The Role of the International Criminal Court
Backgrounder

The Role of the International Criminal Court

The ICC was created to bring justice to the world’s worst war criminals, but debate over the court still rages.
Judges are pictured in the courtroom during the trial of Bosco Ntaganda.
Judges are pictured in the courtroom during the trial of Bosco Ntaganda. Bas Czerwinski/Reuters
Summary
  • The ICC seeks to investigate and prosecute those responsible for grave offenses such as genocide and war crimes.
  • Dozens of countries are not ICC members, including China, India, Russia, and the United States.
  • The court has angered nonmembers by launching probes into possible war crimes in Afghanistan, the Palestinian territories, and Ukraine.

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 considerable setbacks. It has been unable to gain the support of major powers, including the United States, China, and Russia, who say it undermines national sovereignty. Two countries have withdrawn from the court, and many African governments complain that the court has singled out Africa. 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.

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.

More on:

International Criminal Court

Courts and Tribunals

Genocide and Mass Atrocities

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. As CFR’s Michelle Gavin points out, African countries make up the largest bloc of ICC members. 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 123 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. Several dozen others signed the statute, but their legislatures never ratified it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, and the United States.

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.

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.

More on:

International Criminal Court

Courts and Tribunals

Genocide and Mass Atrocities

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;
  • war crimes, or grave breaches of the laws of war, which include the Geneva Conventions’ prohibitions on torture, the use of child soldiers, and attacks on civilian targets, such as hospitals or schools;
  • crimes against humanity, or violations committed as part of large-scale attacks against civilian populations, including murder, rape, imprisonment, slavery, and torture; and
  • crimes of aggression, or the use or threat of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or violations of the UN Charter.

The court can open an investigation into possible crimes in one of three ways: a member country can refer a situation within its own territory to the court; the UN Security Council can refer a situation; or the prosecutor can launch an investigation into a member state 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 decides whether a case should be brought to trial. Defendants may 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 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 that in Rwanda.

How is it funded?

In 2021, the ICC’s annual budget stood at roughly $170 million [PDF]. The vast majority of that funding 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 2020, the largest contributions [PDF] came from Japan, Germany, France, and the United Kingdom. Some countries, notably 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. Some governments and transnational organizations also offer voluntary contributions.

Some analysts have criticized the ICC as too expensive. Others counter that the court’s cost effectiveness cannot be based solely on the number of cases it tries or convictions it secures.

What cases has the ICC opened?

The ICC has indicted more than forty individuals, all from African countries. Seventeen people have been detained at 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.

The ICC has indicted more than forty individuals, all from African countries.

The UN Security Council made its first referral in 2005, for alleged crimes in the Darfur region of Sudan. This was followed in 2011 by a referral for Libya.

In addition, the prosecutor’s office opened investigations proprio motu in Kenya in 2010, the Ivory Coast in 2011, Georgia in 2016, Burundi in 2017, Bangladesh and Myanmar in 2019, Afghanistan in 2020, and the Palestinian territories and the Philippines in 2021.

Most recently, in 2022, the court launched an investigation into Russia’s invasion of Ukraine after receiving a referral from more than forty member states. Though Ukraine is not an ICC member, it accepted the court’s jurisdiction for alleged crimes on its territory going back to 2013.

Here are a few of the court’s high-profile defendants:

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.

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 in negotiations over the Rome Statute. However, the administration ultimately came out against the treaty over concerns that the prosecutor would have unchecked power and could subject U.S. soldiers and officials to politicized prosecutions. President Clinton later authorized U.S. officials to sign the 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.

A major fear was that the ICC would prosecute U.S. soldiers operating in combat zones. In 2002, Congress passed the American Service-Members’ Protection Act, which required the government to cut off financial assistance to ICC members that would not agree not 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.

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 signed an executive order declaring a national emergency over the investigation and imposing 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’s administration lifted the Trump-era sanctions and visa restrictions, and Bensouda noted that the two sides were working on a “reset.” Still, his administration has expressed concern over the investigation into the Palestinian territories, which the ICC ruled in February 2021 it has jurisdiction over, despite Israel’s opposition.

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 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 that 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.

Many African nations have accused the ICC of disproportionately targeting the African continent. Of the court’s more than two dozen cases, all have dealt with alleged crimes in African states. 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.”

Recommended Resources

In 2017, Foreign Affairs interviewed Chief Prosecutor Bensouda about criticisms levied against the court.

The Just Security blog outlines how to build a more balanced U.S. approach to the ICC.

This 2014 roundup from the New York Times laid out expert arguments for and against the court.

The Guardian looks at potential alternatives to the ICC, including an African human rights court.

CFR’s David J. Scheffer explains what to know about the ICC’s probe into atrocities in Afghanistan and in Ukraine.

Foreign Policy’s Colum Lynch examines the implications of U.S. support for the ICC investigation in Ukraine.

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Antonio Barreras Lozano, Jessica Moss, and Mia Speier contributed to this Backgrounder. Will Merrow and Michael Bricknell created the graphics.

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