AKASAKA Kiyotaka

On July 13 this year, U.S. Secretary of State Marco Rubio declared his intention to dismantle the International Criminal Court (ICC), arguing that the Court poses a grave threat to American sovereignty. The prospect of destroying such an important international institution—one that may be regarded as one of the United Nations’ landmark achievements since the beginning of the twenty-first century—is deeply disturbing. Why, and how, does the United States seek to dismantle the ICC, even though it is not a member of the Court?

The ICC is a relatively new international judicial institution, having been established in 2002. Its roots, however, can be traced back to the Nuremberg and Tokyo Trials held immediately after the Second World War. Its purpose is to uphold the rule of law by investigating and prosecuting those responsible for four major categories of crime: genocide, crimes against humanity, war crimes, and the crime of aggression.

One of the ICC’s defining characteristics is that it holds individuals responsible for such heinous crimes to account. This distinguishes it from the International Court of Justice, which settles legal disputes between states.

The ICC’s founding treaty is the Rome Statute, adopted at a United Nations Diplomatic Conference in 1998. The Japanese government played an extremely important role in the drafting and adoption of the treaty. A senior official of Japan’s Ministry of Foreign Affairs who was responsible for the negotiations at the time later recalled that “without Japan’s cooperation, the treaty probably would not have been concluded.” The United States participated in the negotiations, but its commitment was apparently hesitant.

As of 2026, the ICC has 125 States and territories as Parties, including Japan. However, major powers such as the United States, Russia, China, and India are not parties to the Rome Statute, nor are states such as Israel and Iran. The United States initially signed the Rome Statute but subsequently withdrew its signature.

Among the current members, Japan is the Court’s largest financial contributor, accounting for approximately 16 per cent of its budget, or about ¥3.7 billion annually in fiscal year 2024. In March 2018, Tomoko Akane, a Japanese prosecutor, was elected as an ICC judge. In March 2024, she was subsequently elected President of the Court by her fellow judges, a position she continues to hold.

In principle, the ICC’s primary mandate is to prosecute individuals responsible for crimes falling within its jurisdiction in member States. To date, its convictions have largely involved leaders of rebel movements and armed groups in African countries such as the Democratic Republic of the Congo, the Central African Republic, Mali, and Uganda. Most of these situations were referred to the Court by the states concerned themselves. No sitting head of state or head of government has so far been convicted by the ICC.

Nevertheless, the ICC may exercise jurisdiction over individuals from non-member states when alleged crimes are committed on the territory of a State Party or when a situation is referred to the Court by the UN Security Council. The ICC does not stand above national courts. Rather, it is complementary to them. Under the principle of complementarity, the ICC may intervene only when the states concerned are genuinely unable or unwilling to investigate and prosecute the crimes themselves.

This is why arrest warrants have been issued for Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu, despite Russia and Israel not being parties to the Rome Statute, in connection with alleged crimes committed in the territories of Ukraine and the State of Palestine, both of which are Parties to the Rome Statute.

The ICC presumably concluded that, although Russia and Israel possessed the capacity to investigate and prosecute the alleged crimes, they lacked the willingness to do so. No American has been arrested by the ICC. However, in 2017 the ICC Prosecutor sought to pursue an investigation into alleged crimes involving U.S. military personnel and CIA officials in Afghanistan, including allegations of torture and other abuse.

The United States has reacted fiercely, arguing that any attempt by the ICC to prosecute American military personnel or government officials constitutes a direct threat to U.S. sovereignty. Consequently, Secretary Rubio has asserted that the United States will use every diplomatic and administrative means available to dismantle the ICC, steadily and “brick by brick.” He is also reportedly pressing allies and partner countries that depend on U.S. support to withdraw from the ICC, cease their assistance to it, or otherwise refuse to cooperate with the Court.

Furthermore, on August 18, Secretary Rubio announced sanctions against ICC President Tomoko Akane and a senior prosecutor on the grounds that the ICC was “maliciously abusing its authority.” The sanctions freeze any assets they may hold in the United States, prohibit certain transactions through U.S. financial institutions or in U.S. dollars, and generally bar them from entering the United States.

President Akane has previously voiced concern that, if the United States were to impose severe sanctions, it could become practically impossible for the ICC to continue operating. The danger would be even greater if the ICC itself, rather than merely individuals associated with it, were to become the target of sanctions. Banks and companies around the world might then cease doing business with the Court, making it difficult or impossible to pay staff salaries and potentially paralysing the organisation’s operations. In such circumstances, the ICC could effectively cease to function.

The European Union has countered Secretary Rubio’s remarks in notably strong terms, reaffirming its full and continuing support for the ICC. The Japanese government has also stated, through Chief Cabinet Secretary Kihara, that Japan has consistently supported the ICC, although it has avoided direct criticism of the United States. Following the announcement of sanctions against President Akane and other official, Prime Minister Sanae Takaichi said that she regarded the measures as very unfortunate and that Japan would continue to address the matter while maintaining close communication with the United States and other relevant countries.

Judging from Secretary Rubio’s statements, his intention to dismantle the ICC does not appear to be a bluff. He seems genuinely determined to do so. For the time being, President Akane may have little choice but to exercise the utmost patience—to endure until the storm has passed. Depending on future political developments in the United States, there remains at least the possibility that Congress could act to restrain what its opponents regard as the excesses of the Trump administration.

At the same time, the ICC itself has room for improvement. To date, the rather heavy-handed approach associated with the tenure of British prosecutor Karim Khan has attracted considerable attention. If one knows that stepping on a tiger’s tail will inevitably provoke it to bite back, such a course of action calls for the utmost caution.

The ICC was originally intended to deal only with the most serious crimes and to intervene, on a complementary basis, only when national judicial systems were unwilling or unable genuinely to act. Yet, some critics argue, the Court has at times strayed from its original design.

Under these circumstances, potential measures that President Akane might consider include the following:

1. Seeking urgent assistance from the Japanese government, European countries, and other States Parties in lobbying Washington in defence of the ICC.
2. Asking the Assembly of States Parties to consider leaving the position of Prosecutor vacant for a period, rather than immediately appointing a successor to Karim Khan, who was removed amid allegations of sexual harassment.
3. Privately and discreetly encouraging the Office of the Prosecutor, for the time being, to exercise particular caution with regard to any pursuit of cases involving U.S. military personnel or government officials.
4. With regard to Israeli Prime Minister Netanyahu and other senior Israeli government officials, avoiding unnecessarily provocative public statements or excessive media attention.

Naturally, it would be extremely difficult for President Akane to pursue such measures, as they could be seen as compromising the dignity and integrity expected of a judge committed to justice and the rule of law. Yet, if the present situation is simply allowed to continue, the ICC may indeed be dismantled by the United States. There is a danger of “killing the cow while trying to trim its horns”—destroying the institution in the pursuit of principles that are themselves intended to preserve it. Even if this requires some degree of compromise on matters of principle, every possible avenue must be explored to prevent the Court from being dismantled.

In the history of the United Nations since the beginning of the twenty-first century, the ICC is one of the most significant achievements, alongside the doctrine of the “Responsibility to Protect” (R2P). It is also an international institution in whose creation and subsequent operation Japan has played a pivotal role. Once the ICC is destroyed, rebuilding it would be extraordinarily difficult.

This is therefore the moment for Japanese diplomats to put their considerable diplomatic skills to use. Voices are already emerging from Europe and elsewhere calling on Japan to play a more active role in efforts to save the ICC. I sincerely hope that the Japanese government will maintain close contact with President Akane and undertake vigorous and concerted diplomatic efforts to prevent the dismantling of the ICC.

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AKASAKA Kiyotaka is President of the English Language Education Council （ELEC）and former Under-Secretary-General of the United Nations.