As the Assembly of State Parties (ASP) of the International Criminal Court (ICC) meet in New York this week for a special session to review the amendments on the crime of aggression, they will assess whether the Court should expand its mandate and take on bold reforms. Under consideration is whether the ICC’s jurisdiction over the crime of aggression should expand beyond the contours negotiated in Kampala in 2010, and potentially cover conduct by non-State parties, including the United States.
There are many advocating for the ASP to take a more forceful stance against global impunity for the crime of aggression (see Sadat, Coracini, and Kreß). Yet the timing of the current reform push is, in many ways, paradoxical. The ICC is being asked to expand its scope and to take on more complex cases in more hostile political environments at a moment when it is still struggling to execute its existing mandate. As someone who has served as an ICC prosecutor, represented the U.S. government before the ASP, and advocated for victims at the Court, I believe this approach risks misdiagnosing the ICC’s core challenges. Many of these well-intentioned recommendations reflect the very dynamics that have weakened the Court’s legitimacy and effectiveness.
Rather than broadening the Court’s jurisdiction at this juncture, the ASP should use this week’s session to reinforce the ICC’s foundations and ensure the Court can credibly discharge its existing mandate. State parties must remember the inextricable link between law and politics and the perils of legal overreach. Now is the time to focus on internal consolidation and institutional discipline before any expansion of jurisdiction or mandate is considered.
To be clear, this is not to suggest that the Court’s jurisdictional framework for aggression should never be revisited, nor that the proposed amendments lack merit. It is also not to deny that external pressures, in particular U.S. sanctions, pose existential threats to the Court’s stability and the risks inherent to perceived capitulation. But the analysis here proceeds irrespective of those threats: even absent such external factors, an institution already straining under its own weight faces grave risks in further expanding its mandate. For the ICC to survive and fulfill its mission, the ASP must first reinforce its foundations.
Legal Idealism vs. Political Reality
In a recent piece for Just Security, Leila Nadya Sadat outlines how the Court can bolster and expand its authority. But a core premise of her argument is that the ICC should operate insulated from political realities. This notion echoes arguments from some who imply that international criminal law is the exclusive province of judges and prosecutors, with States confined to implementing their rulings.
But international criminal law has never been politically neutral. As Martti Koskenniemi, a leading scholar and former diplomat, has long observed, politics is implicit in every act of defining, interpreting, and applying international law. The Rome Statute itself reflects a political compromise, shaped by divergent legal cultures, strategic interests, and diplomatic trade-offs. Customary international law, the backbone of ICC jurisprudence, is built on opinio juris and state practice, both deeply influenced by geopolitical realities.
This political character also shapes day-to-day decisions. Prosecutorial discretion over who is indicted, for what crimes, and when, cannot be divorced from global politics. Judicial rulings, however legally reasoned, are equally shaped by institutional priorities, resource constraints, and diplomatic pressures. This includes pressures to expand the Court’s normative jurisdictional framework to reach situations that appear politically attractive.
These dynamics are particularly salient at this week’s special session. The core of discussions about potential expansions of the ICC’s jurisdiction over the crime of aggression are political disputes that have little to do directly with the ICC itself. Some of the most ardent supporters of the Kampala amendments, which were adopted in 2010 and incorporated the crime of aggression into the Rome Statute, have conceded that the practical application of aggression prosecutions raises profound questions about State consent, Security Council primacy, and geopolitical stability, as well as the wider implications for international governance.
For some States, this moment presents an opportunity to position the ICC as a check on perceived U.N. overreach. By framing the ICC as a separate mechanism for condemning and adjudicating the legality of military actions, particularly in situations where those States disagree with the Security Council’s decisions or failure to prevent or censure the use of force, these States seek to amplify broader efforts at U.N. reform and secure a definitive outcome beyond the political compromises of New York. Even the contentious decision to persist in holding the special session in New York—despite the well-known U.S. position on the crime of aggression (see Koh and Buchwald), the Trump administration’s hostile posture toward the Court, and clear opportunities to convene in The Hague—signals a deliberate political message: a refusal to capitulate in the face of external threats.
Some reform advocates counter that acknowledging politics risks normalizing impunity (see e.g. Kreß, McDougall, Trahan). They argue that the ICC was created precisely to rise above political compromise and to hold even the most powerful actors to account. This aspiration is admirable. However, ignoring the political underpinnings of international law is not only unrealistic but dangerous. It leads to missteps in strategy, alienates States whose cooperation is essential, and undermines the very authority the Court needs to function.
Worse still, efforts to position the Court at the center of global political disputes at a moment when it is institutionally weakest, risk overextending its mandate and accelerating its crisis of legitimacy. This is particularly the case when the Court lacks stable and sustainable funding, consistent political backing, and the intelligence-sharing vital to conducting complex investigations, especially from the world’s largest economies and biggest militaries. Expecting the ICC to succeed in such conditions is akin to sending a firefighter into a raging inferno without water or protective gear: the ambition may be noble, but the resources are grossly mismatched to the task. Pragmatism does not mean surrender to power politics. But it does mean building credibility incrementally in a world where political realities are inescapable.
Overreach and Its Discontents
The ICC’s legitimacy crisis is not simply the result of state backsliding or populist resistance. It is also a consequence of the Court’s own choices, particularly its repeated efforts to expand jurisdictional reach and normative authority in ways that outpace both legal consensus and political feasibility.
The retreat by States from obligations concerning head-of-state immunity, for instance, should not be read solely as a betrayal of international justice. It reflects a deeper discomfort with the Court’s legal reasoning and its willingness to stretch interpretive boundaries without sufficient deliberation or clarity. The doctrine of head-of-state immunity, especially in relation to non-State parties, sits at the contested intersection of international criminal law and international relations. The ICC’s approach to this issue has raised concerns not merely about outcomes, but about process: a perceived lack of analytical rigor, insufficient engagement with opposing legal views, and a failure to anticipate or mitigate the diplomatic consequences of its decisions.
Similarly, the jurisdictional theory adopted in the Myanmar situation, where the ICC exercised jurisdiction over a non-State party to the Rome Statute because an element of the crime (deportation) occurred on the territory of a State party, has never been extended to investigations of international crimes committed in Iran, Syria, and elsewhere. This omission, where the commission of crimes are indisputable and the needs for justice equally as great, has come under serious scrutiny and has been weaponized by the Court’s critics, particularly as it has moved to open investigations against Israeli officials. It underscores not only the political dimensions of the Court’s choices but also the political risks of expanding its jurisdictional framework without the institutional capacity to apply it consistently and principledly, thereby inviting accusations of politicization.
This overreach is compounded by a pattern of symbolic gestures at the expense of sustainable progress, a dynamic that will only be aggravated by further jurisdictional expansion. The backlog of unexecuted arrest warrants underscores this tendency, as to other practices. Policy papers from the Office of the Prosecutor often resemble theoretical, academic treatises rather than actionable frameworks. Preliminary examinations are expansive yet lack clear exit strategies. Prosecutorial priorities favor high-profile indictments over meticulous case-building, and charging decisions privilege thematic narratives over evidentiary rigor.
Some proponents of expansion argue that without a more ambitious mandate, the ICC risks irrelevance. They claim that global atrocities demand a Court willing to innovate, even if it means operating at the outer edges of its legal authority. Yet this reasoning conflates ambition with effectiveness. The credibility of international justice depends on the Court’s ability to deliver fair trials, uphold rigorous legal standards, and maintain broad-based support. Prosecutor Karim Khan himself echoed this sentiment when he first took office, noting famously “Opening preliminary examinations, requesting authorization or commencing investigations is a start, but, as we say in English, the proof of the pudding is in the eating. We have to perform in trial.”
Dysfunction from Within
No conversation about the ICC’s challenges is complete without confronting its internal dysfunction. The Court’s reputation for uneven case management, questionable legal reasoning, and internal governance failures has long been an open secret among practitioners. Yet these issues are often treated as secondary to the external threats posed by non-cooperation and political obstruction.
In fact, they are central. The credibility of the ICC’s legal decisions cannot be divorced from the quality of their legal analysis. When judicial opinions lack clarity, when evidentiary standards fluctuate, when trials collapse after years of proceedings, when harassment and bullying appears to continue unchecked and internal mechanisms fail, and when investigative practices are inconsistent, the result is not just inefficiency, it is erosion of trust. States, victims, and civil society actors begin to question whether the Court is upholding its own standards. That skepticism translates into reduced cooperation, diminished resources, and reluctance to enforce arrest warrants or assist in investigations.
Advocates for reform might respond that institutional weaknesses should not preclude the Court from pursuing broader justice goals. But this logic risks compounding the problem. A Court struggling to fulfill its current mandate is ill-equipped to bear an even heavier load. Expansion without consolidation will only magnify existing shortcomings.
Recalibrating Reform
The Court cannot afford to overpromise and underdeliver anymore. Every failed prosecution, every unexecuted arrest warrant, and every example of poor legal reasoning undermines the broader project of international justice.
Rather than framing the Court’s challenges as a call to arms for more expansive authority, the ASP should view this moment as an opportunity for recalibration. The ICC should focus on demonstrating excellence in the cases it has, building trust with governments and civil society, and refining its legal methodologies. It should resist the temptation to pursue symbolic victories that cannot be sustained, and instead anchor itself in careful, disciplined, and principled action.
The ICC’s future does not depend on how many situations it investigates or how many crimes it claims jurisdiction over. It depends on whether it can conduct fair trials, reach sound legal conclusions, and demonstrate value to those it purports to serve.
This week’s special session in New York presents an opportunity not for grand ambitions but for pragmatic steps to strengthen the ICC’s ability to fulfill its mandate. States should:
- Reaffirm the Court’s foundational principles, including complementarity and its carefully negotiated jurisdictional limits;
- Demand a clear-eyed assessment of the ICC’s operational performance and governance challenges;
- Prioritize institutional strengthening over jurisdictional or normative expansion;
- Encourage consensus-based reforms that build confidence among States parties and avoid deepening political fractures.
These reforms are not glamorous, and they do not offer the moral clarity of new mandates or jurisdictions. But they are essential to restoring credibility. Without them, any expansion of the Court’s authority will rest on a hollow foundation.
