Marco Rubio is right about one narrow fact: the United States is not a party to the Rome Statute. The United Nations’ treaty depositary records that Washington told the Secretary-General in 2002 that it did not intend to become a party and had no legal obligations arising from its 2000 signature. That matters. But it does not prove the larger claim that the International Criminal Court is some rogue tribunal poised to overrule the U.S. Constitution at will. It proves something much more limited: the U.S. chose not to join a treaty system whose rules it now finds inconvenient.
The ICC is not a world government and it is not designed to replace national courts. The Court itself describes the ICC as a “court of last resort” that complements, rather than replaces, national criminal systems. Its jurisdiction is also tightly bounded: it deals with genocide, crimes against humanity, war crimes and aggression, and it acts only when states are unwilling or unable genuinely to investigate or prosecute. That is the opposite of the cartoon version Rubio invokes, in which random foreign judges simply seize American officials and bypass U.S. law.
Rubio’s language also blurs an important legal distinction between not being a party and being beyond all reach. The ICC’s official materials explain that the Court may exercise jurisdiction where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party. The Court may also gain jurisdiction through a UN Security Council referral, and the complementarity principle means a genuine domestic investigation blocks the ICC from stepping in. In practical terms, if the United States investigates and prosecutes serious crimes itself, the ICC is not supposed to displace American courts; it is supposed to stand down.
That point matters because it exposes the weakness in the “American sovereignty” argument. The real sovereignty safeguard is not to destroy international accountability mechanisms. It is to use them as a backstop while keeping domestic justice strong enough that the backstop is rarely needed. The ICC’s design explicitly leaves primary responsibility with national systems. So the cleanest rebuttal to outside jurisdiction is not outrage; it is credible domestic prosecution. Rubio’s framing turns that logic upside down, as though weakening the court somehow strengthens the Constitution. It does not. It only weakens the incentive for powerful states to police themselves.
There is also a deeper political problem with Rubio’s case: it casts the ICC as unaccountable while ignoring the ways the United States has tried to make the Court less effective precisely when it is scrutinising U.S. allies or U.S.-linked conduct. Human Rights Watch reported in 2025 that U.S. sanctions targeted the ICC prosecutor, deputy prosecutors, judges, a UN special rapporteur and Palestinian human rights organisations, and warned that these measures could severely set back the global fight against impunity. HRW also noted that financial institutions often comply with U.S. sanctions out of caution, which can choke off funding and access to banking services. That is not a principled defence of sovereignty. It is pressure designed to shield friends and intimidate the institutions asking hard questions.
If the United States truly believed the ICC was a legal threat to its own citizens, the logical response would be to demonstrate that American courts can and will handle serious international crimes themselves. That is exactly what complementarity is for. But the political rhetoric tends to appear most loudly when accountability approaches politically sensitive targets, especially allies. That tells you a great deal. The objection is often not that the ICC is too powerful. It is that the ICC is occasionally too effective.
Rubio’s “dragged before an international court” language is emotionally effective but legally imprecise. The ICC does not handle ordinary policing, domestic politics or constitutional disputes. Its jurisdiction is restricted to the gravest crimes under international law, and its reach is limited by territory, nationality and the principle of complementarity. Even then, the Court depends on states for arrests and cooperation. HRW has stressed that without arrests, the court cannot provide justice. In other words, the ICC is not a sovereign superstate. It is an instrument that only works when states choose to let the law outrank expediency.
That dependence is why Rubio’s argument ultimately lands in the wrong place. The question is not whether the United States should surrender its courts to a foreign body. It should not, and the ICC structure does not require that. The real question is whether the United States believes any external standard should ever apply when its own system fails, stalls or protects the powerful. A country that claims the moral high ground should not fear a court designed to investigate genocide, crimes against humanity and war crimes when domestic systems are unwilling or unable to act. If anything, that court exists because history has repeatedly shown that national pride is often the first refuge of impunity.
There is a reason the ICC still matters despite its flaws. Human Rights Watch has called it the court of last resort for victims and families who have nowhere else to turn. That phrase is not romanticism; it is a description of the world we actually live in, where powerful states and powerful armed groups can bury evidence, delay justice and run out the clock. The ICC is imperfect, but dismantling or delegitimising it does not create better law. It creates a larger safe zone for those who think their uniforms, flags or alliances should place them beyond reach.
So the more serious response to Rubio is this: the United States does not need to join the ICC to recognise that accountability has value, and it certainly does not need to pretend the Court is unconstitutional merely because it is inconvenient. The U.S. can remain outside the treaty, preserve its constitutional system and still accept that atrocity crimes are too grave to be left entirely to politics. That is not outsourcing justice. It is admitting that justice sometimes needs a second line of defence when the first line fails. The alternative is not sovereignty. It is exceptionalism dressed up as principle.
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