By Alison Cedarbaum, Arjun Moogimane, and Henry Sadlowski

Since its inception, the International Criminal Court (ICC) has existed as a global champion of human rights, an object of anti-colonial scorn, and a metaphor for the challenges and potential of international institutions. Researching the Court generates a series of important questions: What necessitated the Court’s creation? What is its function within the wider scope of international affairs? Can it be effective? Is it necessary? The answers to these questions hold significance for the future of international legal oversight, and the fate of international governance itself.

Early History and Formation of the Court

The desire for a formalized structure by which to hold perpetrators of genocide and war crimes accountable has existed in some fashion since the end of the First World War. However, it was only after the establishment of post-war tribunals in Germany and Japan in the Second World War’s aftermath that the nascent United Nations decided to act. In 1948, the General Assembly adopted the Convention for the Prevention and Punishment of the Crime of Genocide, which invited member states to consider the manner by which a more permanent tribunal might be established. While some formal discussions would occur in the following years, the political conditions of the Cold War were such that little progress was made until the end of the 20th century.

As the Cold War waned and the UN took on a more significant role in global politics, discussions regarding the establishment of an internationally recognized court resumed. Ad hoc tribunals established in the aftermath of genocides in Rwanda and Bosnia underscored the need for a permanent international judicial body, and in 1994, a final draft statute for an international court was presented to the UN General Assembly. A date was subsequently scheduled in 1998 for a vote on the statute’s adoption in Rome. The “Rome Conference” was held from June 15 to July 17, with more than 160 Governments in attendance. 120 parties would vote in favor of the Rome Statue’s adoption and 21 abstained. Only 7 participating governments voted against the treaty, including the US, Israel, China, Iraq, Libya and Qatar. The ICC was formally established on July 1, 2002, and issued its first series of warrants in 2005.

The Rome Statute grants the ICC jurisdiction over four principal crimes as of 2024: genocide, crimes against humanity, war crimes, and crimes of aggression. The ICC is known as a ‘court of last resort,’ and is only allowed to exercise its jurisdiction when countries fail to investigate or prosecute the aforementioned crimes, as is their responsibility under international law. Unsurprisingly, certain countries, such as the US, view this authority as a violation of their sovereignty and have rejected the treaty.

The ICC is overseen by the Assembly of States Parties, a legislative body to which each signatory nominates a representative, and is composed of four organs. The first organ, the Presidency, is responsible for the administration of the court. It is composed of three judges elected by their peers for a maximum of two three-year terms. The second organ, the Judicial Division, consists of the court’s 18 judges, spread across three chambers: Pre-Trial, Trial, and Appeals. ICC judges are elected by the Assembly of States Parties for 9 year terms, and must represent 19 distinct nationalities. The third organ, the Office of the Prosecutor, is responsible for conducting investigations and prosecutions. The Prosecutor may open an investigation under three circumstances: when a case is referred by a state party; when a case is referred by the UN Security Council, or when the Pre-Trial Chamber determines that it has received sufficient evidence from other sources to initiate an investigation. The fourth and final organ is the Registry, which is responsible for all non-judicial aspects of the court’s administration.

Monumental Past Cases

Since 2002, the ICC has presided over thirty-one cases. Of those, only six have resulted in some form of punishment—either monetary reparations or imprisonment. The others are either still pretrial (8), ongoing (5), or had their charges dropped (12).

Despite its low conviction rate, the ICC has slowly expanded its purview over the last two decades. In 2012, ten years after its establishment, it rendered its first conviction on Thomas Lubanga Dyilo of the Democratic Republic of the Congo for the war crime of enlisting and exploiting child soldiers. He was sentenced to fourteen years and had to pay reparations to victims, mostly in the form of monetary payouts. In a typical timeline for the ICC, it was not until eight years after the referral that the verdict was passed down. Still, this was a landmark decision, as it was the first time an individual was tried by a non- national, non-tribunal, permanent entity for war crimes. This was essentially a proof of concept for the ICC: the first time it fulfilled the task it was created to do.

In 2009, the sitting Sudanese President Omar al-Bashir was indicted, marking the first time the court targeted a sitting head of state. Given Sudan’s status as a non-signatory, he was not remanded to ICC custody, but the precedent he set is crucial. The ICC continued to build on its authority in 2016, when former President Simone Ggabo of the Ivory Coast made history as the ICC’s first trial of a former head of state, though he was eventually acquitted.

Notably, a vast majority of the ICC’s cases have concerned the conduct of African leaders. This imbalance has led a number of the continent’s governments to accuse the court of bias over the course of its existence. There are, however, several reasons why the court might reasonably focus its efforts on Africa: of the court’s 124 signatories 34 are from the African continent. This means the court has a greater degree of jurisdiction to prosecute crimes there as opposed to other parts of the world, where there may be fewer signatories. Furthermore, despite complaints from the African Union and the governments of African nations, the court itself has managed to keep a strongly positive perception among populations in African countries.

Regardless of region however, the trend seems to be that over its two decades, the ICC has been attempting to expand its purview and insert itself in areas of global conflict to make its presence known.

Current and Ongoing Cases

Today, the ICC is handling a number of high-profile cases regarding human rights violations. Most pertinent is the ICC’s response to conflict over the past year in Israel and Palestine. Although Israel is not a member state of the ICC, the Court’s jurisdiction over Palestinian territory gives it the authority to prosecute actors involved in events occurring in the Gaza Strip. Chief Prosecutor Karim Khan of the ICC visited the region and expressed concerns regarding human rights abuses on behalf of Hamas, other terror organizations, and Israeli settlers, claiming: “All actors must comply with international humanitarian law. If you do not do so, do not complain when my Office is required to act.” On May 20th, 2024, Khan sought arrest warrants for leaders of Israel and Hamas, to whom he attributed criminal responsibility for a number of atrocities during the current conflict and in years prior. The ICC subsequently issued such warrants on November 21st, 2024, with mixed international responses continuing to emerge.

Another recent case pursued by the ICC concerns the actions of Russian leaders with respect to the Russia-Ukraine War. While the ICC also does not have territorial jurisdiction over Russia, Ukraine’s accession to the Rome Statute gives the Court jurisdiction over crimes committed on Ukrainian soil. Thus, the ICC was able to charge and officially issue arrest warrants for President Valdimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova for war crimes on March 17, 2023. As such, any country that is party to the Rome Statute is obligated to detain either of these figures if they enter that country’s territory. The impact of these arrest warrants, however, is debatable. Ukrainian President Volodymyr Zelensky has attested that Putin’s diplomatic capacity is limited as a result of restrictions on his international travel, and the Russian leader’s decision to cancel a pre-planned trip to South Africa appears to indicate the truth of that assessment. However, Mongolia, a member state of the ICC, did not detain Putin upon his arrival there in September of 2024.

Furthermore, the ICC is actively pursuing several other lower-profile cases. For one, the Court’s attempt to investigate human rights abuses in Venezuela under the Maduro regime was put on hold by Venezuela’s request to take over the case. On March 1, 2024, however, the ICC reclaimed jurisdiction of the case, citing the Venezuelan government’s failure to take sufficient investigative steps. The ICC is also focusing its current efforts in the Democratic Republic of the Congo regarding atrocities in North Kivu, Sudan regarding potential crimes in Darfur, and Belarus regarding alleged crimes committed under the rule of authoritarian leader Alexander Lukashenko. Evidently, the Court has continued its active responses to various potential Rome Statute crimes around the world. Its recent actions, while expanding their geographic diversity and navigating barriers of jurisdiction, still leave numerous questions concerning the viability of the Court unresolved.

The Future of the Court

In the midst of a tumultuous geopolitical landscape where threats to human rights are increasingly prevalent, it is vital to consider the efficacy and viability of the Court’s influence in the years to come. Of course, there exists the perennial problem of any international institution: the lack of an enforcement mechanism. By the very nature of the Court, its members must choose whether or not they are willing to be held accountable. Even if they do opt into the jurisdiction of the Court by joining the Rome Statute and cooperating in an investigation, the Court is reliant on the enforcement mechanisms of member states to act on its rulings. As evidenced by Putin’s travels to Mongolia, this method of execution of justice is not entirely reliable. In the case of former Philippine President Rodrigo Duterte, the leader simply removed the country from the court’s jurisdiction in response to an investigation into his anti-drug crackdowns. Duterte has since sought office again. The response of the Court to this restriction on its impact presents a pattern that has faced criticism in recent years: its convictions are concentrated heavily among African leaders in countries that hold less diplomatic sway, which allows them to evade accountability from international institutions. This approach presents an unjust way in which international law is applied globally, hinting at the influence of traditional heavyweights in international affairs even in a purportedly independent Court system.

Admittedly, the ICC has recently shifted gears away from solely focusing on countries in the developing world. However, the focus of the Court on states and actors with greater geopolitical clout has come with its own set of troubles. As the UN desperately seeks resolution to an international “deficit of trust” in international institutions, the rulings of the Court have become increasingly politicized and undermined by relevant powers. In the case of the Prosecutor’s attempts to issue arrest warrants for leaders of Israel and Hamas, leaders on both sides of the issue have aggressively rejected and condemned the Court, considering its decisions biased and “absurd.” Meanwhile, allegations of sexual misconduct against Prosecutor Khan have further undermined the perceived legitimacy of his work in the region. For a judicial system whose power rests on objectivity and truth, these claims and allegations are particularly detrimental to the legitimacy of the Court’s actions.

Ultimately, the lack of reliable or legitimate systems of justice in many regions during or following periods of conflict provides a basis for the ICC’s existence. Despite challenges by great powers, the court will likely continue to play a critical role in holding perpetrators accountable in countries that welcome its objectivity and resources. Unfortunately, as is frequently the case for internationally recognized institutions, the court is limited by resistance from influential states like the US and China, and will face opposition when acting against the interests of those in power across the world. Despite this reality, the court has proven its worth as a forum for the documentation of international injustice and as an effective court of last resort in post-conflict zones. The court’s recent failures to act on its convictions must not completely overshadow its successes, nor can they erase the motivations of the Rome Statute, produced by a century’s worth of evidence in favor of an international judicial body. While grand expectations for the tangible impact of the court’s decisions may need to be tempered, the ICC will continue to provide an important, if not paramount, role in the international community’s ever-evolving regulatory architecture where it is welcome to do so.

This piece is a reproduction from its original issue in Hemispheres Volume 48 Issue 1. Read more here.