From the time that US President Barack Obama came into office there has been talk of the United States joining the International Criminal Court, but those efforts may be for the time being. It appears as though this administration has not come much further in being convinced that participation in the ICC is either beneficial to US interests or necessary, and it remains in doubt with good reason.
The of the International Criminal Court was adopted in 1998, and the ratification of the Rome Statute in 2002 by 60 countries established the ICC as a permanent tribunal to prosecute individuals for genocide, war crimes and crimes against humanity.
In 2000 during the Clinton Administration, the United States signed the Rome Statute, but did not submit the treaty to the Senate for ratification, pending further assessment of the ICC's functioning. President George W. Bush ordered the US to suspend its signature of the Rome Statute in May 2002 out of concern that politically-motivated lawsuits would be initiated against American citizens abroad due to global expansion of the US military. Instead, in accordance with Article 98 of the Rome Statute, the US entered into bilateral immunity agreements with over 100 countries to prevent foreign states from surrendering Americans to the ICC.
Despite continued efforts by President Obama to distance himself from the policies of his predecessor, the fear of unfair prosecutions of US citizens by the ICC still gives him pause. Citing this reason, Stephen Rapp, US Ambassador-at-Large for War Crimes Issues, recently that no US President will be likely to submit the ICC treaty to the Senate for ratification in the "foreseeable future." Ambassador Rapp also cited the existence of a strong US court system as an additional barrier to ratification.
The purpose of the ICC is to function as a complementary court to a country's already existing national judiciary. Pursuant to Article 17 of the Rome Statute, the ICC only has the authority to act when a country is "unwilling or unable genuinely to carry out the investigation or prosecution." A country may be considered "unwilling" if it is clearly shielding someone from responsibility for crimes that are within the ICC's jurisdiction to prosecute. A country may be found to be "unable" to prosecute "due to a total or substantial collapse or unavailability of its national judicial system." So, for Western countries like the United States that have robust democratic institutions and thriving and functioning judiciaries, joining the ICC can be seen as a political move, a diplomatic gesture, but not a legally necessary one.
The US is not entirely opposed to the ICC in principle and has supported and acknowledged the ICC's authority to investigate and prosecute war crimes in places like Darfur, Sudan. But then again, Sudan's legal system has allowed for ethnic cleansing and genocide in Darfur by the Sudanese regime. This very fact necessitates prosecution by the ICC because Sudanese national courts could be considered both "unwilling" and "unable" to prosecute according to the standards set forth in Article 17.
The ICC is only intended to have jurisdiction if a country's judicial infrastructure is too weak or its government too corrupt to effectively prosecute. Ideally, the ICC should be a court of last resort rather than a court of first instance and it is, therefore, imperative that the US pursue other avenues to achieve that goal. In light of that, Ambassador Rapp maintains that the US remains committed to strengthening national judiciaries, supporting the establishment of international criminal tribunals, and working with states that fairly exercise universal jurisdiction in instances where there is a connection of the state to the crime being charged - a strategy that will ultimately be more effective in the long run to help achieve global justice.