The Legitimacy Trap: Balancing Enforcement and International Cooperation within the International Criminal Court
Foreign Office Minister Henry Bellingham speaking at a conference on the 10th Anniversary of the International Criminal Court. Source: Foreign, Commonwealth, and Development Office
By Ismail Belfencha and Manal Hamdani
Since its establishment in 2002, the International Criminal Court (ICC) has served as the principal institution addressing the gravest crimes under international law. Tasked with bringing justice to the perpetrators of war crimes, crimes against humanity, genocide, and crimes of aggression, the ICC plays a crucial role in the global judicial system. The ICC was one of the main bodies to react to the war crimes committed in the Democratic Republic of Congo, Uganda, and the Central African Republic during the Second Congo War. Additionally, as a reaction to the unrest and the civil war that took place in Sudan under President Omar al Bashir, the ICC released an arrest warrant for the president in 2009. However, much like its predecessor the International Court of Justice (ICJ), the ICC has not been immune to criticism. Many view it as a tool of the United Nations Security Council (UNSC), used to further the interests of its most powerful members while overlooking less favorable actions. These criticisms include the heavy influence that the UN Security Council has over the ICC, the ICC's fixation on African countries, and the clash of the norms of the ICC with those of African countries. [1] This criticism came despite the fact that in the very first pages of the Rome Statute of 1998, it is stated that this statute is determined “to establish an independent permanent International Criminal Court in relationship with the United Nations system.” [2]
The ICC's jurisdiction was established by the Rome Statute of 1998, which outlined its authority over four major types of crimes: war crimes, crimes against humanity, crimes of aggression, and genocide. [3] The need for such a court was primarily driven by the horrific atrocities committed during World War II, as well as the genocides in Rwanda in 1994 and Bosnia-Herzegovina in the early 1990s. [4] In response to these events, the international community created two ad hoc tribunals: the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). [5]
Nonetheless, it soon became clear that temporary tribunals were insufficient to address the scale and complexity of these crimes. The global community recognized the need for a permanent judicial body capable of addressing and punishing these types of crimes, leading to the Rome Statute and the eventual creation of the ICC in 1998 and the beginning of its operation in 2002. [6] Furthermore, under Article 12 of the Rome Statute, the ICC has jurisdiction in two key situations: when a crime is committed by a national of a member state or a state that has accepted the ICC's jurisdiction, or when the crime takes place on the territory of such a state. According to Article 13, cases can be brought before the court through referral by a member state, the UN Security Council, or by a prosecutor of the ICC acting on their own initiative. [7]
This perception has raised doubts about the ICC's impartiality and effectiveness, largely due to its failure to investigate alleged war crimes in Iraq in 2003 and the ongoing status of investigations in Afghanistan (2001). In the case of Iraq, the ICC argued that the country was not a party to the Rome Statute—something that was ignored in the case of Sudan—and further stated that although there is evidence of war crimes committed by British nationals involved in the conflict, the Office of the Prosecutor believes that the authorities of the United Kingdom properly addressed the issue, closing the case without calling for the arrest of any national of the UK. [8] Similarly, in Afghanistan, the ICC's investigation focused exclusively on crimes committed by the Taliban, while ignoring alleged crimes involving U.S. personnel in both cases. [9] This selective focus, along with the closure of investigations targeting UK nationals, has raised questions about the ICC's perceived bias and its failure to address broader concerns regarding U.S. military actions, such as the Abu Ghraib prison scandal. The lack of accountability for incidents that include influential countries, despite their widespread international attention, has contributed to a perception that the ICC's work is not as impartial or comprehensive as it should be. Nevertheless, recent developments suggest that we may be witnessing a shift in the dynamics of international justice. The issuance of an arrest warrant for Russian President Vladimir Putin on March 17, 2023 and the application for a similar warrant for Israeli Prime Minister Benjamin Netanyahu, submitted by ICC Prosecutor Karim Asad Ahmad Khan, mark potential turning points for the court. [10]
These actions are particularly significant because they signal a challenge to the long-standing criticism that the ICC is hesitant to pursue nationals from powerful countries or their allies. The arrest warrants for both Putin and Netanyahu are groundbreaking. For the first time in history, the head of state of one of the five permanent members of the UNSC—specifically President Putin—was the subject of an ICC arrest warrant. Furthermore, this was the first time that Israel, a country long criticized for its treatment of Palestinians, has been directly named in ICC court documents, something that has never taken place due to the veto power of the U.S. and some alleged spying from the Israeli government on the court. [11] Although other leaders and ministers from Russia, Israel, and Palestine were also mentioned in ICC statements, this paper focuses on the cases of Putin and Netanyahu due to the unprecedented nature of these actions. This paper argues that despite the recent initiatives by the ICC, the court must sustain its momentum and carry out thorough investigations in these two cases to uphold its credibility on the international stage. The absence of an official arrest warrant for Israel’s Prime Minister, combined with the ineffectiveness of President Putin’s arrest warrant in halting the war in Ukraine, highlights the ongoing challenges to the ICC's legitimacy and influence. Further development in these cases might be linked to the ICC's ability to create a balance between its reliance on international cooperation and its duty as an independent international judicial body.
Unprecedented actions:
This shift in the ICC's approach raises two possible interpretations. On one hand, it could be viewed as a rebuttal to years of criticism, demonstrating that the court is indeed capable of holding powerful individuals accountable—even those from countries that wield significant influence on the global stage. [12] In contrast to the belief held by many that the ICC would never act against nationals from the five permanent members of the UNSC or their close allies, these arrest warrants suggest that the court is willing to challenge this perception. [13] On the other hand, these actions may reinforce the argument posed by critics. While the warrant for Putin's arrest made international headlines, it has so far had little tangible impact on the war in Ukraine.
The only significant consequence of the warrant was Putin’s inability to attend the BRICS summit in South Africa in 2023, as the country, an ICC member state, was legally obligated to arrest him had he entered its territory. [14] Thus, the impact of the ICC in this case could be regarded as only managing who gets in and out of the African continent. On the other hand, the application submitted by Prosecutor Khan for Netanyahu has yet to result in an actual arrest warrant. Even if such a warrant is issued, it may prove as ineffective as the one for Putin in influencing the Israeli-Palestinian conflict. This puts the court in a dire situation as unlike the case of Iraq and Sudan, here we have cases of alleged war crimes committed within states that are part of the jurisdictions of the ICC. How these cases are approached will have monumental consequences on the legitimacy of the court. In this context, the use of the concept of legitimacy refers to the justification and acceptance of the court’s role and authority internationally. [15]
While the ICC has made progress in bringing some perpetrators to justice, it has faced substantial criticism, particularly for what has been described as its "obsession" with Africa and its refusal to pursue investigations into crimes committed by nationals of European or American countries. [16]
This criticism was fuelled by several high-profile cases, most notably the issuance of an arrest warrant for Sudanese President Omar Al-Bashir and the ongoing, unresolved investigation into alleged crimes committed by British and American soldiers in Afghanistan. [17] The ICC pursued an investigation and issued an arrest warrant for Al-Bashir, a president of a non-member state, while simultaneously refusing to launch a formal investigation into the crimes allegedly committed by soldiers from member states in Afghanistan. [18] This double standard reinforced the perception that the ICC was acting as a neocolonial tool, safeguarding the interests of powerful nations, particularly the five permanent members of the UNSC. The ICC's disproportionate focus on African nations, alongside its reluctance to challenge the actions of Western powers, led to accusations that the ICC was merely a puppet of the global elite. However, the dynamics of international justice have begun to shift, particularly over the past two years, as the global community has increasingly focused on the wars in Ukraine and Palestine.
The ICC in Palestine and Ukraine:
Both Palestine and Ukraine share notable similarities in their relationship with the ICC, particularly in terms of jurisdiction and alleged war crimes. Neither country was an ICC member state at the time of the court's establishment, yet both have since taken steps to accept its jurisdiction. In 2015, the Palestinian government submitted a declaration under Article 12(3) of the Rome Statute, accepting the ICCs jurisdiction over alleged crimes committed in the occupied Palestinian territories, including East Jerusalem and Gaza, dating back to June 2014. [19] Similarly, Ukraine accepted the ICCs jurisdiction in 2015 following Russia’s annexation of Crimea and the outbreak of conflict in Eastern Ukraine. [20] Despite these moves, the court’s investigations into alleged war crimes in both countries were not immediately triggered, raising concerns about the ICCs approach to politically sensitive conflicts.
In the case of Palestine, it was not until 2021—six years after Palestine accepted the ICCs jurisdiction—that a formal investigation was launched. The investigation, which followed years of preliminary examinations and legal deliberations, focuses on alleged war crimes committed by both Israeli and Palestinian actors during the 2014 Gaza conflict. These include airstrikes, the use of human shields, and indiscriminate attacks on civilian areas. The delay in launching the investigation can be attributed to a combination of complex legal issues surrounding the contested territories and geopolitical considerations. The situation remains highly contested, with both sides accusing each other of violations of international law. [21] The ICCs involvement continues as it investigates more recent hostilities, including the 2023 escalation in violence.
Ukraine’s case followed a similarly complex trajectory. After accepting the ICCs jurisdiction in 2014, the Ukrainian government did not immediately trigger an investigation. Instead, a lengthy preliminary examination was conducted to determine whether war crimes had been committed by Russian-backed separatists or Ukrainian forces. Allegations included unlawful killings, torture, and indiscriminate attacks on civilians. However, it was not until Russia’s full-scale invasion of Ukraine in 2022 that the ICC officially announced an investigation. This investigation has focused on war crimes such as the deliberate targeting of civilians, mass executions, and other violations of international humanitarian law. Eventually, a warrant for arrest for both President Putin and Ms Maria Alekseyevna Lvova-Belova, Presidential Commissioner for Children's Rights, was issued for the crimes of “deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation.” [22] Like the case of Palestine, the situation in Ukraine remains fluid, with the ICC continuing to investigate the evolving conflict.
The cases of Palestine and Ukraine highlight the challenges the ICC faces in navigating politically sensitive conflicts. While the ICC's recent actions—particularly the issuance of arrest warrants for leaders of powerful nations like Russia—suggest a potential shift in its approach, questions remain about the ICC's ability to enforce its rulings and hold all perpetrators accountable, regardless of their nationality or political affiliation. Moreover, the ongoing investigations in both Palestine and Ukraine illustrate the complexities of pursuing justice in conflicts that involve contested territories and deep-seated geopolitical rivalries.
In spite of the similarities between the Ukraine and Palestine cases, the main difference lies in the international community's reaction to the two statements made by the ICC. The case of alleged war crimes committed by Russia in Ukraine was referred to the ICC by 46 countries.[23] This includes countries like Germany, the Republic of Italy, and the UK, three of the largest weapons exporters to Israel. [24] Additionally, after the release of the warrant for arrest for President Putin, the decision was championed by the Biden administration to the extent that the president made an order to share the data needed for the investigation started by the ICC with regard to the war crimes committed by Russia in Ukraine. [25] This was similar to the position the United States found itself in with regard to the cases of Libya and Sudan, where the US was reluctantly cooperating with the court. [26]
Nonetheless, this cooperation with the ICC was regarded by many as a hopeful start for significant cooperation between the court and the U.S. as these two actors did not share a good history. First, three months after the US withdrew its signature from the Rome Statute, the United States enacted, under President Bush the American Service-Members' Protection Act which entails that the United States could use the military to retrieve American nationals being prosecuted by the ICC and prohibited any federal, state, and local governments from assisting any investigation done by the ICC. Secondly, ICC prosecutors were heavily sanctioned and got their assets frozen during the Trump administration after the court initiated an investigation with regard to the alleged crimes committed by American and British personnel. [27] Thus, this change of approach was regarded as unprecedented.
This change was short-lived as the whole attitude of the Biden administration towards the ICC changed after the release of the statement that Prosecutor Karim Khan made and the judges' application to pursue an arrest warrant for President Netanyahu. This application resulted in a wave of threats from American senators addressed to the prosecutor, aimed at pressuring him to refrain from pursuing that case. These threats included sentences like “Target Israel and we will target you,” and “sanction your employees and associates, and bar you and your families from the United States.” [28] Thus, from the perspective of U.S. officials, the ICC moved from being an agent that aims at punishing impunity to an enemy that does not have jurisdiction over Israel. Furthermore, the same countries that welcomed the arrest warrant for President Putin, e.g. the UK and the U.S., questioned the validity and the need for ICC investigations in Palestine. This dynamic creates a tension between the ICC's stated mission to end impunity and its dependence on international cooperation. While the court’s mandate is to ensure justice for all, its reliance on the cooperation of sovereign states can limit its capacity to act independently and without political interference. Because the court lacks independent enforcement mechanisms, it is often constrained by the political goals of the most powerful countries. This leaves the ICC vulnerable to being influenced or even obstructed by those nations whose political objectives may conflict with the court's pursuit of justice.
Conclusion:
To conclude, the ICC's recent actions represent a step toward addressing long-standing criticisms, but the court still faces significant challenges in demonstrating its impartiality and effectiveness. The cases of Palestine and Ukraine offer valuable insights into this ongoing debate, highlighting both the potential and the limitations of the ICC in addressing war crimes and other grave violations of international law. The latest development signals a huge step towards fighting impunity and international judicial equality as they are setting a precedent for actions that have never taken place internationally. Nonetheless, it remains to be seen whether the court will actually go through with its investigations. This has to do primarily with the double standard the Western countries have been practicing. The divergent international responses to these cases also reflect the persistent double standards in global justice. The enthusiastic support for the ICC's actions against Russia contrasted with the threats and sanctions following its pursuit of Israeli and American accountability, underscores the geopolitical obstacles the ICC continues to face.
The road ahead for the ICC will require it to navigate these power dynamics with greater resilience if it is to maintain its credibility and continue fulfilling its mission. To effectively combat impunity and build a genuinely equitable system of global justice, the ICC must maintain sustained momentum, conduct thorough investigations, and enforce international law consistently, irrespective of political allegiances or national influence. A significant barrier to the ICC's ability to uphold these standards has been its dependence on the cooperation of member states—and, in some cases, non-member states. Until the court can reduce its reliance on this cooperation and ensure equal treatment in all cases, its credibility and long-term impact on the global judicial system will remain uncertain. The ICC will need to move beyond rhetoric and demonstrate, through tangible actions, its ability to hold all perpetrators accountable under uniform standards.
About the authors
Ismail Belfencha is a graduate student from Al Akhawayn University in the field of International Studies and Diplomacy. His academic focus is on international relations, with particular interest in political economy, neocolonial theory, and international law. He explores how global power dynamics and historical legacies shape contemporary international interactions.
Manal Hamdani is a graduate student from Al Akhawayn University in the field of International Studies and Diplomacy. She is a research fellow at Al Akhawayn University in Morocco, and her academic interest centers around feminist theory, global politics, and Korean Studies, exploring the connections between gender, power, and culture. She is passionate about promoting inclusive and global perspectives through her work.
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Disclaimer
The views expressed in this paper are solely those of the author and do not reflect the opinions of the editors or the journal.