America has a love-hate relationship with the International Criminal Court (ICC). At the moment it is a virulent hate.

Ironically, Washington also claims to be the chief supporter of International law. “The United States does believe that international law matters,” said John Bellinger, the State Department’s chief Legal Adviser. “We help develop it, rely on it, abide by it.”

The problem is that you cannot cherry pick the law. To do so is to choose the road called hypocrisy which leads – eventually – to chaos.

It is the charge of hypocrisy that America risks in its relations with the ICC. It applauded seeing the world’s top criminal court send brutal African dictators to prison. It has celebrated the court’s warrants for the arrest of Vladimir Putin. But it has condemned as “outrageous” the decision of ICC Chief Prosecutor Karim Khan to request warrants for the arrest of Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for war crimes and crimes against humanity committed during the Gaza War.

There are several reasons for American duplicity. Washington fears that the arrest warrants will only make the Israelis more intransigent. It also believes that it is important to be seen to be supporting an ally; and, finally there is the sovereignty issue. As a super power, Washington has difficulty with any international law or organisation which appears to supersede American law.  The US, for instance, has failed to ratify the UN Convention on the Law of the Sea and will almost certainly pull out of the climate change convention – again – if Donald Trump is elected.

Washington has had doubts about the ICC since before its founding by the Rome Statute in 1998. It refused to sign the treaty documents, although 123 other countries (including Britain) have. If a country is a signatory to the Rome Statute then they are obligated to detain and extradite anyone for whom the ICC has issued an arrest warrant. Being a non-signatory, does not protect a country’s citizens from investigation.

The problem for America was the activities of its soldiers and the CIA around the world. In August 2002 President George W. Bush signed the American Service Members Protection Act, aka “The Hague Invasion Act”. This gave the president the power to “use all means necessary and appropriate to bring about the release of any US or Allied personnel being detained, or imprisoned, on behalf of, or at the request of, the International Criminal Court.” Effectively this meant that any country that carried out an ICC arrest warrant against an American citizen risked the wrath of Washington.

Under President Barack Obama Washington’s relationship with the ICC “evolved into positive engagement.” But it quickly deteriorated under Donald Trump when Khan’s predecessor, Fatou Bensouda announced that he would be seeking warrants for war crimes in Afghanistan. A furious Trump threatened prosecution, financial sanctions and barred Bensouda and his colleagues from visiting the US. Attorney General Bill Barr accused the court of “corrupt practices.”

Under Biden relations again improved. The sanctions against Bensouda were lifted and the State Department expressed delighted support for the arrest warrants for Putin. Then Gaza pushed everything back to square one.

BUT – as with most legal matters, there is a loophole. It is called the “Principle of Complementarity.” This recognises that the ICC is a “court of last resort” to which victims can appeal only if the offending state is unwilling or unable to investigate itself. Israel can simply head off the arrest warrants (which still have to be approved by three of the court’s 18 judges), by announcing an investigation into its actions in Gaza.

The US tried this route. In 2009, the Department of Justice announced that it was launching an investigation into alleged abuse in Afghanistan. They opened 101 cases of CIA abuse of detainees. Two of the detainees died. But as of 2024 no charges had been brought and Human Rights Watch reported that none of the victims had even been interviewed.

* Tom Arms is foreign editor of Liberal Democrat Voice and author of “The Encyclopaedia of the Cold War” and “America Made in Britain".