Reflections on the state of international criminal justice
Today, July 17, we celebrate International Criminal Justice Day, a date all the more relevant as the world faces turbulent times.
This day commemorates the historic adoption of the Statute of the International Criminal Court (ICC) by the international community at a diplomatic conference in Rome on July 17, 1998.
It marked the end of a long road that began in the aftermath of the end of World War II with the establishment of the International Military Tribunals in Nuremberg and Tokyo. With the aim of preventing the terrible atrocities of the past, major efforts were made to address the growing impunity for violations of human rights, international humanitarian law and international criminal law.
It also ushered in a new era in the fight against impunity in which the ICC was presented as an essential means of promoting respect for international humanitarian law and human rights, thereby contributing to freedom, security, justice and the rule of law, as well as to the prevention of armed conflict, the preservation of peace and the strengthening of international security, and the promotion of reconciliation and post-conflict peacebuilding with a view to achieving sustainable peace, in accordance with the purposes and principles of the Charter of the United Nations.
The Court is an independent body that does not seek to replace domestic courts, but is complementary to them and can only intervene in those exceptional cases where, for various reasons, States are unable or unwilling to try those responsible for those crimes defined as core crimes under international law: genocide, crimes against humanity, war crimes and, since 2017, the crime of aggression, which is nevertheless subject to a special and restrictive jurisdictional regime.
Today, 124 countries are parties to the Rome Statute. Some forty countries have 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 more signed the statute, but their legislatures never ratified it. They 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 previous year.
Two countries have withdrawn from the ICC. Burundi withdrew in 2017, following the court’s decision to investigate the government’s crackdown on opposition protests. Philippine President Rodrigo Duterte withdrew in 2019 after the court launched an investigation into his government’s war on drugs, arguing that domestic courts are sufficient to enforce the rule of law. The Gambia and South Africa notified the United Nations in 2016 of their intention to leave the treaty, but later backtracked in the face of political turmoil and legal challenges. South Africa, in particular, has expressed frustration with what its leaders say are overbearing Western interests in enforcing international law.
In the little more than 20 years since it became operational in 2002, the ICC has indicted more than fifty individuals, mostly from African countries. Twenty-one people have been arrested in The Hague, ten have been convicted of crimes and four have been acquitted. The governments of Uganda, the Central African Republic, the Democratic Republic of Congo and Mali have referred cases related to the civil wars and other conflicts that have plagued those countries.
Despite this progress, the ICC has repeatedly been criticized for the lengthy duration of the proceedings, suspicions of double standards and post-colonial action by focusing exclusively on situations on the African continent. Moreover, relevant structural challenges, including achieving universality, strengthening State cooperation, protecting the Court’s neutrality and independence, and improving its efficiency in the face of an impressive workload, have affected its performance.
This scenario has contributed to seriously undermine its legitimacy. However, the dramatic events of the wars in Ukraine and Palestine have brought international criminal justice back to the center of public debate.
On the one hand, global attention to accountability in Ukraine has led to two major ICC arrest warrants, including one against Russian President Vladimir Putin, as well as innovations in ways to support domestic proceedings in Ukraine and through other national courts. On the other hand, the decision last May 2024 by ICC Chief Prosecutor Karim Khan to request arrest warrants for key leaders involved in the Gaza conflict, including Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yov Galant, has triggered statements of support for the international judicial body in the face of criticism from some states, including the United States.
Despite progress, many challenges remain. Impunity has been fostered by the erosion of national and international accountability mechanisms, the persecution or criminalization of justice actors and human rights defenders, as well as weak political will and inadequate laws.
The international criminal justice system has been underutilized. Similarly, too little use is made of other tools. We recall that international justice is not limited to the ICC. National courts can also take action when crimes are committed elsewhere, using “Universal Jurisdiction”.
In short, ICC States Parties are not fulfilling their primary obligation to investigate and prosecute international crimes.
We therefore join in the commemoration of this international day, calling to reiterate our joint commitment to universal justice as a tool to fight impunity.
