortable problem for powerful nations. A rules-based international system has little meaning if countries support accountability primarily when it applies to their adversaries.
For Americans, the question is particularly important. Our country has frequently presented itself as a defender of individual rights, democratic institutions and the rule of law. Those principles become considerably more meaningful when we are willing to accept constraints on our own power as well.
The question before us, then, is not whether globalization will continue. It is what kind of globalization we want.
Will international rules apply primarily to weaker nations and defeated enemies? Or can we build institutions strong enough to hold even powerful countries—and powerful individuals—to standards they claim to support?
America helped establish the principle that some crimes transcend national sovereignty.
Perhaps it is time we became more willing to live under that principle ourselves.
The International Criminal Court is distinct from the International Court of Justice (ICJ). The ICJ primarily adjudicates disputes between states, while the ICC prosecutes individuals accused of international crimes.
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