May, 2025
Not everyone is held accountable by the law. Even less by international criminal law. The International Criminal Court (ICC) is our modern-day Don Quixote. Idealism runs in its roots. A product of the global movement that has time and time again drawn criticisms for being ineffectual. And in a number of aspects, let us down.
Following a relatively short lineage of post-war ad hoc tribunals, the ICC was established in 2002 on the foundations of the Rome Statute. Even though prosecutions and trials for international crimes is not a modern invention, the ICC stood in stark contrast to the tribunals that came before it. One could attribute its novelty to the 20th-century push for international cooperation and global institutions in the aftermath of World War I. Its permanence, wide-ranging jurisdiction, and operating principles has led to an enthusiastic view of the ICC as a revolutionary beacon of international criminal justice. There was, in particular, a hope that the Court would progress beyond the punitive purpose that tribunals like the Nuremberg trials or the more recent International Criminal Tribunal for the Former Yugoslavia (ICTY) were established for. At its inception, the Court was born with the expectations that it could generally deter other offenders from mass atrocities and war crimes.
Yet, as of February 2025, only 11 individuals have been convicted by the Court. Though it would be a serious mistake to measure the effectiveness of justice by the number of convictions, the raw numbers is just one of many symptoms that the system may be lacking somewhere. While factors like procedural and financial difficulties may have contributed to the ICC’s slow-moving gears, a significant part of the problem can be traced to non-compliance with arrest warrants among states. For example, former President of Sudan Omar Al Bashir continues to remain at large despite having two arrest warrants issued against him since 2009 because Party States like the Republic of Chad and the Republic of Malawi failed to cooperate with the Court’s request for his arrest and surrender.
A Decay in the ICC’s Teeth
Al Bashir’s case is just one of many that reflects the ICC’s inherent vulnerability to the politics of individual states. Despite its broad authority, the ICC suffers the irony of international law - a constrained ability to enforce. It is not surprising that states would have more pressing political concerns that supersede its obligations to the Court to enforce its warrants especially against another sovereign. For Al Bashir and the Republic of Chad, it could be the political expense of damaging diplomatic ties not only with Sudan but also with the African Union - a regional bloc which the Republic is a member of. Convincing a state to give up its own sovereign, current or former, may prove to be a task with greater difficulties. Sometimes, these leaders retain immense political capital and popularity even after relinquishing formal power. Of course, the domestic winds might change and political rivals gain power. Former President of the Philippines, Rodrigo Duterte, faced this reality when a falling out with the new Marcos’ administration resulted in his arrest and surrender to the ICC.
As some commentators have pointed out, however, Duterte’s arrest after preliminary investigations in 2018 is a double-edged win for the ICC. It is the epitome of an issue that has plagued the Court for years - that international criminal justice remains at the mercy of political whims. And frequently, a product of victors’ justice. If anything, riding on these ‘wins’ would certainly deter states, whose leaders of the day might be afraid of being politically targeted by the very same tools, from buying into the cause.
ASEAN reluctance
Of the ten ASEAN member states, only two are parties to the ICC. Singapore is not one of them. The sensitivity of Asian-Pacific states to ratifying the Rome Statute spawns from a multitude of reasons. One of them might be that the west-dominated project, that is the ICC, continues to trigger a “colonial hangover” which may often be exacerbated by the differences in cultural views towards criminal justice. Another could be the contrast in domestic constitutional legalities and what the prevailing rights-focused doctrines proliferated by some major international players.
Enhancing compliance through diplomatic means
The quixotism of the ICC, however, necessarily speaks of hope for change. That of visionary action. In the slow grind of international progress, then, how can the ICC enhance compliance without relying on a state’s internal political gamesmanship? Counter-intuitively, the answer might not be to continue harping on its totally apolitical image. While having an Office of the Prosecutor (OTP) that is wholly unbothered by non-legal considerations could reassure states of its objectivity, it must not forget that the ICC is, nevertheless, “nested in global politics”.
Recognising that its work has effects that extend past general prosecutorial deterrence is crucial for the ICC to leverage the law to its fullest extent in bringing justice to the worst perpetrators. The OTP’s indictment, for instance, also carries social deterrence. In her paper, Simmons highlighted social deterrence as a key pillar of the Court’s legal mandate. The ICC’s actions are bright signals of widely held values and a message that atrocities have not gone unnoticed by the broader international community.
Without forgetting the difficulties, a plausible approach that might spring from the power of social deterrence would be for the ICC to strengthen its in-house diplomacy. A sustained engagement with state human rights organisations or Non-Governmental Organisations might encourage scrutiny and accountability in state leaders - though care must be exercised to avoid impropriety and the optics that the ICC was fomenting domestic turmoil. Done correctly and with commitment, the ICC may foster domestic confidence in an impartial and consistent Court which has the potential of quelling fears that it might be weaponised in states with volatile political environments.
Conclusion
There is certainly no silver bullet for the problems that the ICC face. As a global institution, political challenges naturally intrude into its all-important work. How it reacts to these challenges in this century will define its influence on humanity’s progress towards a comprehensive and effective international criminal justice.
Steinberg, Richard H., Politics and Justice at the International Criminal Court (September 23, 2024). 57 Israel Law Review 2 (2024); UCLA School of Law, Public Law Research Paper No. 24-34, Available at SSRN: https://ssrn.com/abstract=4965347 or http://dx.doi.org/10.2139/ssrn.4965347
Susanne D. Mueller (2014) Kenya and the International Criminal Court (ICC): politics, the election and the law, Journal of Eastern African Studies, 8:1, 25-42, DOI: 10.1080/17531055.2013.874142
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