The Court America Never Joined Backs Off: ICC Drops U.S. Troops From Afghanistan Probe as Rubio Draws a Constitutional Line

The International Criminal Court has backed away from American soldiers. Judges at the Hague-based court have ended the part of its Afghanistan investigation that could have involved U.S. military personnel, leaving the probe focused on crimes by the Taliban, the Associated Press reported Friday in a story published by The Independent ^[4]. Al Jazeera reported that the decision followed a string of feuds between the United States and the court ^[3].

On Friday, Secretary of State Marco Rubio took the stage at the Federalist Society's convention in Washington and delivered a direct challenge to the court and the wider web of international institutions around it, Reuters reported in a story carried by The Hindu ^[1].

What the court did and what critics argue

To be fair to the other side, the court had kept open an investigation whose scope could reach Americans, and only now have its judges closed that part of it ^[4]. The administration's critics go further, accusing it of breaking international law. Reuters noted that Rubio brushed aside that criticism, including over the seizure of Venezuela's former president, Nicolás Maduro, and strikes on boats in the Caribbean and Eastern Pacific ^[1].

Reuters also described Rubio's warning that the court would try to prosecute U.S. officials or service members as an assertion, the same argument he used to justify sanctions on the court announced last month ^[1]. The Washington Times reported that Rubio accused international bodies, including the ICC, of hypocrisy and of using the rule of law as a tool to constrain the United States, even as his State Department keeps up pressure on the court ^[2].

The Constitution answers first

Rubio's central point, as Reuters reported it, is that Americans have never agreed to submit to the court's authority ^[1]. That is not a slogan. It is how the American system decides who may bind the nation.

The Constitution allows the president to make treaties only with the advice and consent of the Senate, "provided two thirds of the Senators present concur" ^[6]. It places the judicial power of the United States in one Supreme Court and in lower courts that Congress creates ^[6]. It also gives Congress, not a foreign tribunal, the power to make rules governing the nation's land and naval forces ^[6].

Put those clauses together and the conclusion follows. Under our Constitution, authority flows from the consent of the governed, expressed through elected officials and the courts they establish. A tribunal that the American people never accepted through that process cannot claim the right to judge their sons and daughters in uniform. Holding American troops accountable is a duty that belongs to American law and American courts.

Rubio put it more bluntly. The United States, he said, will not "submit to the sterile vision of radical judges or soulless global bureaucrats" ^[1]. The Washington Times reported that he tied resistance to such bodies to the country's founding principles ^[2].

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The record also shows that pressure works. As long as that part of the probe stayed open, a cloud hung over U.S. personnel who served in Afghanistan; after repeated feuds with Washington, the court's judges have lifted it ^[3][4]. The investigation that remains is aimed at the Taliban ^[4], which is where the world's attention to Afghan suffering belonged all along.

Who is pushing back and what comes next

Rubio is leading the charge, and the State Department is backing his words with action ^[2]. He went as far as suggesting that if the court ever tried to enforce its rulings against Americans, the United States would answer with force, invoking an ancient Roman general's warning about quoting laws to armed men, according to Reuters ^[1].

The audience was receptive. The Washington Examiner reported that Rubio used the address, the Federalist Society's Barbara K. Olson Memorial Lecture, to put to rest rumors that he was about to resign to run for president, and to rally conservatives after a hard election, telling them, "Great things that last are built in decades, not election cycles" ^[5]. Reuters noted it was his first set of prepared remarks since Republicans were routed in the Nov. 3 midterm elections, which fed talk of a 2028 run ^[1].

What comes next is a test of staying power. The Afghanistan probe continues, now centered on Taliban crimes ^[4]. The sanctions Rubio announced last month give the administration continuing leverage over the court ^[1]. And with Republicans weakened after the midterms ^[1], the question is whether the principle Rubio defended on Friday, that Americans answer to their own Constitution and their own courts, will hold steady through the next Congress and the next administration.

It should. The men and women who wear this nation's uniform serve under the Constitution, and that Constitution, not a court Americans never accepted, is the charter that governs how they are held to account.