The world today is witnessing an alarming increase in atrocity crimes, with conflicts marked by war crimes and crimes against humanity becoming the norm rather than the exception. As the concept of collective security falters, the burden of accountability has become progressively elusive.
Governments employing scorched earth tactics raise critical questions about the international community’s ability to contain violence. Genocidal actions are reported in multiple regions, and the authority of institutions like the International Criminal Court (ICC) to counter these crimes is increasingly called into question. The impending International Criminal Court (ICC) Review in July adds urgency to discussions about the effectiveness of international justice.
Born out of a desire to prevent unimaginable atrocities, the ICC was established through the Rome Statute, which entered into force in 2002. In its preamble, the Statute underscores the intent to shield millions from suffering, represented through violations of human rights witnessed in the 20th century. However, the court’s effectiveness is hampered by the absence of key global players: China, Russia, and the United States have yet to ratify the Statute and have often taken aggressive stances against the ICC and its officials.
The U.S. detachment from the ICC raises longstanding concerns. Following the 9/11 attacks, American military operations in Afghanistan and Iraq were characterized by a blatant disregard for international law, thereby sparking resistance to the ICC’s jurisdiction. While many nations sought to uphold the ICC in the face of U.S. criticism, persistent anti-ICC rhetoric from within the U.S. has nettled its progress.
Two critical dimensions of the challenges facing the ICC emerged: political opposition and legal arguments against its jurisdiction over non-State Parties. This has posed existential threats to the court’s authority as legal theories rooted in “delegation doctrine” began affecting its operations. Such theories assert that the ICC can only prosecute individuals from States that are parties to the Rome Statute, without explicit consent from their States. This has been particularly problematic for defendants wanted by the ICC, such as former Sudanese President Omar Al Bashir, who publicly defied arrest warrants citing his status as a sitting head of State.
The debate intensified with the issuance of ICC arrest warrants against high profile individuals, including Russian President Vladimir Putin. In 2023, Putin was accused of war crimes for the deportation of Ukrainian children, yet questions arose regarding the legality of issuing warrants against nationals of a non-State Party. Similarly complicated scenarios unfold in the context of Israel, where warrants against Israeli officials like Prime Minister Benjamin Netanyahu have faced similar legal objections.
Observations indicate that the difficulty in executing arrest warrants from the ICC may stem from a politicized understanding of immunity. Even as the ICC maintained its legal position that there is no immunity for heads of State, the reality on the ground tells a story of reluctance among nations to uphold these warrants. Mongolia’s decision to permit Putin’s attendance at a conference without arrest exemplifies the challenges to ICC’s beacon of justice. Moreover, the Council of Europe’s stipulation that the newly formed Special Tribunal for the Crime of Aggression against Ukraine respects the so-called “troika” immunity reflects a backward step regarding international accountability.
The absolution afforded to leaders under the aegis of state sovereignty undermines the potential for meaningful accountability. After decades of historical precedents, including the Nuremberg Trials, accountability for heinous crimes remains paramount. The irony lies in the collective calls for justice against Putin after his invasion of Ukraine—a war of aggression that the ICC was ill-equipped to handle due to the restrictions placed upon its jurisdiction in the Kampala Review Conference of 2010.
As nations discuss enhancing the ICC’s capabilities, a collective effort is essential to fortify the court and ensure it does not flounder into irrelevance. The proposed amendments to the Rome Statute covering the crime of aggression must be treated as priority items in the upcoming review to align them with those of genocide, war crimes, and crimes against humanity. Such amendments, championed by civil society and legal experts, could restore a crucial element of international order.
Furthermore, States Parties have a moral obligation to review their commitments to the ICC by actively engaging in its functions. There is a pressing need for robust operational support to enhance the court’s efficacy, alongside addressing internal issues such as the allegations of misconduct against ICC officials. Funding challenges persist, as does the notion of the ICC being perceived solely as a punitive fortress aimed at certain nations, primarily conceived as a means of limiting accountability for democratic governance.
The evolution of the ICC requires a recommitment from nations to collectively confer upon it the authority originally envisaged in the Rome Statute. If States can transcend political disagreements around the court, they might indeed restore its relevance just in time to address an escalating tide of global atrocities. The continued absence of accountability could plunge the world into heightened violence and suffering, establishing a future where the notion of international justice is but a faint echo of hope.
The stakes for international peace and security rest heavily upon the shoulders of member states willing to confront their political will in support of a robust ICC. If left unchecked, the potential of the ICC to curb impunity risks becoming no more than an idle hope, with unending humanitarian tolls marking its failure under the weight of international politics.
image source from：justsecurity
