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The International Criminal Court (ICC) treaty has been signed by 121 countries. A number of countries are not parties; China, Russia, United States. From the countries that are not parties to the ICC, the United States is one that often tends to associate itself with democracy and rule of law. Therefore, my question is specifically about why the US have not ratified, and not why Cuba, China or Saudi Arabia have not.

Why have the United States not signed and ratified the International Criminal Court?

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    Other than the open revolt that would ensue from all sides in the US? The fact that the people who would have to sign it are likely to end up in front of that court shortly after is probably the second reason
    – SoylentGray
    Jan 30, 2013 at 22:29
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    The official reason is rarely the real reason for anything. The court would subject US Citizens to arrest by foriegn bodies and oblige the US to consent to these arrests. Then comply with the rulings. The US is not going to accept those terms
    – SoylentGray
    Jan 30, 2013 at 22:35
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    @Chad Yet, many countries do, but the U.S. don't. Therefore I think it's a valid question why they don't.
    – gerrit
    Jan 30, 2013 at 22:38
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    Probably because people of the US want to remain being sovereign on their territory and aren't keen on surrendering their power to the hands of yet another vast bureaucracy. There's enough trouble with Federal Government to support yet another, bigger one, which would not be bound by the Constitution and not be controlled by regular elections. It's basically all the downsides of the big government without any built in checks and balances.
    – StasM
    Feb 23, 2013 at 21:27
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    @gerrit Courts are not neutral in the US or in free countries, they are biased to the laws they uphold. Moreover, there is no such thing as a pure supranational matter in democratic republics. As we like to say, "all politics is local." Unlike most of the world, our government has three truly separate but equal branches. The executive and/or legislative branches cannot adopt a court above the Supreme Court without violating this principle and the separation of power. We cherish being free without dictatorial institutions which happens to be the norm in most of the world.
    – user1765
    Jun 2, 2013 at 17:12

3 Answers 3

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International institutions (especially in the last 30 years) tend to be dominated by countries generally considered to be antagonistic to the interests of the Unites States.

As such, US is rightfully worried that joining an institution which has a binding power over USA without any oversight or veto is bound to end up detrimental to its interests, with US citizens and leaders being convicted on a political ground by a body dominated by forces less interested in promoting justice and prosperity and more interested in "screw the Great Satan".

Given the UN's track record, I don't see such worries as baseless:

  • United Nations Disarmament Commission reelected Iran to the senior office of a vice chairman. The commission also elected Syria as its recording secretary.

  • Elected Iran to Commission on the Status of Women

  • North Korea chaired the Conference on Disarmament

  • Iran elected as General Assembly vice president.

  • Saudi Arabia to "U.N. Women's board" agency.

  • Syria was appointed to two human-rights-related committees of the United Nations Educational, Scientific and Cultural Organization (UNESCO) even as the Syrian government was killing protesters in its own country.

Given that - in the words of an Aussie newspaper covering one of these stories - "lunatics are running the asylim", there's a significant concern that ICC would end up exactly the same.

Considering the repercussions to USA of subjecting itself to jurisdiction of such, it seems significantly more prudent to not join without some guarantee that ICC wouldn't turn into Yet Another OIC puppet.

A separate but related concern is which laws would be applicable.

As just one example, UNCHR seems to greatly care about an all-important right of having a religion not be offended (1 guess which religion's adherents push for that), with "be offended" being in the eye of beerholder. Should that view prevail, ICC might be used to circumvent freedom of speech enshrined in US Constitution's First Amendment.

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    Islamists aren't likely to be "beerholder"s. :)
    – Andrew Grimm
    Jan 31, 2013 at 2:50
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    @AndrewGrimm - you'd be surprised. As with all other people wishing to control others, rules are made for OTHERS, not them.
    – user4012
    Jan 31, 2013 at 3:47
  • Ok, so that spelling was deliberate, then.
    – Andrew Grimm
    Jan 31, 2013 at 4:07
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    @AndrewGrimm - sorta. And I like the expression better that way.
    – user4012
    Jan 31, 2013 at 4:08
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Fourteenth Amendment to the United States Constitution says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Joining the ICC would require that privileges and immunities enjoyed by citizens of the United States and its military be denied. So if the treaty was ratified it would violate the 14th amendment of the constitution.

In addition Article III of the Constitution states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The ICCT would take due process and the ultimate oversight of said process and transfer it to the ICC.

In order to join the ICC The US would need to either amend the existing constitution or enact a new government that allowed it.

The former Secretary of State Henry Kissenger had this to say about the international courts when he was summoned to answer for the 1973 Chile Coup where the US government may have had some involvement.

In less than a decade, an unprecedented movement has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subjected to systematic debate, partly because of the intimidating passion of its advocates. To be sure, human rights violations, war crimes, genocide, and torture have so disgraced the modern age and in such a variety of places that the effort to interpose legal norms to prevent or punish such outrages does credit to its advocates. The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.

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    Would it? It does say "without due process of law"...
    – gerrit
    Feb 5, 2013 at 20:22
  • @gerrit - And in the US that includes the ability to ultimately appeal any decision to the US Supreme court.
    – SoylentGray
    Feb 5, 2013 at 20:48
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    Yet it is a signature of the International Court of Justice.
    – gerrit
    Mar 11, 2013 at 17:27
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    @gerrit which the US has the ability to veto any action that the ICJ would take. It is a tiger with no teeth as far as the US is concerned.
    – SoylentGray
    Mar 12, 2013 at 1:58
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    Actually, the reason the ICJ is ok under the US Constitution is that it can only hear disputes between nation states; you can't sue a person or organization in the ICJ. The ICJ functions more like a forum for international diplomacy than like a real court; therefore, it does not usurp the Supreme Court's role as the highest court in the land, as specified in Article III.
    – Nobody
    May 19, 2017 at 12:06
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It would be disadvantageous to the United States to join the International Criminal Court, and they have no obligation to. The ICC would be able to prosecute US citizens for crimes, just as it would be able to prosecute other citizens, and that would limit what the US would be able to do.

What the ICC can prosecute for:

  • War crimes
  • Genocide
  • Crimes against humanity
  • Crimes of aggression

While it is up for debate whether the United States has committed any of these actions, if a country accused the United States of performing one of these actions, there would be a large legal battle which could end up in people being charged with crimes. Issues such as drone strikes would come under scrutiny, and while the United States claims that those are legal under international law, not everybody does.

Additionally, as DVK talked about, a lot of countries have anti-United States sentiments. This could lead to the US being tied up in a great number of legal battles that could ultimately hurt the US.

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