Case Explained: Force, Vetoes, and Sanctions: Why the ICC Can’t Touch a US President – JURIST – Commentary – Legal Perspective

The ICC was built to hold the most powerful leaders accountable for the most serious crimes — but a combination of treaty withdrawal, veto power, domestic immunity doctrine, and outright threats of force ensures that U.S. presidents remain beyond its reach.

The International Criminal Court (ICC), established under the Rome Statute, has jurisdiction over war crimes, crimes against humanity, genocide, destruction of historic and religious monuments, and witness intimidation. It has prosecuted several individuals for these crimes, and in 2024, issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for the war crimes of starvation as a method of warfare. Currently, dozens of defendants from various countries face arrest warrants under the Rome Statute, the founding global treaty for prosecuting international crimes.

Yet despite the ICC’s expanding reach, one category of actors remains effectively beyond its grasp: sitting and former US presidents.

This commentary outlines several ways in which US presidents are shielded from international accountability for crimes listed in the Rome Statute (covered crimes). Unfortunately, the shield is built on threats, the use of force, and economic sanctions against the ICC prosecutorial staff, including their attorneys, tactics that would be considered obstruction of justice in federal courts for the prosecution of federal crimes.

Rome Statute

The Rome Statute is the most comprehensive international criminal law treaty under which heads of government and state can be held accountable for war crimes, crimes against humanity, and other listed crimes (covered crimes). The US first signed the Rome Statute, but later withdrew its signature, thus refusing to bind itself even to the treaty’s object and purpose, much less its full obligations. Under the US Constitution, a treaty such as the Rome Statute creates no rights and obligations without the advice and consent of the Senate.

Article 27 of the Statute states that it applies “equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative, or a government official shall in no case exempt a person from criminal responsibility under this Statute.” Thus, presidents and prime ministers have no immunity whatsoever under the Statute.

The Rome Statute does not apply to the covered crimes committed within the jurisdiction of a country that is not a party to the Statute. Because the US is not a party to the Rome Statute, the ICC has no jurisdiction over crimes committed by a US president within the United States and territories under US control, such as Puerto Rico or the US Virgin Islands. US presidents are similarly beyond the reach of the ICC jurisdiction for crimes committed in another country, such as Israel, which is not a party to the Rome Statute. Note, however, Israel does not include the occupied territories, like Gaza or the West Bank.

However, US presidents are subject to the ICC’s jurisdiction under the Rome Statute if they commit covered crimes in a State Party to the Statute, such as the State of Palestine, Venezuela, and 123 other countries. So legally, US presidents are not fully exempt from the Rome Statute or possible prosecution by the ICC.

However, the US has signed bilateral immunity agreements with nearly 100 countries, under which nations are bound not to surrender US citizens to the ICC’s jurisdiction. Some of these nations were coerced into signing such immunity agreements under the threat of sanctions. However, many such agreements did not enter into force for various reasons. It is doubtful whether these bilateral immunity agreements, which undermine the Rome Statute, can withstand legal scrutiny.

Even where bilateral agreements fall short, the US retains another structural check on ICC reach: its permanent seat on the UN Security Council.

UN Security Council

Article 13(b) of the Rome Statute grants the Court jurisdiction over individuals whom the UN Security Council, acting under Chapter VII of the UN Charter, refers to the Court. The Security Council can refer any individual, regardless of their rank or position, to the ICC, whether the country of which the individual is a national is a party to the Rome Statute.

Thus, theoretically, the US President is vulnerable to such a possibility. However, since the US can veto any Security Council resolution, it is unlikely the US would allow this to happen in the case of a sitting president. There is a remote possibility that the US may abstain or vote for the resolution to refer a former US president to the ICC.

Yet even if the Security Council route were somehow activated, domestic law provides a parallel layer of insulation through the principle of complementarity and absolute immunity.

Complementarity

The Rome Statute (Article 17) endorses the principle of complementarity, which allows states to prosecute the covered crimes in domestic courts, thereby avoiding the need for the ICC to prosecute the accused. The ICC will hear a case only if the state is genuinely unwilling or unable to investigate or prosecute it.

Under the Supreme Court ruling in Trump v. United States, sitting and former presidents enjoy absolute immunity from criminal prosecution for any crime related to their official acts. US domestic courts may prosecute presidents if the crimes in question were not part of their official acts. In most criminal cases, however, the domestic option to prosecute the President is unavailable, allowing the ICC to exercise its jurisdiction.

The “unofficial acts” exception is technically a window for accountability, but in practice, the Supreme Court’s definition of “official acts” is so broad that it covers almost any communication or command involving the executive branch regarding the use of force related to foreign policy, where the president is elevated to be the sole organ.

Provided proper jurisdiction is established, the ICC has the legal authority to issue an arrest warrant against a current or former US president. The Court would do so fully aware that enforcement is highly unlikely and may provoke significant US countermeasures, in line with established US policy and legal responses.

Congress has gone further still, enacting legislation that authorizes the use of force to prevent any ICC prosecution from proceeding.

Hague Invasion Act

In 2002, not long after the 9/11 terrorist attacks and the invasion of Afghanistan, Congress passed the American Servicemembers’ Protection Act (2002), nicknamed the Hague Invasion Act, to oust the ICC’s jurisdiction by force. The Act accurately anticipated the possibility of ICC prosecution. “In addition to exposing members of the Armed Forces of the United States to the risk of international criminal prosecution, the Rome Statute creates a risk that the President and other senior elected and appointed officials of the United States Government may be prosecuted by the International Criminal Court.”

The Hague Invasion Act grants the US President the authority to use “all means necessary and appropriate,” including military force, to free any detained US or allied individual from ICC custody. This statute would allow the US to use force in case a US president or the Israeli Prime Minister is brought before the ICC.

The Act also warns third parties that might enforce the ICC arrest warrant against the US President or a US ally that the US may respond with force or economic sanctions to discourage nations from attempting such actions. The Hague Invasion Act also applies to the Netherlands, the seat of the ICC, and the US may attempt to free the detained president from the Court.

Representative Ilhan Omar introduced a bill in April 2022 to repeal the Hague Invasion Act. This bill seems more like a protest than a real effort to repeal it. Right at the beginning of his second term, the Trump administration strengthened this legislative shield with an executive order that added new levels of personal protection for a legion of individuals.

Protective Executive Order

In February 2025, President Trump issued Executive Order 14203 to protect himself and Israeli Prime Minister Benjamin Netanyahu, who has an outstanding arrest warrant against him, from ICC jurisdiction. The Order states: “The ICC has no jurisdiction over the United States or Israel, as neither country is a party to the Rome Statute or a member of the ICC.” The Executive Order lists several protected individuals, reinforcing the Hague Invasion Act.

The Executive Order targets the property of the ICC’s prosecutorial staff who investigate, arrest, detain, or prosecute protected persons. Karim Khan, the ICC prosecutor, was placed on the sanctions list. These sanctions are familial in scope, as they apply to the prosecutorial staff and their “immediate family members.”

Thus, both the Hague Invasion Act and Executive Order 14203 counter legal provisions of the Rome Statute through the use of force and economic sanctions. Legally, the investigation and prosecution of any covered crime remain valid even if the threat to prosecutors is credible. Domestically, federal law prohibits and punishes individuals who threaten prosecutors or other officials to influence, intimidate, or hinder them in performing their duties. This is known as obstruction of justice.

Theoretically, the next US president might revoke Executive Order 14203, which is much easier than repealing the Hague Invasion Act. However, in practice, the current and former US presidents will likely remain insulated both at home and abroad.

Conclusion

The Rome Statute explicitly rejects immunity for heads of state, and, exercising proper jurisdiction, the ICC can issue an arrest warrant against a current or former US president. However, the warrant will likely go unenforced. The combined effects of not being a state party to the Rome Statute, the Security Council veto power, domestic absolute immunity for official acts, and coercive measures such as the Hague Invasion Act, reinforced by Executive Order 14203, create a lifelong shield around US presidents. This protection is strategic and maintained through threats of force and economic sanctions against the ICC. International criminal law, designed to be universal, thus reveals a structural imbalance: it cannot reach US presidents for prosecution, even for the most serious crimes they may commit.

Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments via email.