The Role of the ICC

Introduction

The International Criminal Court (ICC), established in 2002, seeks to hold to account those guilty of some of the world’s worst crimes. Champions of the court say it deters would-be war criminals, bolsters the rule of law, and offers justice to victims of atrocities. But, since its inception, the court has faced criticism from many parties and has been unable to gain the membership of several major powers, including the United States, China, and Russia. Two countries have withdrawn from the court, and many African governments complained in the past that its prosecutions singled out the continent.

U.S. opposition to the ICC hardened under President Donald Trump, and although the Joe Biden administration has taken a more conciliatory approach, tensions remain. The court’s warrants for national leaders including Russian President Vladimir Putin and now Israeli Prime Minister Benjamin Netanyahu have sparked pushback from Washington and raised questions over the future of the court.

What are the court’s origins?

In the aftermath of World War II, the Allied powers launched the first international war crimes tribunal, known as the Nuremberg Trials, to prosecute top Nazi officials. It wasn’t until the 1990s, however, that many governments coalesced around the idea of a permanent court to hold perpetrators to account for the world’s most serious crimes. The United Nations had previously set up ad hoc international criminal tribunals to deal with war crimes in the former Yugoslavia and Rwanda, but many international law experts considered them inefficient and inadequate deterrents.

Trinidad and Tobago requested that a UN commission look into the creation of a permanent court in 1989. In the following years, such efforts gained support, especially in Europe and Africa. The African bloc is the ICC’s largest group, though the relationship between some of the leaders of its thirty-three member countries and the court has become more tenuous in recent years. The European Union is also a staunch supporter of the court; it adopted a binding policy [PDF] in support of the ICC in 2011.

The ICC’s founding treaty [PDF] was adopted by the UN General Assembly at a conference in Rome in July 1998. After being ratified by more than sixty countries, the Rome Statute entered into force on July 1, 2002.

Which countries are members of the court?

There are 124 countries party to the Rome Statute. Some forty countries never signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey. In 2015, the ICC admitted Palestine as a member of the court despite strong opposition from the United States and its partners. Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, and Syria in addition to the United States. In February 2024, Armenia became the latest addition to the ICC, officially joining the bloc after ratifying the Rome Statute the year before.

Two countries have withdrawn from the ICC. Burundi left in 2017, following the court’s decision to investigate the government’s crackdown on opposition protests. Philippine President Rodrigo Duterte pulled out in 2019 after the court launched an inquiry into his government’s war on drugs, saying domestic courts are sufficient to enforce the rule of law. Gambia and South Africa notified the United Nations in 2016 that they intended to exit the treaty, but they later reversed course in the face of political upheaval and legal challenges. South Africa in particular has expressed frustration over what its leaders say are dominating Western interests when it comes to how international law is deployed.

How does the court work?

The ICC is based in The Hague, a city in the Netherlands that hosts many international institutions, and has field offices in several countries. The court carries out its investigative work through the office of the prosecutor, led since 2021 by British lawyer Karim A.A. Khan, who previously served as assistant secretary-general of the United Nations.

The court has eighteen judges, each from a different member country and elected by the member states. It requires its members [PDF] to seek a gender-balanced bench, and the judiciary must include representatives of each of the United Nations’ five regions. Judges and prosecutors are elected to nonrenewable nine-year terms. The president and two vice presidents of the court are elected from among the judges; they, along with the registry, handle the administration of the court.

The court has jurisdiction over four categories of crimes under international law:

●       genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or religious group, as such;

●       war crimes, including grave breaches of the laws of war under the Geneva Conventions and serious violations under customary international law, such as torture, taking of hostages, willfully causing great suffering, intentionally attacking civilian populations as such, attacking undefended civilian property, schools, historic monuments, or hospitals, using starvation of civilian populations as a method of warfare, or using child soldiers;

●       crimes against humanity, or violations committed as part of a large-scale attack against any civilian population, including murder, rape, unjust imprisonment, slavery, persecution, torture, or apartheid; and

●       crimes of aggression, where a political or military leader plans or executes the use of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or in any other manner inconsistent with the UN Charter.

The court can open an investigation into possible crimes in one of three ways: a member country can refer to the prosecutor a situation arising anywhere provided it is within the jurisdiction of the court; the UN Security Council can refer a situation occurring anywhere in the world; or, with the approval of pretrial ICC judges, the prosecutor can launch an investigation into a situation proprio motu, or “on one’s own initiative.” The court can investigate individuals from nonmember states if the alleged offenses took place in a member state’s territory, if the nonmember state accepts the court’s jurisdiction, or with the Security Council’s authorization.

To open an investigation, the prosecutor must conclude after a preliminary examination that the alleged crimes are of “sufficient gravity.” Once an investigation is opened, the prosecutor’s office typically sends investigators and other staff to collect evidence. Any arrest warrant or summons must be approved by the judiciary, based on information provided by the prosecutor. A group of pretrial judges ultimately confirms whether a case should be brought to trial. Defendants can seek outside counsel to represent them, paid for, if necessary, by the court. Convictions and sentences require the vote of at least two out of the three judges on a trial bench; convicted defendants may appeal to the ICC’s appellate bench, which is made up of five judges.

The ICC is intended to complement rather than replace national courts. It can only act when national courts have been found unable or unwilling to try a case. Additionally, it only exercises jurisdiction over crimes that occurred after its statute took effect in 2002. The court also relies entirely on the cooperation of member-state authorities to apprehend suspects, as it does not have a police force of its own. It cannot try individuals in absentia, and a member state is obligated to arrest any individual under ICC arrest warrant who is present on its territory. 

The ICC differs from the International Court of Justice—the top UN court, which settles disputes between states and is also located in The Hague—in that it prosecutes individuals. Its broad geographic reach and continuous operation distinguish it from temporary international tribunals, such as the one that prosecuted the 1994 genocide in Rwanda.

How is it funded?

The ICC’s annual budget for 2024 stands at roughly $187 million [PDF], the vast majority of which comes from member states. Contributions are determined by the same method the United Nations uses to assess dues, which roughly correspond to the size of each member’s economy. In 2022, the largest contributions [PDF] came from Japan, Germany, France, and the United Kingdom. Some countries, notably Argentina, Brazil, and Venezuela, have run up millions of dollars in overdue payments.

The UN General Assembly can approve additional funding for cases referred to the court by the Security Council, but has not yet done so. Some governments and transnational organizations also offer voluntary contributions.

Some analysts have criticized the ICC as too expensive, and say that it has failed to pursue justice against some types of crimes, such as gender-based violence. Others counter that the court has limited institutional capacity, and its cost effectiveness cannot be based solely on the number of cases it tries or convictions it secures.

What investigations and cases has the ICC opened?

The ICC has indicted more than fifty individuals, mostly from African countries. Twenty-one people have been detained in The Hague, ten have been convicted of crimes, and four have been acquitted.

Cases have been referred by the governments of Uganda, the Central African Republic, the Democratic Republic of Congo, and Mali relating to the civil wars and other conflicts that have raged in those countries. In 2021, the court opened an investigation into alleged crimes against humanity in Venezuela based on a referral from half a dozen member countries, mostly in South America.

Recent major investigations include:

Venezuela. In 2021, the court opened an investigation into alleged crimes against humanity in Venezuela based on a referral from half a dozen member countries, mostly in South America. (The probe was initially put on hold by Venezuelan authorities who wanted to take over the case, but in March 2024, the ICC ruled that it would proceed with the investigation.)

Russia-Ukraine war. The court launched an investigation into Russia’s invasion of Ukraine in 2022 after receiving a referral from more than forty member states. Though neither Ukraine nor Russia are ICC members, Kyiv accepted the court’s jurisdiction for alleged crimes on its territory going back to late 2013 and early 2014, when Russia annexed Crimea. In March 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin on charges of forcibly deporting Ukrainian children, but lacking his custody for trial in The Hague, the ICC has not yet prosecuted Putin. 

Israel-Palestinian territories conflict. The Palestinian territories first asked the ICC to investigate in the Gaza Strip and the West Bank in 2018 for crimes dating back to the conflict between Israel and Hamas in 2014; the court began the probe in 2021. In late 2023, member states Bangladesh, Bolivia, Comoros, Djibouti, and South Africa referred the Israel-Hamas war that broke out in October 2023 to the ICC, and Chile and Mexico followed up in early 2024 with a supplemental referral regarding that war.

In May 2024, ICC prosecutor Khan announced his application for arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Foreign Minister Yoav Gallant, and Hamas leaders Yahya Sinwar, Mohammed Deif, and Ismail Haniyeh. Based on survivor interviews, video and photographic evidence, and field visits by ICC officials, Khan said he has “reasonable grounds to believe” each of the five men bears “criminal responsibility” for war crimes and crimes against humanity. Both Israeli and Hamas officials denounced the development. The ICC judges still must approve the warrants for them to go into effect, a process that could take several months.

Who are some of the court’s high-profile indictments?

Benjamin Netanyahu, Yoav Gallant, and Mohammed Deif. In November 2024, the ICC’s Pre-Trial Chamber issued warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Defense Minister Yoav Gallant, and Hamas military leader Mohammed Deif on charges including war crimes and crimes against humanity. The court cited Hamas’s October 7, 2023, attack on Israel and Israel’s military campaign in the Gaza Strip. (The ICC prosecutor originally sought warrants for two other Hamas officials who were subsequently killed in the conflict.) The court wrote in its decision that there are reasonable grounds to believe that Netanyahu and Gallant “intentionally and knowingly deprived the civilian population of Gaza of objects indispensable to their survival,” while Deif is responsible for “murder; extermination; torture; and rape and other forms of sexual violence.” Israeli officials have criticized the allegations as antisemitic, and Israeli President Isaac Herzog said the warrants turned “the very system of justice into a human shield for Hamas’s crimes against humanity.” Israel—and the United States, where Netanyahu often travels—are not members of the ICC, meaning neither one is obligated to arrest him if he is within their boundaries.

Vladimir Putin. The ICC ordered Putin’s arrest on the grounds that he is allegedly responsible for the war crime of forcibly deporting and transferring “at least hundreds” of children from occupied Ukrainian territory to Russia. The court issued a corresponding warrant for Russia’s children’s rights commissioner, Maria Lvova-Belova. Ukrainian President Volodymyr Zelenskyy lauded the arrest warrants as “a historic decision” by the court. Russia’s government said it does not recognize the court’s jurisdiction, but it has acknowledged transferring Ukrainian children to live with foster families in Russia and sending them to attend “rehabilitation” programs, which some Western observers have described as propaganda or a “political reeducation.”

Many legal experts see Putin’s warrant as symbolic, noting that he is unlikely to be arrested anytime soon. However, the indictment has already limited Putin’s ability to travel abroad and attend important diplomatic forums. Putin was forced to virtually attend the 2023 BRICS summit with the leaders of Brazil, India, China, and South Africa after host government South Africa pressured him not to travel there. As an ICC member, the South African government would be compelled to arrest Putin if he joined the talks in Johannesburg. Some observers say that, even without Putin’s arrest, the ICC’s warrant furthers Russia’s status as a global pariah; he likewise skipped the 2024 Group of Twenty summit in Brazil. Around forty countries are discussing how to prosecute the crime of aggression allegedly committed by Russia against Ukraine, including the proposal for a special tribunal for that purpose. In March 2024, the ICC issued further arrest warrants for two Russian commanders for alleged war crimes committed against Ukrainian civilians.

Muammar al-Qaddafi. The Security Council referred the situation in Libya to the ICC in 2011, based on allegations that the Libyan leader and other individuals were responsible for the killing of unarmed civilians during Arab Spring protests. In June of that year the court issued arrest warrants for Qaddafi, as well as for his son and his brother-in-law, but he went into hiding and was killed before he could be apprehended. Qaddafi’s son, Saif al-Islam, remains a fugitive.

Omar al-Bashir. The first sitting president to be indicted by the ICC, Bashir is sought on allegations of genocide, crimes against humanity, and war crimes in Sudan’s Darfur region. He is accused of planning mass killings and deportations of members of several ethnic groups. Bashir avoided arrest by traveling abroad only with assurances from friendly foreign leaders that they would not turn him over. In April 2019, the Sudanese military ousted Bashir following months of anti-government protests and placed him under arrest. An ICC delegation visited the country in February 2021 to discuss cooperation with the transitional government, but it remains unclear whether Sudanese authorities will extradite Bashir.

Uhuru Kenyatta. In 2010, the ICC opened an investigation into violence that killed more than one thousand people following Kenya’s 2007 presidential election. It eventually named Kenyatta and five other major political figures as suspects of crimes against humanity. The investigation continued as Kenyatta won the presidency in 2013, with fellow ICC suspect William Ruto as his running mate. The court dropped the charges against Kenyatta the following year and those against Ruto in 2016, with the prosecutor’s office claiming that the Kenyan government was uncooperative and that witness tampering had undermined the case. In 2023, the ICC finally halted the thirteen-year investigation after failing to produce any convictions.

What is the U.S. stance?

Washington has been supportive at times and hostile at others. U.S. policymakers originally supported the concept of an international criminal court, and the Bill Clinton administration participated intensively in the UN negotiations over the Rome Statute. However, at the Rome Conference in 1998, it opposed the final draft of the treaty over concerns the prosecutor would have unchecked power and could subject U.S. soldiers and officials to politicized prosecutions, and that the treaty would not permit reservations. President Clinton later authorized U.S. Ambassador at Large for War Crimes Issues David Scheffer to sign the Rome Statute, but he recommended that it not be sent to the Senate for ratification until U.S. concerns were addressed. President George W. Bush withdrew the U.S. signature in 2002.

In 2002, Congress passed and President Bush signed the American Service-Members’ Protection Act, which required the government to cut off financial assistance to ICC members who would agree to surrender U.S. personnel to the ICC. The law also authorized the president to use all means necessary to free Americans detained by the ICC. The Bush administration struck bilateral agreements with dozens of countries obliging them not to hand over U.S. personnel. To date, the ICC has never issued an arrest warrant for any U.S. official.

Washington has backed ICC efforts on several occasions, however. In 2005, the Bush administration allowed the Security Council to refer the Darfur case, and it later offered to assist the court’s investigation, which legal experts saw as a softening of the U.S. stance. In 2011, the Barack Obama administration voted in favor of the Security Council referral for a Libya investigation. It also helped deliver several fugitives to The Hague and offered to pay millions of dollars as rewards for information on individuals accused of atrocities.

The Trump administration took a harder line, angered by then Chief Prosecutor Fatou Bensouda’s push to investigate U.S. armed forces and CIA personnel for potential war crimes in Afghanistan, as well as by her preliminary investigation into alleged Israeli crimes in the occupied West Bank and Gaza Strip. In 2018, then National Security Advisor John Bolton announced that the White House would no longer cooperate with the ICC and would block any efforts to pursue U.S. or Israeli citizens. The following year, after Secretary of State Mike Pompeo threatened to revoke the visas of any ICC staff investigating the United States, Bensouda’s U.S. visa was canceled. The ICC launched a probe into crimes in Afghanistan in 2020, reversing a previous decision not to investigate the matter. In response, Trump imposed sanctions against individuals associated with the ICC.

President Biden’s approach to the court has so far resembled Obama’s more cooperative stance. Shortly after taking office, Biden lifted the Trump-era sanctions and visa restrictions, and Bensouda noted that the two sides were working on a “reset.” In 2021, after the arrival of the new ICC prosecutor Khan, the court effectively dropped its investigation of U.S. personnel in Afghanistan. Biden was also among many global leaders who publicly hailed the ICC’s indictment of Putin. He ordered the U.S. government to share evidence of Russian war crimes with the court in 2023. Still, his administration has expressed concern over the investigation into the Palestinian territories. 

But the indictments of Israeli officials complicated matters. Biden had called the May request for arrest warrants of two Israeli officials “outrageous” and reaffirmed that the United States “will always stand with Israel against threats to its security,” while a group of leading Republican Senators called the move “a threat… to the sovereignty of the United States.” The White House also issued a statement rejecting the November warrant announcement.

CFR Senior Fellow David J. Scheffer notes that examination of the Israel-Hamas war by ICC judges in any possible future trial (following physical arrest and judicial confirmation of charges against any accused) will entail a complex study of the law of war (including self-defense) and international humanitarian law (protection of civilians), more so than in most cases before the ICC to date. He adds that “given the membership in the ICC of almost all U.S. allies and friends across the globe, any U.S. initiatives to penalize the ICC or member governments supporting it could undermine other vital American interests with those allies and friends and embolden such adversaries as the Russians and Hamas.”

With President-Elect Donald Trump set to return to office in 2025, some experts anticipate he will reimpose sanctions on the ICC, especially in light of the new Israeli warrants. His incoming pick for national security advisor, Representative Michael Waltz (R-FL), has already vowed a “strong response” to the Netanyahu warrant. There are some expectations of change in backing for the investigation into Putin. “Given Trump’s unusual affinity for Putin and stated desire to swiftly resolve the Ukraine conflict, a Trump administration could decide to end U.S. support to the ICC prosecution of Putin,” CFR Senior Fellow John B. Bellinger III writes.

What are other criticisms of the ICC?

Criticisms generally come from two directions. Some believe the court has too little authority, making it inefficient and ineffective at putting away war criminals. Others think it has too much prosecutorial power, threatening state sovereignty, and that it lacks sufficient due process and other checks against political bias. There has also been debate about the qualifications of judges. Meanwhile, some worry that the prospect of international justice prolongs conflicts by dissuading war criminals from surrendering, though the research on that question is inconclusive. Even advocates of the court have admitted it has shortcomings. Additionally, some cases have raised thorny legal and moral questions, such as the culpability of former child soldiers who were pressed into service and themselves victimized.

Several major powers echo U.S. complaints. China and India, in abstaining from the court, argue that it would infringe on their sovereignty. Analysts point out that both countries could face investigations if they joined. In 2016, Russia pulled its signature from the treaty after the court classified its 2014 annexation of Crimea as an occupation, and Moscow is unlikely to cooperate with the court’s war crimes investigation in Ukraine. In 2021, the Israeli government told the ICC that it would not recognize the court’s authority in investigating alleged war crimes within Palestinian territories. Netanyahu said in April 2024 that Israel “will never accept any attempt by the ICC to undermine its inherent right of self-defense.” Israel is not an ICC member, but any of the country’s leaders, if targeted by an ICC arrest warrant, could be subject to arrest if they travel to any ICC member country.

Many African nations have also accused the ICC of disproportionately focusing on the African continent. Of the court’s more than two dozen cases, most have dealt with alleged crimes in African states, although recent investigations into the Palestinian territories, Myanmar, Ukraine, and Venezuela seem to be broadening the court’s reach. In 2016, the African Union backed a proposal led by Kenya for a mass withdrawal, though the vote was largely symbolic.

Still, in Kenya and elsewhere, the court maintains broad public support. CFR’s Gavin writes that the opposition of many African leaders to the ICC “is not necessarily aligned with the desire of many Africans for fairness and accountability.”