Author : RITISH HANS from LAW CENTRE 2, FACULTY OF LAW, UNIVERSITY
OF DELHI.
Abstract
The International Criminal Court (ICC) was created to ensure that the gravest international crimes would not go unpunished simply because perpetrators were powerful or protected by state borders. More than two decades after the Rome Statute came into force, however, the Court faces a crisis of effectiveness and legitimacy. While the ICC has contributed significantly to the development of international criminal law and the principle of individual accountability, its
dependence on state cooperation, the absence of major powers from its jurisdiction and the
influence of geopolitics have severely limited its reach. This article examines the origins,
mandate, achievements, and structural constraints of the ICC, and argues that although the Court
remains normatively indispensable, its capacity to deliver meaningful justice in contemporary
conflicts is deeply fragile.
Introduction
The modern project of international criminal justice was born from the catastrophe. The mass atrocities of the Second World War forced the international community to confront a difficult truth which is that certain crimes are so grave that they cannot be left to the discretion of domestic politics. The Nuremberg and Tokyo Trials marked the first serious attempt to hold individuals criminally responsible under international law. Yet these tribunals were ad hoc and temporary, created in the aftermath of victory.
It was only in 1998, with the adoption of the Rome Statute, that the world attempted to
institutionalize international criminal justice through a permanent court. The International Criminal Court, which came into existence in 2002, was founded on a radical promise that, genocide, crimes against humanity, war crimes, and aggression would no longer enjoy impunity merely because they were committed by those in power. 1 Two decades later, the optimism that surrounded the birth of the ICC has faded. The Court continues to exist, continues to investigate, and continues to issue arrest warrants. Yet in many of the world’s most serious conflicts, accountability remains elusive. This raises an unavoidable question that, is the International Criminal Court still relevant in a world dominated by
geopolitics and unequal power?
The Mandate and Structure of the ICC
The ICC derives its authority from the Rome Statute of 1998, which defines its jurisdiction over four core crimes that are genocide, crimes against humanity, war crimes, and the crime of aggression. 2 Unlike domestic courts, the ICC exercises jurisdiction only under specific conditions. It may act when the accused is a national of a state party, when the crime is committed on the territory of a state party, or when a situation is referred to it by the United Nations Security Council.
Central to the Court’s design is the principle of complementarity. The ICC does not replace national courts. It intervenes only when domestic jurisdictions are unwilling or unable to prosecute. 3 This principle reflects an attempt to respect state sovereignty while preventing impunity. Yet this structure contains an inherent weakness. The Court has no independent enforcement machinery. It has no police force, no army, and no compulsory means of arrest. It depends entirely on the cooperation of states. When states refuse to cooperate, the Court’s authority becomes largely symbolic. 4
Early Promise and Symbolic Achievement
In its early years, the ICC appeared to fulfil many of its founding aspirations. The Court opened investigations, conducted trials, and secured convictions, particularly in African conflicts. These cases demonstrated that international criminal law was no longer merely theoretical.
One of the most significant moments in the Court’s history was the issuance of an arrest warrant against Sudanese President Omar al-Bashir in 2009.5 for the first time, a sitting head of state was formally accused by a permanent international court. This sent a powerful signal: sovereignty would not automatically shield perpetrators from accountability.
Even where arrests did not occur, the ICC played an important normative role. It strengthened the idea that international crimes generate personal criminal responsibility, not merely state liability. The existence of a permanent court altered the language in which mass atrocities were discussed.
The Problem of Selective Justice
Despite these achievements, the ICC soon faced growing criticism for its apparent selectivity.
For many years, almost all of the Court’s cases concerned African states. This led to accusations that international criminal justice was being applied disproportionately to weaker countries, while powerful states remained beyond reach. 6
The structural roots of this problem are clear. Major powers such as the United States, Russia, China, and India are not parties to the Rome Statute. As a result, crimes committed by their nationals fall outside the Court’s ordinary jurisdiction. Only a Security Council referral can bring such situations within the ICC’s reach.
Yet the Security Council itself is dominated by these same powers through the veto system. This produces a disturbing contradiction: the Court claims to enforce universal norms, but its jurisdiction is filtered through the very power structures it is meant to restrain 7 International criminal justice thus operates in an uneven world, where accountability often tracks political weakness rather than legal culpability.
Geopolitics and Contemporary Conflicts
The tension between law and politics becomes starkly visible in contemporary conflicts.
In Ukraine, the ICC issued an arrest warrant against the Russian President for alleged war crimes related to the deportation of children. 8 While legally significant, the practical prospects of enforcement remain remote. Russia does not recognize the Court, and there is little realistic expectation that the accused will ever appear in The Hague. In the context of Israel and Palestine, the ICC has faced intense political pressure. In 2021, the Prosecutor announced the opening of a formal investigation into alleged crimes committed in the occupied Palestinian territory 9 the reaction from powerful states was swift and hostile. The Court found itself caught between legal duty and geopolitical retaliation.
Similarly, in Afghanistan, attempts to investigate alleged crimes by foreign forces led to
sanctions against ICC officials. When the Court tried to apply the law to powerful actors, it faced institutional punishment. These episodes reveal a hard truth: international criminal law functions in a world where power often overrides principles.
The Crisis of Legitimacy
Beyond operational difficulties, the ICC faces a deeper crisis of legitimacy. Several African states have threatened withdrawal from the Rome Statute, accusing the Court of bias. 10 Others argue that international prosecutions can undermine peace processes by discouraging negotiated settlements.
Victims, too, often experience frustration. Investigations take years. Trials move slowly.
Convictions are relatively few. The promise of justice is frequently delayed, diluted, or denied.
Yet abandoning the ICC would not solve these problems. The absence of international
accountability would return the world to an era of near-total impunity for mass crimes.
The real challenge is not whether the ICC should exist, but whether it can be reformed to
function more fairly and effectively.
Is International Criminal Justice Possible?
At a deeper level, the difficulties of the ICC reflect a broader philosophical dilemma.
International law is built on the idea of sovereign equality, but the international system is
structured by profound inequality of power.
A legal system that depends on the consent of the powerful is necessarily fragile. International criminal justice advances not through idealism alone, but through gradual political accommodation.
The Nuremberg Trials were possible only because the defeated powers had lost the capacity to resist. The ICC functions best when political conditions permit accountability. International criminal law, therefore, is not a purely legal project. It is a political–legal experiment, advancing slowly, unevenly, and imperfectly.
The Continuing Relevance of the ICC
Despite its failures, the ICC remains deeply relevant.
First, it preserves the principle that certain crimes are not matters of domestic discretion but of international concern. Even when arrests do not occur, the existence of warrants signals that atrocities will not be forgotten.
Second, the Court contributes to the historical record. Investigations document crimes, preserve evidence, and counter denial.
Third, the ICC shapes global norms. Over time, the idea that leaders can be held personally responsible has gained acceptance.
The Court may not yet deliver universal justice, but it has changed the moral vocabulary of international relations. 11
Conclusion
The International Criminal Court stands at a crossroads. It embodies one of humanity’s highest aspirations: that no crime is beyond law, and no criminal beyond justice. Yet it also embodies the limits of law in a world structured by power. The ICC is neither a failure nor a success. It is an unfinished institution struggling within an imperfect international order. Its future relevance will depend not only on legal reform, but on whether states are willing to place justice above politics. Until then, international criminal justice will remain fragile, necessary, and deeply contested.
In a world of growing conflicts, the ICC may not yet deliver universal justice. But without it, the very idea of justice beyond borders would disappear.
Refrences
- Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002).
- Rome Statute of the International Criminal Court (n 1) arts 5–8.
- International Criminal Court, Understanding the Principle of Complementarity (ICC 2013).
- International Centre for Transitional Justice, The International Criminal Court and
Complementarity (ICTJ 2016). - Prosecutor v Omar Hassan Ahmad Al Bashir (Warrant of Arrest) ICC-02/05-01/09 (ICC, Pre- Trial Chamber I, 4 March 2009).
- Amnesty International, The ICC at 20: Double Standards Have No Place in International Justice (Amnesty International 2022).
- William A Schabas, ‘The International Criminal Court: A Selective Justice?’ (2010) 8 Journal of International Criminal Justice 1049.
- International Criminal Court, Statement on the Issuance of Arrest Warrants in the Situation in Ukraine (ICC, 2023).
- Office of the Prosecutor, International Criminal Court, Statement on the Opening of an Investigation into the Situation in Palestine (3 March 2021).
- Human Rights Watch, African States and the International Criminal Court (HRW Reports).
- International Centre for Transitional Justice, Why International Criminal Justice Matters (ICTJ)