The case against the ICC Rome Statute
Why the US and Israel are not party to the Rome Statute.
When 120 nations voted to establish the International Criminal Court (ICC) through the Rome Statute in 1998, it marked an ambitious leap toward global justice. Yet the absence of two significant democracies—the United States and Israel—highlighted fundamental tensions between international jurisdiction and constitutional democracy that exist to this day. Their resistance reflects not moral opposition to prosecuting war crimes, but rather profound constitutional incompatibilities and well-founded concerns about the court's structure, accountability, and vulnerability to political manipulation.
Constitutional Barriers in American Law
The United States' primary objection stems from an irreducible constitutional conflict. Article III of the US Constitution vests judicial power exclusively in American courts, making submission to ICC jurisdiction fundamentally problematic. The Supreme Court established in Ex parte Milligan (1866) that "every trial involves the exercise of judicial power," and courts not properly established under Article III can exercise "no part of the judicial power of the country." This principle, far from being a mere technicality, reflects the Founders' determination to ensure that American citizens would be tried only by courts bound by constitutional protections.
The divergence between ICC procedures and constitutional guarantees proves particularly stark. While the ICC nominally promises trials "without undue delay," its predecessor, the International Criminal Tribunal for Yugoslavia (ICTY), routinely held defendants for years before trial. ICTY prosecutors argued that up to five years of pre-trial detention would be acceptable, citing European human rights precedents. Such practices mock the American conception of justice, where the Speedy Trial Act mandates trials within 70 days—a reflection of the Constitution's emphasis on presumption of innocence.
Even more troubling is the ICC's departure from fundamental fair trial guarantees. The Sixth Amendment's confrontation clause ensures defendants can face their accusers and challenge hearsay evidence. Yet the ICC, following ICTY precedent, permits anonymous witnesses and virtually unlimited hearsay in proceedings that often occur partly in secret. The constitutional right against double jeopardy prohibits appealing acquittals, while the ICC allows prosecutors to appeal every acquittal—as regularly occurred at the ICTY.
Perhaps most fundamentally, the ICC provides no right to trial by jury—a guarantee so essential to American justice that it appears twice in the Constitution. As Justice Joseph Story explained, jury trials serve not merely to determine facts but as a "fundamental check on the abuse of power" and a guard against "oppression and tyranny on the part of rulers." The ICC's rejection of jury trials reflects its institutional design, which concentrates investigative, prosecutorial, and judicial functions within a single bureaucratic structure.
Israel's Constitutional Framework
Israel's objections parallel American concerns while reflecting its unique constitutional structure. Though lacking a single constitutional document, Israel's Basic Laws function as a constitutional framework protecting fundamental rights and democratic governance. These laws guarantee due process, fair trials, and protection against arbitrary detention—rights that can only be limited by domestic legislation meeting strict proportionality tests and alignment with Israeli values.
The Basic Laws establish that human rights in Israel derive from recognizing human dignity and liberty as inviolable principles. Submitting to ICC jurisdiction would effectively circumvent these constitutional protections, allowing an external body to prosecute Israeli citizens without the safeguards deemed fundamental to Israeli democracy. This proves particularly problematic given Israel's need to maintain robust self-defense capabilities while adhering to humanitarian law in asymmetric conflicts.
The Sovereignty Dilemma
Beyond specific constitutional conflicts lies a deeper challenge to democratic sovereignty. ICC membership would transfer ultimate accountability from voters to an international body whose composition reflects no democratic principles. As Alexis de Tocqueville presciently observed, "He who punishes the criminal is the real master of society." This transfer of punitive authority represents a profound surrender of self-governance—what the source material calls "the first human right, without which all others are simply words on paper."
ICC supporters counter that the principle of "complementarity" preserves national sovereignty by deferring to domestic courts unless they prove "unwilling or unable" to prosecute. Yet this protection proves illusory given the ICC's sole discretion to determine whether national proceedings are "independent and impartial." This creates an insoluble paradox for democratic leaders who, as both chief executives and commanders-in-chief, oversee both military operations and law enforcement. The ICC could readily deem any such leader inherently incapable of impartially investigating their own decisions.
The Political Weaponization Problem
Experience suggests these concerns transcend theory. Despite its humanitarian objectives and unprecedented precision, NATO's 1999 air campaign in Kosovo faced investigation by ICTY prosecutors responding to pressure from Russia, China, and human rights activists. Though ultimately declining to file charges, prosecutors tellingly based this decision not on finding no violations but on the law's lack of clarity and evidentiary challenges.
This elasticity of international humanitarian law poses acute risks for nations regularly confronting asymmetric threats. Both the United States and Israel routinely face adversaries who deliberately operate among civilians, creating precisely the complex targeting decisions most vulnerable to second-guessing by ICC prosecutors applying evolving and subjective standards. As ICTY prosecutors acknowledged, military commanders and human rights lawyers often reach divergent conclusions about proportionality in close cases.
The Washington Precedent
A historical example illuminates these concerns. As a young British officer in colonial Pennsylvania, George Washington lost control of his Indian allies who killed French prisoners after a skirmish. Though Washington attempted to stop the killings, modern command responsibility doctrines could have deemed him criminally liable. This episode illustrates how contemporary international law can criminalize the inherent uncertainties of combat, especially when applied retrospectively through different cultural and historical lenses.
The Democratic Alternative
Rejection of ICC jurisdiction does not equal rejection of accountability. Both the United States and Israel maintain sophisticated military justice systems and civilian oversight mechanisms. American service members face court-martial under the Uniform Code of Military Justice, while civilian leaders remain accountable through constitutional processes including impeachment. Israel's military advocate general actively investigates alleged violations, while its Supreme Court exercises remarkably broad oversight of military operations.
These democratic mechanisms ensure accountability while preserving sovereign control over the interpretation and application of international humanitarian law. This proves particularly crucial given that reasonable military commanders—let alone judges from different legal traditions—often disagree about proportionality and necessity in complex combat situations. Democratic accountability allows these judgments to reflect national values and security requirements while remaining answerable to voters.
Structural Flaws and Reform Prospects
The ICC's foundational flaws extend beyond specific procedural deficiencies. The court's structure concentrates investigative, prosecutorial, and judicial functions within a single bureaucratic entity with minimal external checks. ICC supporters like former ICTY Prosecutor Louise Arbour argue against designing institutions around presumed bad faith. Yet this reflects precisely the naïveté about power that America's Founders rejected.
As James Madison observed, the great challenge lies not merely in enabling government to control the governed but in obliging it to control itself. The ICC's design violates this principle by creating vast prosecutorial discretion without meaningful accountability. Moreover, the court's composition process gives authoritarian regimes equal voice in selecting prosecutors and judges, despite their demonstrably different approaches to justice and human rights.
Potential reforms might strengthen deference to democratic national courts, establish clearer standards for determining domestic unwillingness to prosecute, enhance due process protections, and weight voting rights toward nations with demonstrated commitment to rule of law. Yet such changes would require broad consensus among member states, many of whom benefit from the current structure's susceptibility to political manipulation.
The Question of Universal Jurisdiction
ICC advocates contend that certain crimes so offend humanity's conscience that they transcend national sovereignty. This argument carries undeniable moral force regarding genocide, crimes against humanity, and grave breaches of the laws of war. Yet it elides crucial questions about who determines when such crimes have occurred and through what procedures.
Universal jurisdiction need not require universal process. Different legal systems can enforce universal norms through varied mechanisms reflecting their constitutional traditions. The challenge lies in harmonizing this diversity with meaningful international standards. The ICC's current structure instead imposes a single procedural framework that often conflicts with advanced democratic systems' protections for individual rights.
Prospects and Policy Implications
The persistence of American and Israeli opposition to ICC jurisdiction underscores fundamental tensions between universal jurisdiction and constitutional democracy. These nations' non-participation reflects not rejection of international justice but principled defense of democratic constitutionalism and sovereignty. Their experience suggests that effective international criminal justice requires mechanisms more compatible with advanced democratic legal systems.
Until such reforms materialize, the United States and Israel will likely maintain their position outside the ICC system while supporting case-specific tribunals and strengthening domestic accountability mechanisms. This approach allows pursuit of international justice while preserving constitutional rights and democratic sovereignty. The challenge for the international community lies in developing institutions that can bridge this divide—upholding universal norms while respecting democratic legal traditions.
The road ahead requires careful balancing of competing principles: universal justice versus national sovereignty, international standards versus constitutional rights, global accountability versus democratic control. Success demands innovation in international institutional design, not merely replication of existing models. Until then, American and Israeli non-participation serves as a crucial reminder that advancing international justice requires attending not only to noble ends but to the democratic legitimacy of means.
Aurthur is a technical journalist, SEO content writer, marketing strategist and freelance web developer. He holds a MBA from the University of Management and Technology in Arlington, VA.
