As the International Criminal Court’s (ICC) annual meeting opened on Dec. 1, Judge Tomoko Akane, ICC president, vowed to stand firm against international threats and coercion. The Court is currently facing the greatest challenge of its 23-year existence, weathering unprecedented attacks from powerful States. In November 2024, Moscow issued arrest warrants for ICC officials in response to the ICC’s investigation of Russian behavior in Ukraine. And this year, the Trump administration imposed sanctions on multiple judges and the Court’s Chief Prosecutor in retaliation for the Court’s investigations of U.S. and Israeli officials. These overt attacks on the ICC follow years of increasingly hostile rhetoric by adversaries of the Court and withdrawals by State parties who found themselves in the Court’s crosshairs.
While political battles over the ICC rage, it’s easy to lose sight of its intended purpose and, more importantly, to what extent it has achieved that purpose over the past 23 years. The Rome Statute established the ICC in 2002 as a permanent international court tasked with pursuing justice for the world’s worst atrocity crimes when domestic courts fail to act. Although the Court is primarily a judicial body, the ICC’s early proponents argued that creating this permanent institution would not only promote justice but would also deter human rights abuses and facilitate peace in the world’s war-torn regions. Twenty-three years on, we can look back on the ICC’s record and empirically assess such optimistic claims. The empirical record shows that neither the Court’s proponents nor its detractors are fully correct: although ICC intervention does appear to deter atrocities, on balance, its involvement in ongoing civil wars fails to facilitate peaceful settlement in most cases.
Can the ICC deter atrocities?
Political science research on the effects of the ICC paints a relatively favorable picture of its ability to deter atrocity crimes. Empirical evidence indicates that ratifying the Rome Statute leads to better human rights practices (Appel 2013), particularly among governments that also face domestic and/or international pressure to adhere to human rights standards (Jo and Simmons 2016).
After the ICC becomes actively involved in a country, pursuing specific actions to investigate or prosecute alleged atrocity crimes, evidence suggests its actions can deter warring parties from engaging in atrocities and war crimes. In Libya in 2011, for example, ICC actions including press releases, initiating an investigation, and requesting warrants led to significant drops in violence against civilians (Hillebrecht 2016). A cross-national examination of the effects of ICC preliminary examinations, investigations, and arrest warrants shows a similar reduction in violence by both government and rebel actors (Jo and Simmons 2016).
More recent work tempers these conclusions somewhat, showing that the ICC is better at deterring rebels than governments from committing atrocity crimes (McAllister 2023), and that although the Court does, overall, reduce atrocity crimes, it does not seem to prevent combatants from engaging in sexual violence (Broache and Kore 2023).
Does the ICC promote peace?
Although the Court, on balance, seems to reduce atrocities, it may be unable to promote the peaceful resolution of ongoing wars. In my work, I analyze data on civil conflicts fought between governments and rebel groups across 48 different countries during the first eleven years of the ICC’s existence, finding no evidence that intervention by the ICC (e.g., examinations, investigations, or warrants) promotes conflict termination. In fact, my research shows that ICC involvement actually lengthens civil conflict, preventing peaceful resolution, under certain conditions (Prorok 2017).
To understand why this is the case, consider the strategic incentives of rebel and government leaders involved in civil wars. Political leaders engaged in violent conflict often make decisions primarily driven by survival instinct – that is, by a desire to avoid losing political power, being exiled, imprisoned, or even assassinated. Although ending a war almost certainly makes the average civilian safer, it may not do the same for political leaders, who are relatively insulated from the direct costs of war during fighting, but who become exposed to potential repercussions at war’s end. The very process of negotiating peace can expose leaders to extreme political and physical peril, such as internal overthrow by rebel dissidents or execution by government operatives (Prorok 2016). For example, Abdul Rahman Ghassemlou, leader of the Kurdish Democratic Party of Iran (KDPI) in the 1970s and 80s, was assassinated during peace talks with representatives of the Iranian regime in 1989. Cosan Kabura, leader of Palipehutu-FNL in Burundi, was sacked by other top FNL officials in 2001 for engaging in peace talks with the Burundi government. The fact that such consequences are relatively common makes ending war extremely risky, creating powerful incentives for leaders to avoid peace-making.
ICC involvement in an ongoing conflict situation, in particular, affects leaders’ willingness to make peace in two ways.
First, ICC involvement can make getting to the negotiating table more difficult. Targeted leaders will avoid talks, staying entrenched in strongholds and avoiding direct contact with their opponents and international mediators who might act as the Court’s enforcers, capturing and transferring a fugitive leader to the Hague for prosecution. For example, ICC warrants presented a major stumbling block to the resolution of civil war in Uganda in the mid-2000s. Lord’s Resistance Army (LRA) leader Joseph Kony didn’t show up to the signing of the Juba Peace Accords in April 2008, out of fear that he would be arrested and transferred to the Hague for prosecution. The ICC case remained a major stumbling block throughout negotiations between the warring parties in Uganda; rebel leaders continually called for the ICC to drop its investigation as a precondition for negotiations and settlement (Souare 2009), while simultaneously promoting an alternative traditional justice process that would allow them to escape prosecution and jail time.
Second, ICC involvement can undermine a critical peacemaking tool: amnesty for peace deals. Although controversial, amnesty is often offered to rebels as a bargaining chip during peace negotiations (Dancy 2018). If key leaders can avoid jail time for their participation in rebellion, they may be more likely to reach a peace deal with the State. Even though the Rome Statute does not explicitly prohibit the court from honoring domestic amnesty deals, legal scholars have argued that the Office of the Prosecutor (OTP) will not recognize such deals, particularly if they pardon elites (Majzub 2002; Robinson 2003). In practice, the OTP has adopted this strict interpretation of the Rome Statute. For example, after Ugandan President Yoweri Museveni offered LRA leaders amnesty in exchange for peace in May 2006, an ICC spokesperson ridiculed this move, saying that Uganda was “under obligation” to facilitate the ICC investigation and arrest wanted suspects (New Vision). Similarly, during peace talks in Colombia, ICC involvement complicated peacemaking with the FARC by taking amnesty off the table. By effectively invalidating domestic amnesties, the ICC keeps alive the threat of prosecution, taking a key bargaining chip off the table, increasing leaders’ fear of punishment, and making it more difficult for combatants to reach a settlement deal.
Thus, by complicating negotiations and effectively invalidating amnesties, threats of ICC prosecution make leaders hesitant to talk peace. They instead avoid negotiations, retrench in safe havens, and choose to continue fighting rather than ending war, sometimes even when prospects for victory are bleak.
The Path Forward?
Although these findings indicate that the Court may be detrimental to the cause of peace, it would be a mistake to join calls for the dismantling of the ICC for two reasons.
First, the ICC only has this conflict-lengthening effect when leaders do not anticipate punishment at home – by their constituents or domestic political opponents – for war crimes or poor war performance. This is because domestic punishment is usually more severe than ICC prosecution: the ICC does not use the death penalty, has relatively short prison sentences, and ensures due process and the rights of the accused, whereas punishment at home often involves execution, torture, exile, or long prison sentences and harsh prison conditions, all of which are more severe than what these leaders would face at the Hague. The difference in severity means that when leaders are at high risk of domestic punishment, the threat of ICC prosecution will have little impact on their decision-making regarding whether to end a war, because they are preoccupied by the more severe threat. Only when domestic risk is low – when leaders believe they can avoid prosecution or other punishments at home – does the risk of ICC prosecution, specifically, lengthen conflict.
In extreme cases, an active ICC warrant may actually facilitate conflict termination by providing particularly embattled leaders a relatively safe outside option. When domestic opponents are closing in and capture, execution, and similar dangers are imminent, a targeted leader may surrender and submit to prosecution at the ICC as the lesser of two evils. Anecdotal evidence supports this theory: Bosco Ntaganda, leader of the M23 rebel group in DRC, walked into the U.S. Embassy in Rwanda in 2013 and asked to be surrendered to the ICC. Analysts speculate that Ntaganda’s decision was prompted by severe in-fighting within M23 that threatened his life. Similarly, Ali Kushayb, Janjaweed militia leader in Darfur, surrendered to the ICC in 2020 after his powerful domestic backer, Omar al-Bashir, fell from power, leaving Kushayb highly vulnerable. When leaders choose ICC prosecution as a way to avoid much more severe domestic punishment, the ICC may become a tool to help end ongoing conflict. Leaders submit to international prosecution and leave the battleground, which may facilitate those left at home reaching an accord without the looming threat of the ICC preventing settlement.
Second, we should consider the ICC’s impact holistically. The empirical record suggests a tradeoff between deterrence and peace: although the Court is, in some circumstances, detrimental to the cause of conflict settlement, it has contributed to the deterrence of atrocity crimes in targeted States, reducing the human toll of war on vulnerable civilian populations. Although reaching lasting solutions to ongoing civil wars is critically important, so is restraining violence against civilian populations living in war torn societies. By thoughtfully selecting where and when to intervene, the ICC can maintain or increase its deterrent effect without disincentivizing peace efforts.
This suggests a tradeoff in the court’s impact. We cannot characterize the court as wholly detrimental nor fully beneficial to the cause of peace, but instead must recognize the nuances in the ICC’s political impact.
