Does the International Criminal Court still matter?

The birth of the ICC

The ICC is the only permanent international court with the jurisdiction to prosecute individuals for international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. Unlike the UN's International Court of Justice, which deals with disputes between states, the ICC specifically focuses on individuals deemed responsible for crimes in conflict zones.

Though it was not created until 2002, its origins came from the two world wars, when leading figures called the defeated powers to face accountability for their war crimes. This led to the creation of temporary courts to prosecute surviving German and Japanese leaders after the Second World War in Nuremberg and Tokyo respectively.

While the post-Second World War trials set a precedent for prosecuting individuals, the outbreak of the Cold War soon afterwards obstructed those that hoped to create a permanent court.

As the conflict between the US and USSR wound down, however, the idea resurfaced. The UN General Assembly voted in 1989 to begin proceedings. The outbreak of two new conflicts in Rwanda and the former Yugoslavia prompted the UN to create two further temporary tribunals and further underlined the urgency for a permanent court.

In 1998 the UN General Assembly held a conference in Rome adopting the Rome Statute of the International Criminal Court by a vote of 120 to 7, with 21 states abstaining. Four years later, the ICC came into being.

However, the ICC attracted opposition from the beginning.

The seven states that voted against ratifying the Rome statute were not peripheral outliers. They were the major Middle Eastern actors of Iraq, Israel, Libya, Qatar and Yemen, as well as China and the US.

Many more states opted either not to sign up to the ICC once it came into being or to sign up to the Rome Statute, but then not ratify it.

As a result, according to the ICC, there are currently 123 states that fall under the jurisdiction of the ICC. This includes 33 African states, 19 Asia-Pacific states, 28 Latin American and Caribbean states, 18 Eastern European states and 25 Western European states. However, much of the Middle East and East Asia have never been within the court's jurisdiction.

Moreover, some states initially joined but then left.

The US, under Bill Clinton, eventually signed the Rome Statute but never ratified it. Russia signed up in 2000 but withdrew in 2016 following an ICC investigation into its activities in Ukraine. The Philippines withdrew in 2019 following an ICC investigation into President Rodrigo Duerte's war on drugs campaign while other states, like The Gambia, have also pulled out.

As a result, despite its universal aspirations, large parts of the world are not covered by the court's jurisdiction, including arguably the three largest powers: the US, China, and Russia. Prosecutors in the Hague have tried to get around this by prosecuting individuals from non-member states because of alleged crimes committed in member state territory.

This is how Putin's 2023 indictment came about, for the crimes he is accused of committing in Ukraine, which accepts the jurisdiction of the court.

A Western tool?

Since its founding, the ICC has hosted 31 cases. Forty warrants have been issued, 21 of which have resulted in arrests. Ten have been convicted and four acquitted at trial. While the process is slow and thorough, the ICC's supporters insist this is a valuable means to punish war crimes and deter future leaders from doing the same.

As the ICC itself insists, "the countries that have joined the Rome Statute system have taken a stand against those who, in the past, would have had no one to answer to after committing widespread, systematic international crimes."

But one criticism is that the court has proven largely ineffective as a deterrent. Three state leaders have been indicted by the ICC, and none have been successfully prosecuted yet.

Libya's Muammar Gaddafi was issued a warrant in June 2011 following his violent crackdown in the first Libyan civil war, but he was killed a few months later before the arrest could be actioned.

Omar al-Bashir of Sudan was issued warrants in 2009 and 2010 for his role in the alleged genocide in Darfur. Yet this seemed to have little impact on his behaviour nor his movements and he travelled relatively freely to neighbouring states that either had not signed up to the ICC or had but didn't arrest him.

Neither did the indictment deter fellow autocrats from similar activities. During the Arab Spring and the wars that followed elites and leaders on both sides of the wars in Syria, Libya and Yemen were accused of war crimes.

Not being members of the ICC, however, no arrests have yet been issued and none appeared cowed by the court. Likewise, Putin seems to have given the court little thought when he decided to invade Ukraine in 2022.

A further criticism has been that the court has been too Eurocentric in its prosecutions. Of the 52 individuals indicted in the ICC's history, 47 have been African, while the remaining five have been Russian (one of which is South Ossetian).

This has prompted several African leaders to argue the ICC is biased against Africa, and some have even claimed the court is a tool of neo-imperialism that allows former colonial powers to interfere in the affairs of weaker states.

Former South African president Jakob Zuma was especially vocal, indicating he would withdraw Pretoria from the ICC, only to be overruled by South Africa's high court. Zuma also raised the prospect of collective African withdrawal at the African Union in 2015, but the prospect received too little support.

Even so, the charge of anti-African bias remains potent. This might explain the ICC's eagerness to pursue prosecutions of alleged Russian crimes since 2022, after which all five Russian indictments were issued.   

Related to this are challenges over why crimes allegedly committed by Western leaders have not been explored. After the abuses revealed by US troops against Iraqi prisoners in Abu Gharib in 2004, many asked why the US was not being investigated.

However, with neither Iraq nor the US a party to the ICC, there was no jurisdiction. That was not the case for Britain, which was an ICC member, and investigations against alleged abuses by its soldiers in Iraq were explored between 2005-06 and again between 2014-2020. However, no prosecutions were made.

Similarly, since 2020 an investigation into possible crimes by US forces in Afghanistan from 2003-21 has been underway, though no charges have yet been made.

For supporters of the ICC, the willingness of the court to investigate Western states illustrates its true impartiality and challenges the Euro-centric claims. However, critics argue these are largely token gestures and are unlikely to lead to Tony Blair and George W. Bush being indicted in the same way as Omar al-Bashir or Vladimir Putin.

An America-shaped hole   

A further challenge for the ICC has been the absence of the United States. Without the world's most powerful state, which was a key player at the Nuremberg and Tokyo trials, the ICC's effectiveness has been diminished. Arguably Washington's objections have also emboldened many of its non-Western allies to hold off joining.

America's interaction with the court has oscillated between supportive interest to outright hostility. Bill Clinton signed the Rome statute in December 2000 after his successor, George W. Bush, had already been elected. However, he did not send it to be ratified by the Senate, believing there were still some, "fundamental concerns," that needed addressing.

George W. Bush proved incredibly hostile to the court, in contrast, and informed the UN in 2002 that the US did not intend to become a state party. Congress subsequently passed the American Servicemembers Protection Act (ASPA), which blocked US funding to the ICC and allowed the presidency to seek the release of any US personnel detained in the name of the ICC by, "all means necessary."

The Bush administration also sought Bilateral Immunity Agreements with its allies, which prevented American citizens from being arrested by the ICC in over 100 countries.  

The Barack Obama era saw a switch back to Clinton's more positive approach, though the Rome statute remained unratified. Obama was supportive of some ICC indictments, such as Gaddafi and al-Bashir.

In contrast, Donald Trump was highly critical, threatening to revoke the visas of ICC prosecutors investigating Americans. The ICC's decision to explore potential American war crimes in Afghanistan in 2020 provoked a considerable reaction including Trump's Executive Order 13928 that threatened sanctions on ICC employees.

This order was revoked soon after Joe Biden assumed office and he, like Obama, was more supportive of the court, endorsing the arrest warrant for Putin, for example.

However, like all his predecessors, he has not joined the ICC, leaving a noticeable hole. Even if the ICC can be accused of being a Western tool, without the United States it struggles to be a very effective one.

Better than nothing?

Much of the criticism of the ICC is justified. It hasn't extended its authority far enough to be the global prosecutor of war crimes it hoped to be, contributing to an inability to deter some international war criminals.

Until key states like the US, China and Russia, and key regions like the Middle East and East Asia, are persuaded to join, its authority will be limited. Similarly, it has disproportionately targeted African states and been seemingly too reluctant to look at potential Western war crimes, justifying some charges of Eurocentrism.

However, as seen by Putin's unwillingness to risk coming to South Africa, despite these flaws it does still have some clout and should not be dismissed. The individuals it has prosecuted have been tried fairly and punished for the crimes they committed, which is a step in the right direction.

If anything, the ICC needs to consider how it can expand its jurisdiction and what it needs to do to persuade key players, notably the US and some of its non-western allies, that this is in their interests too.