United States Secretary of State Marco Rubio has intensified Washington’s campaign against the International Criminal Court, arguing that the institution has extended its reach beyond acceptable limits and threatens the sovereignty of countries that have never agreed to its authority.

The United States is not a member of the Court. Australia is.

That distinction raises important questions for Australians, particularly members of the Australian Defence Force who may serve in conflict zones overseas.

What is the International Criminal Court? Who controls it? Who committed Australia to its jurisdiction? And could an Australian soldier accused of a war crime be arrested overseas before returning home?

What is the International Criminal Court?

The International Criminal Court, generally known as the ICC, is a permanent international court based in The Hague in the Netherlands.

It was established under the Rome Statute, an international treaty that entered into force in 2002.

The ICC does not deal with ordinary crimes such as robbery, assault, fraud or domestic murder cases. Its jurisdiction is confined to four categories of exceptionally serious international crime:

• Genocide.
• Crimes against humanity.
• War crimes.
• The crime of aggression.

The Court was created to prosecute individuals rather than governments. Presidents, ministers, military commanders and individual soldiers can potentially be investigated if the legal requirements are met.

It is not the same institution as the International Court of Justice, which generally resolves disputes between countries.

Who runs the ICC?

The ICC is an independent international institution rather than an arm of the United Nations or the government of any single country.

Its judges are elected by the countries that have joined the Rome Statute. Those countries collectively form the Assembly of States Parties, which oversees the Court’s administration, approves its budget and elects judges, prosecutors and other senior officials.

The prosecutor is responsible for conducting investigations and bringing cases. Judges determine whether arrest warrants should be issued, whether charges should be confirmed and whether an accused person is guilty.

Australia participates in the Assembly of States Parties and contributes financially to the Court.

Why is the United States resisting the Court?

The United States signed the Rome Statute under President Bill Clinton but did not ratify it and subsequently made clear that it did not intend to become a party.

Washington’s longstanding objection is fundamentally about sovereignty.

American governments have argued that US soldiers, officials and political leaders should not be prosecuted by a court whose authority has not been accepted by the United States.

Rubio has now expanded that resistance through sanctions, travel restrictions and diplomatic pressure intended to discourage other countries from supporting ICC action against American personnel and US allies.

The current American campaign reflects concern that the Court may claim jurisdiction where alleged conduct occurred on the territory of an ICC member country, even when the accused person comes from a country that never joined the Court.

How can the Court claim jurisdiction over someone from a non-member country?

Citizenship is not the only basis for ICC jurisdiction.

The Court may potentially act where:

• The accused is a citizen of an ICC member country.
• The alleged crime occurred on the territory of an ICC member country.
• A non-member country specifically accepts the Court’s jurisdiction.
• The United Nations Security Council refers a situation to the Court.

That means a person from a country that has rejected the ICC may still come within its reach if the alleged crime occurred in a country that has accepted the Rome Statute.

This is one of the central reasons for American opposition.

Who signed Australia up?

Australia signed the Rome Statute in December 1998 under the Howard Coalition government.

The decision to ratify the treaty was subsequently considered by Parliament and was politically contentious, including within the Coalition.

Legislation was passed in 2002 to incorporate the necessary offences and cooperation procedures into Australian law. Australia deposited its instrument of ratification in 2002, and the Rome Statute entered into force for Australia on September 1 of that year.

The responsible government was therefore the government of prime minister John Howard, with Alexander Downer serving as foreign minister.

Australia did not simply surrender criminal authority through an executive announcement. Parliament enacted legislation establishing how Australia would cooperate with the Court and incorporating genocide, crimes against humanity and war crimes into Australian criminal law.

Could an Australian soldier serving overseas be investigated?

Yes.

Consider an Australian soldier deployed overseas who is accused of deliberately attacking civilians, mistreating prisoners or committing some other alleged war crime.

The mere making of an accusation would not allow the ICC to arrest the soldier.

There would first have to be a legal basis for ICC jurisdiction. That might exist because Australia is a member of the Court, because the alleged conduct occurred in an ICC member country, or because the situation had otherwise been referred to the Court.

The prosecutor would then have to investigate, and ICC judges would have to be satisfied that the legal threshold for an arrest warrant had been met.

Even then, the Court is intended to operate as a court of last resort.

Australia gets the first opportunity to act

The ICC operates under the principle of complementarity.

This means national courts retain primary responsibility for investigating and prosecuting alleged crimes.

If Australia genuinely investigated the allegations and, where justified by the evidence, prosecuted the soldier through its own civilian or military justice processes, the ICC would ordinarily not take over the case.

The Court could become involved where Australia was genuinely unwilling or unable to conduct a proper investigation or prosecution.

A decision not to prosecute would not automatically prove unwillingness. There may be insufficient evidence, mistaken identification, lawful military conduct or other valid reasons why charges are not brought.

The ICC would examine whether the national process was genuine—not simply whether it produced the outcome sought by the prosecutor.

Could the soldier be arrested before getting home?

Potentially, yes.

An ICC arrest warrant is not restricted to the accused person’s home country.

If the Australian soldier were in the territory of another ICC member country when a warrant was issued, that country could be asked to arrest the soldier and surrender him or her to the Court.

The arrest could therefore occur:

• In the country where the soldier was deployed.
• At a military or civilian airport.
• During leave in another ICC member country.
• While travelling through an ICC member country on the way back to Australia.
• After returning to Australia.

The decisive issues would include whether an ICC warrant existed, whether the country had received a valid request from the Court and whether that country was legally obliged or otherwise willing to cooperate.

ICC member countries have a general obligation to cooperate with requests for arrest and surrender. Countries that have not joined the Court ordinarily have no Rome Statute obligation to make an arrest, although they may agree to assist voluntarily or may have obligations arising from another legal mechanism.

Could ICC officers simply enter a military base and seize the soldier?

No.

The ICC does not have its own international police force.

Its investigators cannot ordinarily enter a country, overpower local authorities and remove a suspect.

An arrest must be carried out by national authorities acting under their own laws and in response to an ICC request.

If a soldier were on an Australian-controlled base overseas, the legal position could become more complicated. It would depend on the status-of-forces agreement governing the deployment, the sovereignty of the host country, control of the base, custody arrangements and the terms under which Australian personnel were present.

A host country could not necessarily walk into an Australian facility and remove a servicemember without engaging those arrangements. Equally, an Australian base overseas is not automatically sovereign Australian territory immune from the laws of the country in which it is situated.

The ICC would still depend on cooperation from the relevant governments.

What happens if the soldier returns to Australia?

Australia has legislation permitting cooperation with the ICC, including procedures relating to arrest and surrender.

An ICC request would not mean the person was automatically placed on an aircraft to The Hague.

Australian legal procedures would have to be followed. The request would be considered under the International Criminal Court Act 2002, and Australian courts and the Attorney-General would have defined roles in the process.

However, Australia is not in the same position as the United States. As a party to the Rome Statute, Australia has accepted a general obligation to cooperate fully with ICC investigations and prosecutions.

Would the soldier be presumed guilty?

No.

An arrest warrant is not a conviction.

The prosecution would still have to establish the charges through the Court’s procedures, and the accused would be entitled to legal representation, to challenge the evidence and to present a defence.

Military operations frequently involve incomplete intelligence, disputed facts, confused chains of command and decisions made under extreme pressure.

The difference between a tragic battlefield outcome and a prosecutable war crime may depend on intention, proportionality, military necessity, target identification, knowledge and the circumstances confronting the person at the time.

Those matters must be established through evidence rather than political assertion.

Does rank provide protection?

Not necessarily.

The Rome Statute is based on the principle that official position does not automatically protect a person from prosecution.

A case could involve the person who allegedly committed an act, the commander who allegedly ordered it or a senior commander accused of failing to prevent or punish crimes committed by subordinates.

That does not mean commanders are automatically responsible for everything that occurs under their authority. Specific legal tests concerning knowledge, control and reasonable preventative action must be satisfied.

Why does the issue matter to Australia?

Australia regularly deploys military personnel overseas, often as part of coalitions that include the United States.

That creates an unusual legal contrast.

Australian and American soldiers could participate in the same operation, in the same location and under closely connected command arrangements, yet their home countries take fundamentally different positions on ICC jurisdiction.

Australia has accepted the Court’s authority and cooperation framework.

The United States has rejected that authority and is now actively seeking to restrict the Court’s ability to act against Americans.

For Australian personnel, the distinction is not merely academic. It affects the legal framework surrounding overseas service, investigations, international travel and the responsibilities of the Australian government.

Can the ICC lock up an ordinary Australian?

Not for an ordinary criminal offence.

The ICC cannot prosecute an Australian for tax evasion, assault, political speech, fraud or an offence that belongs in Australia’s ordinary courts.

Its reach is confined to the most serious international crimes, and even then a number of jurisdictional and admissibility tests must first be met.

An Australian could ultimately be imprisoned following an ICC trial and conviction. However, the person would first have to be accused of conduct falling within the Court’s limited jurisdiction, be subject to a valid case, be arrested by a cooperating country, be surrendered to the Court and receive a trial.

That is very different from the ICC simply deciding to “grab” someone without legal process.

The Times view

The International Criminal Court was established to ensure that genocide, crimes against humanity and war crimes do not go unpunished merely because a government protects the alleged offender.

That is a serious and defensible objective.

However, Rubio’s criticism raises a legitimate question about the boundary between international accountability and national sovereignty.

Australians should understand that their country made a deliberate decision to accept the Court’s jurisdiction and to assist with its arrest warrants. That decision can extend to Australian military personnel serving overseas.

An Australian soldier could, in principle, be arrested before returning home—but not merely because an accusation appeared in the media or was made by a foreign government.

There would need to be jurisdiction, an investigation, judicial approval of a warrant and cooperation from the country carrying out the arrest.

The greater protection for Australian personnel is therefore not political immunity. It is a credible Australian system that investigates serious allegations promptly, fairly and independently.

If Australia genuinely administers justice itself, the ICC is supposed to remain in the background.