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Harris, Trump, and the ICC – what IR scholars think

Which presidential candidate would engage more with the International Criminal Court?

- October 31, 2024
The International Criminal Court (ICC) in The Hague, Netherlands (cc) United Nations photo, via Flickr.

With the Nov. 5 election now just days away, Vice President Kamala Harris and former President Donald Trump are making their closing arguments to the American people for why they should be the next president of the United States. Both Harris and Trump have presented themselves as change makers. But how much change would each bring to U.S. foreign policy vis-à-vis international law and justice?

I analyze data from a new survey of international relations (IR) scholars for insights into this question.

Harris vs. Trump on law and justice 

Harris, a former San Francisco district attorney and California attorney general, has pitched herself as the rule-of-law candidate. She has drawn a contrast between her long record of public service and her opponent’s long record of criminal and civil offenses. Trump, for his part, has promised retribution against his political opponents if he wins the presidency a second time.

On the world stage, Harris has promoted the “rules-based order,” in which countries adhere to international law and norms and participate in multilateral agreements and organizations. Trump had a very different game plan in his first term. He instead pulled the United States out of treaties like the Paris Climate Accord – and undercut international organizations like NATO and the World Health Organization.

Returning to international cooperation was part of Biden and Harris’ 2020 campaign – and a promise they fulfilled in their first days in office and in the years since. But there’s one area where there has been less daylight between the Biden and Trump White Houses: international criminal law and cooperation with the International Criminal Court (ICC).

U.S. policy toward the ICC

The United States is a signatory to the ICC’s Rome Statute, which President Bill Clinton signed more than 20 years ago. But the Senate hasn’t ratified the treaty, meaning the U.S. isn’t a full member. Still, the court can exercise jurisdiction over Americans for suspected crimes on the territory of an ICC member such as Afghanistan.

U.S. administrations have commended and vilified ICC actions at their convenience. Following the opening of an investigation involving Americans in Afghanistan (and another involving Israelis in Palestine), Trump imposed sanctions on ICC personnel in 2020, violating norms against judicial interference.

Biden withdrew Trump’s sanctions in 2021. But in 2024, Biden supported sanctions of a different kind, signing legislation that would limit aid to Gaza and the West Bank if the Palestinian Authority assists the ICC in its investigation into alleged atrocities committed by Israeli and Hamas personnel. Like the United States, Israel isn’t an ICC member but its personnel are subject to the court’s jurisdiction in Palestine, which is a member.

Where does Harris stand on the ICC?

While a U.S. senator in 2020, Harris signed on to a Senate letter to then-Secretary of State Mike Pompeo, challenging the court’s jurisdiction over Israel and requesting the State Department intervene to curtail the court’s activities. In 2021, in her first call as vice president with Israeli Prime Minister Benjamin Netanyahu, Harris reaffirmed Washington’s opposition to ICC investigations of Israelis.

But a year later, she spoke in favor of ICC investigations into the Russia-Ukraine war and, a year after that, said Russian forces have committed not only war crimes but also crimes against humanity.

This apparent hypocrisy in support for international law and justice – promoting the ICC when it serves U.S. and allies’ interests, and opposing the court otherwise – is part of a decades-long U.S. foreign policy strategy. So this pattern isn’t unique to Harris. It’s not even unique to the United States. 

For example, Russian President Vladimir Putin has claimed Ukraine is violating international law, specifically the prohibition on genocide, and has used this as a justification for the current war. All the while, the Kremlin rejects the ICC’s jurisdiction over Russian personnel in Ukraine and likewise challenges the International Court of Justice’s jurisdiction.

Harris’ tone and approach seem to have changed in recent months. Does this suggest we are likely to see a change in international justice policy under a Harris presidency?

A possible change in policy?

Since Israel’s retaliation against Gaza following the Oct. 7, 2023, Hamas terrorist attacks, Harris has reminded Israel that though it has a right to defend itself, it must do so while respecting international humanitarian law and protecting civilians. Phil Gordon, one of Harris’ closest foreign policy advisors, has indicated a possible policy shift, albeit modest, in a Harris administration compared to the current Biden administration – a shift to emphasize respect for international law.

Whether Harris would completely change course as president and support the ICC investigation into Israel-Palestine, while an open question, seems unlikely. A bigger question is how likely it would be for the United States to join the ICC under a Harris presidency, compared to a Trump presidency. 

I pitched this question to IR scholars, in collaboration with the Teaching, Research & International Policy (TRIP) Project at William & Mary.

The TRIP survey sample

Between October 9 and October 18, 2024, TRIP reached out to 5,026 U.S.-based IR scholars, of whom 705 responded to at least one question, resulting in a response rate of roughly 14%. 

Men represented 71% of the sample, women represented 26%, and 3% of survey participants didn’t answer the question about gender. In terms of partisan identification, approximately 64% of participants identified as Democrats, 23% as independents, and 3% as Republicans – 10% said something else or didn’t answer. In terms of age, the two largest cohorts were aged 45 to 54 (30%) and 55 to 64 (30%). Individuals under 45 made up 15% of the sample and individuals 65 years and above made up the remaining 25%.

With this demographic data, we can assess possible relationships between gender, partisanship, and age with scholars’ evaluations of prospects for U.S. engagement with the ICC under Harris versus Trump.

Top-line findings

Under a new Trump administration, 74% of IR scholars think there would be a zero-percent chance that the U.S. would join the ICC. And 94% give it a 5% chance or less; 96% give it a 10% chance or less. Barely 2% of survey respondents believe the odds are better than 50%.

This high degree of consensus, that the U.S. wouldn’t join the ICC during a second Trump presidency, is striking.

Respondents rate the odds more favorably in a Harris administration. One-third (33%) think there’s a zero-percent chance of the U.S. joining the ICC. And 53% give it a 5% chance or less, while 69% give it a 10% chance or less. Still, less than 4% of the scholars surveyed believe the odds are better than 50%.

The upshot is the vast majority of IR scholars don’t expect odds better than a coin flip when it comes to the U.S. joining the ICC under either Trump or Harris.

Demographic differences

Women are more pessimistic than men about ICC membership in a Trump administration, with 78% of women compared to 73% of men saying there was a zero-percent chance. There’s also a 5-point gender difference in expectations of ICC membership under a Harris presidency: 37% of women compared to 32% of men said there was a zero-percent chance.

Democrats (73%) and independents (72%) agree the odds of the U.S. joining the ICC under a Trump presidency are nil. Democrats’ (32%) and independents’ (30%) expectations for a Harris administration are similar to each other. 

Republicans think the odds are slightly better under Harris, with 20% indicating a zero-percent chance, compared to 67% under Trump. Still, Republicans made up such a small percentage of the overall survey sample (24 individuals, representing 3% of respondents) that it’s hard to draw meaningful comparisons along party lines. We can’t conclude that among U.S.-based IR scholars, those who identify as Republicans are relatively more optimistic – though still very pessimistic – about possible U.S. membership in the ICC than are scholars who identify as Democrats and independents.

Between 69% and 77% of all age cohorts think there’s no chance of the U.S. under Trump joining the ICC, compared to between 30% and 41% of age cohorts in the Harris presidency scenario. Skepticism about U.S. ICC membership during either a Trump or Harris administration is highest among respondents under 45 years of age.

Concluding thoughts

International law buffs or legislative politics enthusiasts might wonder why there are any differences in the sample, given that the U.S. is already a Rome Statute signatory. Whether the U.S. becomes a full ICC member through ratification wouldn’t be up to either Harris or Trump but a two-thirds U.S. Senate majority.

But maybe scholars are doing two things at once – making a prediction about what foreign policy moves the two candidates might champion if elected president and guessing what the Senate would look like should either win. In general, Democrats hold more favorable views of ICC membership than do Republicans. A Democratic Senate would be comparatively more likely to back a Democratic president’s interest in joining the ICC than would a Republican Senate.

If respondents have in their minds a Harris win and down-ballot wins for Senate Democrats when assessing possible ICC membership in a Harris presidency (and likewise a Trump win and down-ballot wins for Senate Republicans when evaluating potential ICC membership in a Trump presidency), this could explain, at least in part, differences in predictions under scenarios of the two candidates’ prospective presidencies. 

It’s worth noting that the Democratic-led Senate under Pres. Barack Obama didn’t move to ratify the Rome Statute. In fact, Obama sent a delegation to the ICC’s 2010 review conference to pass a treaty amendment that would further insulate Americans from ICC scrutiny. So it’s far from a given that Harris would seek rapprochement with the court, unless doing so served U.S. interests. The vast majority of IR scholars think both Harris and Trump would uphold the status quo and not join the ICC.

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