Why the US still does not recognize the International Criminal Court

President Joe Biden calls the International Criminal Court’s plans to seek arrest warrants for the leaders of Israel and Hamas “outrageous.” Since the court was created almost a quarter-century ago, the US has refused to become a state party to the court, even though it helped create it. Host Carolyn Beeler speaks with David Scheffer, former US ambassador at large for war crimes issues and a senior fellow at the Council on Foreign Relations.

The World

United States President Joe Biden calls the International Criminal Court’s plans to seek arrest warrants for the leaders of Israel and Hamas “outrageous” for implying that their actions are equivalent.

Since the court was created almost a quarter-century ago, the US has refused to become a state party to the court, even though it helped create it. And it can influence the body.

David Scheffer was the former US ambassador at large for war crimes issues and a senior fellow at the Council on Foreign Relations.

From 1997 to 2001, Scheffer led the US delegation at the talks that established the court. He even signed the treaty on behalf of the US. But then, things took a turn.

Scheffer speaks to The World’s co-host Carolyn Beeler about what happened.

Carolyn Beeler: Take us back to that time. Around 25 years ago, the US was initially enthusiastic about the idea of an International Criminal Court. Why was that? 
David Scheffer: Yes, very much so, because during the 1990s, in the Clinton administration, we were building a lot of war crimes tribunal, the first since Nuremberg, to actually deal with atrocity crimes, namely genocide, war crimes, crimes against humanity occurring in various parts of the world, whether it be Bosnia, Rwanda, Sierra Leone, Cambodia, etc. And there was a sentiment not only in the United States but also around the world, that the time had finally come to build an international criminal court rather than continue to build these individual tribunals, which are very costly and very time consuming to get underway. President Clinton was determined, along with my boss, Madeleine Albright, to push forward and make this happen. The issue was, you know, build it. And so, that was my job as the chief negotiator for the United States at the time. And ultimately, we signed the statute. I did the Rome Statute of the International Criminal Court on Dec. 31, 2000. But thereafter, a new administration came in and the situation simply turned sour. 
Yeah, I want to get into that. Why did the US decide not to become a member of the International Criminal Court? 
Well, I think the argument once the Republican administration came into power under George W. Bush, that this was somehow a danger to the sovereignty of the United States, that somehow it would be a violation of the US Constitution, and that somehow the actions of the US military would be under scrutiny by this court, and therefore, that is an undesirable outcome. And that setback, any prospect of actually joining the court, because that requires a two-thirds vote by the US Senate. 
So, it’s been almost 25 years now that the court has been up and running. The US has gone through several presidents of both parties, many different congresses. Why has the US still not become part of the ICC? 
Well, because I think there’s still a general sentiment that they want to see how the ICC performs, even though it’s been performing for 20 years. And in my view, it’s demonstrated its professionalism and competence. But of course, if it gets involved in controversial issues such as the Israel-Hamas war, then it generates all sorts of political arguments as to whether or not the court is one that is sort of influencing the course of political and military affairs among nations, or just focusing on the rule of law and bringing individuals to justice for violations of atrocity crimes. Sometimes that conflicts with the intentions of various leaders, military and political, in major powers, and that retards the ability to actually forge ahead and finally be part of this court. I mean, the point that I often make is that if the United States were part of the International Criminal Court, as was our intention, we would have much greater influence on the court’s work, the prosecutor’s office. We’d have a judge on the bench. We would have a voice in how the court is run, operated, administered, paid for, etc. We don’t have that voice in the court now because we’re not party to the court, and therefore our influence in the court is rather minimal. 
I did mention earlier, though, the US still does have some influence on the court. What type of influence does it have and how does it exert that influence? 
Well, in a cooperative sense, such as with the Ukraine investigation, the United States can provide very important intelligence information, financial support, support by the Department of Justice in terms of investigations that are undertaken by the ICC. We have a lot of tools. 
And did the war in Ukraine kind of soften the US stance toward the ICC? I know that it was seen as an instrument that might be able to respond to Russia, and maybe something could come of its, you know, pressure on Putin. 
The stance did soften to the extent of even Republican senators approving and supporting US support for ICC investigations in Ukraine, of the atrocity crimes being committed there. 
I should add that while most of the world has signed on to the International Criminal Court, Russia and China have not, neither has Israel. It’s not a party to the ICC. If the court is successful in getting arrest warrants for Israeli leaders, will it actually be able to arrest or charge them? 
Well, not necessarily, because in order to gain custody, these individuals who have to be on the. Territory of a state party of the ICC, and that government would have to be willing. To actually follow through with the arrest warrant, arrest them and transfer them to The Hague. But I think the more important point is that the existence of the arrest warrant does have an effect, because they are then marked as being under severe scrutiny for the alleged commission of atrocity crimes, and it’s going to limit their ability to travel in the world. It’s going to diminish their international standing, even domestically. It can lead to a loss of power because they’re just too much of a liability to the country. 

This interview has been lightly edited and condensed for clarity.AP contributed to this report.

Will you support The World with a monthly donation?

We rely on support from listeners and readers like you to keep our stories free and accessible to all. Monthly gifts are especially meaningful as they help us plan ahead and concentrate on the stories that matter. Will you consider donating $10/month, to help sustain The World? Thanks for your support!