Power Is Not Authority: Why the United States Cannot Abolish the International Criminal Court

The United States has no unilateral authority to dismantle the International Criminal Court (ICC). This is not a matter of political preference, sympathy for the Court or disagreement with American foreign policy. It follows from the elementary logic of international law. An institution established through lawful agreement among sovereign states cannot be abolished by another state simply because that state possesses sufficient economic, military or technological power to interfere with its operations. To claim otherwise is to confuse the capacity to destroy something with the authority to determine its existence.

The ICC was established under the Rome Statute, adopted in 1998 and entering into force in 2002. Article 4 establishes the Court’s international legal personality (United Nations, 1998). Its existence arises from an agreement among sovereign states, which have collectively established the institution, its jurisdiction, its responsibilities and the procedures governing its operation. The United States is not a party to that agreement. It has neither constituted the Court nor acquired unilateral authority over its existence. This distinction is fundamental because legal authority does not arise simply from possessing the means to impose an outcome. It arises from recognised relationships of competence, obligation and reciprocal constraint.

International treaty law makes this explicit. Article 34 of the Vienna Convention on the Law of Treaties establishes that treaties create neither rights nor obligations for third states without their consent. Article 54 provides for treaty termination under its provisions or through the consent of its parties, while other articles specify additional grounds and procedures (United Nations, 1969). These rules establish that legal relationships are constituted, modified and terminated through recognised legal processes. The United States cannot acquire a power of termination merely by refusing to participate. Non-participation does not create superior authority over those who have agreed to participate.

The same reasoning follows from sovereign equality, established under Article 2(1) of the United Nations Charter (United Nations, 1945). Sovereignty is necessarily reciprocal. The United States claims independence in determining its own legal and political commitments, but that independence exists within an international order recognising the corresponding independence of other states. If American sovereignty entitled it to extinguish institutions established by others, sovereignty would cease to be reciprocal. It would become a hierarchy in which the strongest state determined which collective arrangements were permitted to exist. That is not sovereign equality. It is domination.

The distinction between legal existence and operational capacity is equally important. A government could destroy a courthouse, imprison its judges, confiscate its records and prevent its proceedings without acquiring the legal authority to abolish the court. The institution might become incapable of functioning, but its legal existence would not automatically disappear. The same applies to the ICC. Financial sanctions, technological restrictions and economic coercion can interfere with its operations. They cannot, by their effectiveness alone, repeal the Rome Statute, extinguish the Court’s legal personality or terminate the obligations of its participating states.

This exposes the logical contradiction in any claim that American power confers authority to dismantle the Court. For such a claim to succeed, an additional legal principle would be required: that control over an institution’s material dependencies entitles an external power to determine its legal existence. No such general principle exists in the Rome Statute, the Vienna Convention or the United Nations Charter. Accepting it would fundamentally alter the meaning of legal authority. Every international institution would exist only at the discretion of whichever state possessed sufficient resources to disable it. The distinction between law and coercion would collapse.

The United States remains entitled to contest particular exercises of ICC jurisdiction. Article 12 of the Rome Statute establishes conditions under which the Court may exercise jurisdiction, including territorial jurisdiction concerning nationals of non-party states (United Nations, 1998). These provisions can be disputed through applicable legal processes. But disagreement with a court’s jurisdiction does not confer authority to abolish the court itself. Nor does domestic legislation authorising sanctions independently establish their legitimacy under international law. Whether particular sanctions violate additional international obligations requires separate legal examination.

The conclusion is straightforward. The United States cannot lawfully terminate the ICC through unilateral coercion because coercion is not a recognised act of institutional dissolution. To accomplish lawful termination, the relevant legal relationships would have to be changed or extinguished through competent international legal processes. Destroying the institution’s capacity to function does not accomplish that legal transformation.

Power can interrupt, obstruct or destroy. It cannot, merely through doing so, constitute the authority it lacks. If international law is to mean anything beyond the preferences of its most powerful participants, this distinction must hold. Otherwise, sovereignty becomes subordination, legal independence becomes material dependency, and the rule of law becomes another name for the exercise of power.

References

United Nations (1945) Charter of the United Nations. San Francisco: United Nations.

United Nations (1969) Vienna Convention on the Law of Treaties. 1155 UNTS 331.

United Nations (1998) Rome Statute of the International Criminal Court. 2187 UNTS 3.