What to do about a world in which atrocity crimes appear to be occurring with increasing and alarming frequency? Wars are prosecuted using scorched earth tactics that involve the commission of war crimes and crimes against humanity, credible allegations of genocide have been leveled at States in several corners of the globe, and acts and wars of aggression, which will be the subject of discussion at the upcoming International Criminal Court (ICC) Review in July, are on the rise.
The United Nations and other international institutions seem powerless to prevent or contain the violence, and the ICC, which was created in 1998, seems increasingly to be a “Potemkin Tribunal”: the majority of the Court’s arrest warrants have not been implemented (with the notable exception of the former president of the Philippines, Rodrigo Duterte), the Prosecutor is on leave due to serious allegations of sexual misconduct, and the courtrooms show few signs of activity.
How did this happen? Observers cite many reasons. But the ICC might still play a role in walking humanity back from the brink, if States can find the political will to respect and strengthen the work of the Court. ICC States Parties could take three concrete actions to address the current downward spiral: (1) support the arrest of defendants wanted by the ICC and uphold the unanimous ICC Appeals Chamber ruling that there is no immunity for heads of State, (2) amend the Rome Statute to remove the jurisdictional limits imposed upon the crime of aggression during the Kampala Review Conference in 2010, and (3) continue to uphold the values of the Court and the integrity of its activities, while encouraging other States to ratify the Rome Statute to enhance the ICC’s legitimacy and universality.
The Creation and Purpose of the International Criminal Court
The Rome Statute entered into force in 2002, shortly after the 9/11 terrorist attacks on the United States. In the words of the preamble that had been drafted long before, it was established to address “unimaginable atrocities that deeply shock the conscience of humanity” and which had victimized millions of individuals during the 20th Century.
Yet the birth of the Court in 1998 was, as I have written elsewhere, an uneasy revolution in international law and politics. It now boasts 125 States Parties, but three major powers – China, Russia, and the United States – have not joined it, and two of these States (Russia and the United States) have aggressively attacked the ICC and its officials. The worry about U.S. resistance to the ICC has been there since the beginning: As the United States launched its 2001 military campaign against Afghanistan to target Al Qaeda and the Taliban after 9/11, and later its 2003 campaign to invade and occupy Iraq, it spurned the Court, making it clear its view that the rules relating to the commission of genocide, war crimes, and crimes against humanity in the Statute should not apply to Americans (while, ironically, often claiming the benefit of the Geneva Conventions, which are reflected in the Rome Statute, for its own personnel). While many ICC States Parties rallied to the Court in the face of U.S. attacks on it, persistent anti-ICC rhetoric and actions took a heavy toll.
Most external observers focused on the bilateral immunity agreements negotiated between the United States and other countries as well as the American Service Members Protection Act as the greatest threat to the Court at the time, but a more insidious challenge was also present. In an affront to the ICC’s legal foundations, U.S. scholars and diplomats argued that the Rome Statute violated the law of treaties in permitting jurisdiction over Non-State Party nationals. Their arguments coincided with writings by a handful of individuals suggesting that, despite the clear language of Article 27(1) and (2) of the Rome Statute prohibiting official immunity, heads of State remained immune from prosecution before the Court unless their State of nationality had expressly waived the immunities (or, some argued, the United Nations Security Council could do so under certain conditions).
These twin attacks against the Court – one political, the other juridical – played directly into the hands of individuals accused of ICC crimes and targeted with ICC arrest warrants. In particular, former Sudanese President Omar Al Bashir, continued to travel widely even after arrest warrants were issued for him alleging genocide, war crimes, and crimes against humanity, daring even ICC States Parties to arrest him. Al Bashir argued both that he was entitled to immunity as a head of State, and that the warrants represented yet another example of international double standards, with African leaders indicted while Europeans, Americans, and others walked free. As the legal and political debate over Al Bashir’s immunity continued, only human rights organizations and members of civil society seemed troubled by the continuing toll of the atrocities being committed in Sudan, which persist even today, including in the Darfur region where the toll that originally formed the basis of the ICC indictment against Al Bashir had once so captured international attention.
The Delegation Doctrine
As I have written in prior essays, many of the objections to the ICC’s exercise of jurisdiction over non-State Party nationals, whether or not they are heads of State, are based on the so-called “delegation theory” of the ICC’s jurisdiction, a theory that posits that the ICC’s jurisdiction is derivative of its member States, and therefore prevents the Court from exercising jurisdiction over the nationals of non-party States (or piercing their immunity) without the consent of their State of nationality. As I have noted before, some proponents of this theory argue that the ICC may sometimes hear cases over the nationals of non-party States without their consent, whereas others take the position that the ICC may never hear such cases.
The most extreme form of delegation theory (which I have referred to in earlier writings as version 3.0) argues that the ICC’s prescriptive and adjudicative jurisdiction is limited to whatever the State can transfer to it. This was the view taken by the Dutch Advisory Committee on Public International Law, which advises the Netherlands’ government as well as its House of Representatives and Senate on international law issues. This view argues that there is an actual “transfer” or delegation of domestic criminal jurisdiction to the ICC when States ratify the Rome Statute, and thus maintains that the Court’s prescriptive, adjudicative, and enforcement jurisdiction is derived from whatever the State can give. Disappointingly, it is hard not to note the parallel position of the Netherlands in 1920, when it refused to extradite Kaiser Wilhelm to the allies to stand trial pursuant to the Treaty of Versailles.
Collective Conferral as an Alternative
I, and others, have recently challenged the delegation doctrine, arguing that it fails as a matter of international law and policy. Indeed, as I wrote previously, given that the ICC was created to hear cases that national courts cannot or will not hear regarding the commission of international crimes, the delegation doctrine doesn’t make any sense, which is one of the reasons that it was resoundingly rejected during the negotiation of the Rome Statute, over the objections of the United States. Unsurprisingly, it has now been repudiated by former U.S. Ambassador David Scheffer, who first articulated it in 1998. For this reason, as I have written elsewhere, “it seems clear that while the term “delegation” itself poses no particular conceptual problem, the legal baggage attached to it in the context of the ICC is problematic. States do not “delegate” some of their national jurisdiction to the ICC or other courts, they “confer” jurisdiction upon them through their collective action at the international level. This collective conferral allows them to create entities that are, in the words of Leiden University Law Professor Carsten Stahn, ‘more than the sum of their parts,’ or, as U.S. Ambassador for War Crimes Beth Van Schaack has argued, grant what can be described as a form of ‘pooled’ jurisdiction.”
As I have discussed at much greater length, analyzing other international organizations and State practice supports the theory of “collective conferral.” The concept of “conferral” is widely reflected in scholarship on international organizations. It is also the basis upon which the ICC’s predecessor courts and tribunals were established, including the International Military Tribunals at Nuremberg and Tokyo, and the International Criminal Tribunals for the former Yugoslavia and Rwanda. During the frenzy of litigation that followed the U.K. challenge to the Prosecutor’s application for arrest warrants in the Palestine situation, while the U.K., Germany and the Democratic Republic of the Congo appeared to accept the “delegation theory,” most State submissions rejected it explicitly, including Brazil, Chile, Ireland, Mexico, Norway, the Organization of Islamic Cooperation, South Africa, and Palestine (a Member State). Not all States use the term “conferral”; some speak of “accepting” the Court’s jurisdiction or “endowing” the Court with jurisdiction, but it is clear from the submissions as well as the academic literature that the delegation theory is accepted by only a minority of States and scholars (although they are admittedly vociferous in their insistence on its correctness).
What of the Court’s Recent Arrest Warrants?
In 2023, the ICC issued significant arrest warrants against Russian President Vladimir Putin and Commissioner for Children’s Rights Maria Lvova-Belova, alleging that they had committed war crimes involving the unlawful transfer and deportation of Ukrainian children. Some argued that the warrants were not lawful because one of the accused is a sitting head of State, and both are nationals of the Russian Federation – a non-State party to the Rome Statute that has not consented to the ICC’s jurisdiction. Russia has objected to the warrants, and even sanctioned ICC officials.
In 2024, warrants were issued against Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant, and objections surfaced asserting that the ICC could not issue arrest warrants against Israeli officials because that power had been stripped from Palestine by the Oslo Accords and therefore could not be “delegated” or “transferred” to the Court. U.S. President Donald Trump objected to these warrants and has also sanctioned ICC officials, including ICC Prosecutor Karim A.A. Khan and, more recently, four judges of the Court.
Politics or Law?
While some authors have argued that the warrants against Netanyahu – and other heads of States – are inconsistent with international law, citing decisions by a handful of States to refuse to implement them – in fact, the warrants have been supported by every judicial decision issued not only by the ICC but by other international courts and tribunals, as well as the International Court of Justice in the Congo v. Belgium. Moreover, as I have pointed out elsewhere, the objections of States to the exercise of the Court’s jurisdiction seem clearly to be driven more by politics than law. After all, under the Biden administration, while the U.S. vociferously objected to the arrest warrants against Netanyahu and Gallant, it praised the warrants against Putin and Lvova-Belova.
Yet Mongolia, a State Party to the Rome Statute, recently allowed Putin to attend a conference without arrest, thereby undermining the effectiveness and legitimacy of the Rome Statute itself (as Pre-Trial Chamber II found in October 2024), and continuing to shield Putin with de facto immunity for his alleged actions during the course of his unilateral invasion of Ukraine. In a similar vein, the Council of Europe has stated that while the newly created Special Tribunal for the Crime of Aggression against Ukraine (STA) will try senior military and political leaders, it has to respect so-called “troika” immunity of heads of State, foreign ministers, and heads of government, even though it is an international tribunal. In other words, it will be a “Putin tribunal” that cannot actually try Putin until he decides to leave office. It is possible to distinguish the STA from the ICC, but it is hard not to see this as a marked step backwards in the enforcement of international criminal law.
Likewise, to take just one example linked to the current conflict between Israel, supported by the United States, and Iran, Netanyahu, who initiated the recent strikes against Iran, has been indicted for the commission of war crimes and crimes against humanity by the ICC for the scorched earth campaign he has directed against Gaza. Yet France (a State Party to the Rome Statute) stated that it will afford him immunity should he travel to France, disrespecting the judgment of the ICC Appeals Chamber that heads of State do not enjoy such immunity from ICC proceedings, and Hungary – also a State Party – has now announced its withdrawal from the Rome Statute rather than arrest him. Imagine, however, if the warrants – not only against Israeli officials but Hamas officials – had been implemented in a timely manner; Netanyahu may not have been in a position to launch a unilateral attack against Iran, and the justice sought from the ICC by the victims of the Hamas attack (who flew to the Hague to demand it in 2024) might be at least in process.
Mustering the Political Will to Forge a Way Forward
The Rome Statute was premised on the core principles developed at Nuremberg and reinforced by the work of the ad hoc international criminal tribunals: that immunity and a lack of accountability for the commission of international crimes leads to impunity for those crimes, with disastrous consequences for the communities in which those crimes are committed, and for global peace and security more generally. Building upon the Nuremberg precedent, which itself emerged from the ashes of World War II, and the failure to insist upon accountability after World War I, the judgment of the States that came together in 1998 to create the Court was that a strong, uniform, jurisdictional regime would be needed for the Court to succeed in its important work.
While many ICC States Parties continue to maintain that view, others do not. The truncated jurisdictional regime for the crime of aggression that resulted from the difficult compromises made at the Kampala Review Conference – and that States will endeavor to amend this summer so as to bring the Court’s jurisdiction over the crime of aggression into alignment with its jurisdiction over the other three crimes – is evidence of that; the refusal to commit to fully implementing the Court’s arrest warrants furnishes additional proof. Sanctioned from without, and eaten away at from within, the Court is now faltering – becoming a Potemkin Tribunal rather than a robust international court — just at the time when the world needs it the most. What can States Parties to the Rome Statute do to stop the ICC’s slide into irrelevance?
First, States Parties must consistently execute the ICC’s Arrest Warrants. The ICC itself has accepted the idea of collective conferral in its unanimous Appeals Chamber ruling that there is no immunity for heads of State, even those of States that are not party to the ICC, assuming that the Court’s jurisdiction is otherwise properly established. Indeed, the ICC’s chambers have uniformly rejected the delegation theory although they sometimes confusingly employ the term “delegation” (intended with a differing meaning than the delegation theory described above). The Court’s chambers have found the Court’s exercise of jurisdiction in the Palestine, Bangladesh/Myanmar, Sudan, and Afghanistan situations, which presented similar issues of jurisdiction, including over the nationals of non-States Parties, and even their heads of State, to be consistent with international law and the Rome Statute. Likewise, the Court found that Mongolia was required to arrest Putin when he traveled there under its legal obligations as set forth in the Rome Statute, and that warrants could be issued against Benjamin Netanyahu and Yoav Gallant.
Second, States Parties must adopt the proposed amendments slated for review at the upcoming special session of the Assembly of States Parties to the Rome Statute, to bring the ICC’s jurisdictional regime regarding the crime of aggression into line with the jurisdiction of the Court over the other three core crimes. These amendments have been widely endorsed by civil society as well as by academic experts. What is lacking most is political will. The fact that the ICC did not have the authority to prosecute Putin for invading Ukraine in 2022 but could bring a case against him and his regime for war crimes (and crimes against humanity) exposes a weakness in the Rome Statute that States can remedy immediately by adopting the proposed amendments and then ratifying them.
Aggression is the only one of the four core crimes that is truly aimed at the protection of those tasked with fighting the awful wars begun by their leaders. Russia’s war against Ukraine has not only devastated Ukraine but has also cost the lives of an estimated 250,000 Russian soldiers and 100,000 Ukrainian soldiers, with total counts of injured and killed now nearly 1,000,000 for Russian troops and 400,000 for Ukrainian troops. The death and injury tolls from these wars should inspire the rejection of immunity for launching illegal wars, the same as for the commission of war crimes, genocide, and crimes against humanity. No longer is state sovereignty embodied in the person of the ruler, either by divine right, self-proclamation, inheritance, or other devices. Instead, modern leaders must be accountable both to their own citizens and to the international community under the law. It is ironic that many of the same States that fought to hamper the Court’s jurisdiction over the crime of aggression at Kampala in 2010 later referenced the necessity for international law to hold Vladimir Putin responsible for “aggression and atrocity” after his invasion of Ukraine in 2022. Of course, the ICC could not do so precisely because the aggression regime had been crippled at Kampala, necessitating the creation of the STA referenced above.
Finally, ICC States Parties must continue to prove that they are good stewards of the Court by managing it effectively, making sure that the highest standards are upheld for its officers, encouraging additional States to ratify the Rome Statute, and galvanizing existing States Parties to support it politically rather than punish it for doing what it was created for by a majority of the world’s States. The slow response of the ICC Assembly of States Parties to the serious allegations levied at the current ICC Prosecutor is worrying, particularly given the focus of the Independent Expert Review on the need to ensure a positive workplace culture. The failure to adequately fund the Court is another significant source of worry. While the United States has always viewed the ICC as a sword poised to strike at American soldiers, that view misses the point: In fact, accepting the Court’s jurisdiction means not only that a State agrees that its leaders will not commit or order the commission of crimes covered by the Rome Statute, but that it will have a pathway for recourse should its own nationals or territories be subject to such crimes and justice is not pursued at the national level.
In a world that is becoming increasingly Hobbesian in character, States must find the political will to move forward and support the ICC, rather than abandon the energy, enthusiasm, and principles that drove its creation at Rome. Otherwise, the Court may become a largely irrelevant Potemkin Tribunal; and the world will become a much more cruel and violent place.
