From “Invade the Hague” to “Support the ICC”: America’s shifting stance on the International Criminal Court

Helen Clapp and Kathryn Sikkink

The latest support for the International Criminal Court (ICC) comes from an unlikely source: a bipartisan, unanimous resolution by the U.S. Senate. Introduced by Lindsey Graham (R-SC), Senate Resolution 546 (S.Res.546) in part “encourages member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate war crimes and crimes against humanity committed by the Russian Armed Forces and their proxies and President Putin's military commanders, at the direction of President Vladimir Putin.” S.Res.546 was sponsored by twelve Republicans, twelve Democrats, and one Independent, and agreed to in the Senate by voice vote on March 15.

To understand why S.Res.546 is remarkable, we must look back at US relations with the ICC. On July 17, 1998, 120 nation-states voted in favor of the Rome Statute to establish the ICC. Although President Clinton signed the Rome Statute on December 31, 2000, he stipulated that he would not submit the treaty to the Senate for ratification, nor should his successor, until “our fundamental concerns are satisfied.” The George W. Bush administration took an overtly hostile stance towards the ICC, “unsigning” the Rome Statute on May 6, 2002.  Congress took the administration’s hostility one step further with the passage into law of the American Servicemembers Protection Act on August 2, 2002. Colloquially called the “Hague Invasion Act,” this law authorizes the president to “use all means necessary and appropriate to bring about the release” of a US or allied person detained or imprisoned by the ICC.” It also forbids the US Government from providing support for the ICC, cooperating with its requests, or granting military aid to any state party to the ICC, among other provisions. The Bush administration also pursued Bilateral Immunity Agreements (BIAs), or Article 98 Agreements, in which both countries agree not to extradite current or former government officials, military personnel, or citizens of the other party to the ICC. As of 2018, the United States had concluded at least 100 BIAs. 

The Bush Administration’s decision in 2005 not to veto a UN Security Council resolution referring the situation in Darfur to the ICC, however, marked the beginning of a more pragmatic approach towards the ICC during Bush’s second term. In 2007, frustrated by Sudan’s failure to end genocide in Darfur, the Bush administration imposed new U.S. sanctions on Sudan and sought an international arms embargo. Although the Bush administration did not mention the ICC, its pressures strengthened the ICC’s hand in trying to investigate genocide and crimes against humanity in Sudan. The ICC issued the first arrest warrants in the case in 2009.

US relations with the ICC did not improve substantially during the Obama administration. Yes, the US proposed and voted in favor of UNSC Resolution 1970 referring the situation in Libya to the ICC on February 6, 2011. At the same time, however, it reversed the Bush administration position on Darfur, ending sanctions in its efforts to promote the peace process in South Sudan. Furthermore, the administration did not revoke the BIAs negotiated under the Bush administration, nor did it make any formal policy changes regarding the ICC.  The administration upheld aspects of the Bush administration’s ICC policy when doing so was in American interests. For example, on January 31, 2014, Obama issued a memorandum stating that members of the U.S. armed forces participating in a UN Peacekeeping Mission in Mali would be exempt from the risk of prosecution by the ICC because Mali had entered into a BIA under Article 98 of the Rome Statute.

Trump reverted to an overtly hostile policy towards the ICC. In Executive Order 13928 issued on June 11, 2020, Trump declared a national emergency to deal with the “threat to the national security and foreign policy of the United States” posed by the ICC. On April 21, 2021 Biden revoked this executive order, but noted that “the United States continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the United States…and will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction.”

Given America’s at worst overtly hostile and at best ambivalent attitude towards the ICC, S.Res.546 is a surprise. Not only did the Senate unanimously support America’s cooperation with the ICC’s investigation of war crimes in Ukraine, but the lead author of S.Res.546, Lindsey Graham, a staunch Republican, is well aware that support of the Ukraine investigation would contradict US opposition to the ICC’s assertions of jurisdiction over personnel of non-States Parties such as the United States and Russia. The bipartisan support for S.Res.546 signals a shift in the American tone towards the ICC. The old disdain for the ICC that was so apparent in previous administrations is now replaced by a recognition, even among members of the Republican party, that the ICC investigation could be one more potentially useful tool in the face of Russian aggression