*/
The International Criminal Court (ICC) is in trouble, and its big problem isn’t Trump’s sanctions, missile threats from the Kremlin or its dearth of cases, but a number.
Six is the total number of war criminals jailed by the ICC, after 22 years of operations and $3 billion spent. This return compares poorly to the largest of the United Nations (UN) war crimes courts that preceded it. In a similar time span, with similar budget, the International Criminal Tribunal for Former Yugoslavia, also in The Hague, convicted 91. Such a paltry return, in a world beset by conflict, has left many wondering if the court is worth saving. Or, indeed, what its 900 staff do all day.
Certainly, it is under attack as never before. President Donald Trump has unleashed a barrage of measures that threaten to cripple the court’s abilities. Key staff have been sanctioned, with more sanctions likely against banks which process its finances and tech companies that provide its software.
A second problem are the growing number of countries giving immunities to ICC suspects. Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant, indicted over the Gaza war, have been given arrest immunity by states including France, Hungary, Italy, Germany, Poland, and Romania, with Hungary opting also to quit the court. More states, including Britain, have carefully left the door open to giving that same immunity.
These immunities are not illegal. Indeed, they allowed under court rules, specifically Article 98. This permits any of the 125 ICC member states to give immunity to officials of any other state, simply by declaring it. Originally created so governments did not have to break existing treaties to join the court, Article 98 has morphed into a Get Out Of Jail Free Card. And not just for Israel. Last year Mongolia gave arrest immunity for Vladimir Putin and in February Italy did the same for a Libyan general.
Arrest immunity is not new. South Africa pioneered, if that is the word, the practice in 2017. It became the most prominent of half a dozen countries giving immunity to Sudan’s then-president Omar al Bashir, indicted for genocide, so he could make a state visit. European Union states already give arrest immunity to American officials, a decision dating from 2003 when the Bush administration demanded it.
What makes arrest immunity potentially fatal to the ICC is because it has no police force of its own. Former UN war crimes prosecutor Richard Goldstone once said nation states are the ‘arms and legs’ of a war crimes court, because only they can make the arrests. Without that cooperation, the ICC will have no cases to try.
That is already very nearly the case. The ICC has more than 30 suspects at large, but none are being arrested. Only one new case is before the judges, albeit a significant one, after the arrest of former Philippines president Rodrigo Duterte. As a result, a court set up to police two-thirds of the world is these days often empty, giving it a Ghost-Town feel.
This is very different to the optimism when it first opened. The court was inspired by the successes of temporary UN war crimes tribunals. and its creation followed a simple logic: The UN at the time was like a town council, creating a new fire engine every time there was a fire. Surely, then, it made more sense for a town to have a permanent fire engine always on standby. Opposition from states including China, Russia and the United States meant the ICC was set up with no connection to the UN, but in the beginning countries flocked to join.
However, failures dogged it from the start. High-profile trials against former leaders of Kenya and Ivory Coast collapsed, while appeals judges castigated prosecutors in other cases for concealing evidence, failing to protect witnesses and relying on unreliable third-party researchers.
Erratic prosecutors have concentrated on some cases while ignoring others. While high-profile wars in Gaza and Ukraine receive priority, Afghanistan has been under investigation for 21 years, yet no indictments have ever been issued. And then there is the glacial pace of proceedings. Former Congolese foreign minister Jean-Pierre Bemba spent a decade on trial in detention before being acquitted, with appeals judges roasting prosecutors and trial judges for making basic procedural errors. When the Israeli and Hamas indictments were issued, critics pointed to the appearance of a conflict of interest, because one of the confirming judges had worked in the prosecution office until 12 months before.
In 2019 an independent commission, chaired by Goldstone, criticised the court for having judges appointed for political reasons by member states, saying some were not up to the job. More shockingly, it uncovered high levels of bullying and sexual abuse directed against junior staff, reporting a ‘culture of fear’.
These revelations are why sexual harassment allegations against chief prosecutor Karim Khan, reported by Associated Press, Reuters and the Guardian, have set teeth on edge. Khan has denied the allegations, now being investigated by a UN agency invited by the ICC to ensure independence. These accusations have done nothing to burnish the court’s reputation.
Speaking at the International Bar Association’s war crimes committee in The Hague this month, war crimes expert Pierre Hazan, author of Negotiating with the Devil, explained the dismay felt by many over the court’s failures:
‘The ICC was not able to live up to its expectations, the enthusiasm vanished. A lot of people were thinking “our national laws are not doing the job, the ICC will protect us”, and honestly it didn’t happen. That created a feeling of frustration and distrust.’
In fairness to the ICC, it struggles with harsh limitations. For one thing, it is not truly a world court, but more like a club. Jurisdiction is mostly limited to member states, with many war zones out of reach. Secondly, war crimes justice is expensive, and the prosecution’s (US)$90million budget is inadequate for the 17 countries it is tasked to investigate.
But a comparison with the former UN courts is instructive, because of a stark difference in leadership.
The UN Security Council is not famous for its commitment to human rights. However, when it created its war crimes tribunals it was determined to make them work, knowing that otherwise its prestige would suffer. As a result, judges and prosecutors of UN tribunals were subject to harsh grillings at the Security Council to keep them on their toes. By contrast, most of the states that form the ICC, and who are collectively the court’s boss, take no interest in proceedings. There is little pressure from them on court staff to do better. Without a change of heart by those states, starting with a demand for more transparency, the ICC seems destined to wither on the vine.
Equally problematic, but for different reasons, is the new Special Tribunal for the Crime of Aggression against Ukraine. Set up in May by the Council of Europe, it aims to complement the ICC. While the ICC investigates war crimes in Ukraine, the tribunal examines the legality of the war itself.
However, what appears legally simple is politically complex. The Crime of Aggression applies to any war that breaches the UN Charter. This forbids war unless it is defensive or authorised by the UN Security Council. Russia’s invasion of Ukraine is neither, which should make indictments straightforward. But plenty of other wars fall under the same category, notably the US-led invasion of Iraq in 2003 and a string of recent conflicts in Africa.
For this reason, the bulk of the world’s nations have shunned the tribunal. It is not recognised in most of Africa, Asia and South America, nor by the United States. Even the Council of Europe’s 46 member-states support it only on the understanding it is restricted to Ukraine. In effect, they have created a law that does not apply to themselves. With no obvious means to arrest Russia’s high command, this tribunal seems destined to become the court that never holds a trial.
This is not to say war crimes justice itself is dead. As international courts have waned, so national courts have waxed. Around the world, prosecutions under Universal Jurisdiction grow more common, with the United States having started its first such case this month, against a Gambian accused of torture in his home country. War crimes justice is here to stay, but not necessarily at The Hague.
Chris Stephen is a former war correspondent for The Guardian and author of The Future of War Crimes Justice, published in 2024 by Melville House (London and New York).
The International Criminal Court (ICC) is in trouble, and its big problem isn’t Trump’s sanctions, missile threats from the Kremlin or its dearth of cases, but a number.
Six is the total number of war criminals jailed by the ICC, after 22 years of operations and $3 billion spent. This return compares poorly to the largest of the United Nations (UN) war crimes courts that preceded it. In a similar time span, with similar budget, the International Criminal Tribunal for Former Yugoslavia, also in The Hague, convicted 91. Such a paltry return, in a world beset by conflict, has left many wondering if the court is worth saving. Or, indeed, what its 900 staff do all day.
Certainly, it is under attack as never before. President Donald Trump has unleashed a barrage of measures that threaten to cripple the court’s abilities. Key staff have been sanctioned, with more sanctions likely against banks which process its finances and tech companies that provide its software.
A second problem are the growing number of countries giving immunities to ICC suspects. Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant, indicted over the Gaza war, have been given arrest immunity by states including France, Hungary, Italy, Germany, Poland, and Romania, with Hungary opting also to quit the court. More states, including Britain, have carefully left the door open to giving that same immunity.
These immunities are not illegal. Indeed, they allowed under court rules, specifically Article 98. This permits any of the 125 ICC member states to give immunity to officials of any other state, simply by declaring it. Originally created so governments did not have to break existing treaties to join the court, Article 98 has morphed into a Get Out Of Jail Free Card. And not just for Israel. Last year Mongolia gave arrest immunity for Vladimir Putin and in February Italy did the same for a Libyan general.
Arrest immunity is not new. South Africa pioneered, if that is the word, the practice in 2017. It became the most prominent of half a dozen countries giving immunity to Sudan’s then-president Omar al Bashir, indicted for genocide, so he could make a state visit. European Union states already give arrest immunity to American officials, a decision dating from 2003 when the Bush administration demanded it.
What makes arrest immunity potentially fatal to the ICC is because it has no police force of its own. Former UN war crimes prosecutor Richard Goldstone once said nation states are the ‘arms and legs’ of a war crimes court, because only they can make the arrests. Without that cooperation, the ICC will have no cases to try.
That is already very nearly the case. The ICC has more than 30 suspects at large, but none are being arrested. Only one new case is before the judges, albeit a significant one, after the arrest of former Philippines president Rodrigo Duterte. As a result, a court set up to police two-thirds of the world is these days often empty, giving it a Ghost-Town feel.
This is very different to the optimism when it first opened. The court was inspired by the successes of temporary UN war crimes tribunals. and its creation followed a simple logic: The UN at the time was like a town council, creating a new fire engine every time there was a fire. Surely, then, it made more sense for a town to have a permanent fire engine always on standby. Opposition from states including China, Russia and the United States meant the ICC was set up with no connection to the UN, but in the beginning countries flocked to join.
However, failures dogged it from the start. High-profile trials against former leaders of Kenya and Ivory Coast collapsed, while appeals judges castigated prosecutors in other cases for concealing evidence, failing to protect witnesses and relying on unreliable third-party researchers.
Erratic prosecutors have concentrated on some cases while ignoring others. While high-profile wars in Gaza and Ukraine receive priority, Afghanistan has been under investigation for 21 years, yet no indictments have ever been issued. And then there is the glacial pace of proceedings. Former Congolese foreign minister Jean-Pierre Bemba spent a decade on trial in detention before being acquitted, with appeals judges roasting prosecutors and trial judges for making basic procedural errors. When the Israeli and Hamas indictments were issued, critics pointed to the appearance of a conflict of interest, because one of the confirming judges had worked in the prosecution office until 12 months before.
In 2019 an independent commission, chaired by Goldstone, criticised the court for having judges appointed for political reasons by member states, saying some were not up to the job. More shockingly, it uncovered high levels of bullying and sexual abuse directed against junior staff, reporting a ‘culture of fear’.
These revelations are why sexual harassment allegations against chief prosecutor Karim Khan, reported by Associated Press, Reuters and the Guardian, have set teeth on edge. Khan has denied the allegations, now being investigated by a UN agency invited by the ICC to ensure independence. These accusations have done nothing to burnish the court’s reputation.
Speaking at the International Bar Association’s war crimes committee in The Hague this month, war crimes expert Pierre Hazan, author of Negotiating with the Devil, explained the dismay felt by many over the court’s failures:
‘The ICC was not able to live up to its expectations, the enthusiasm vanished. A lot of people were thinking “our national laws are not doing the job, the ICC will protect us”, and honestly it didn’t happen. That created a feeling of frustration and distrust.’
In fairness to the ICC, it struggles with harsh limitations. For one thing, it is not truly a world court, but more like a club. Jurisdiction is mostly limited to member states, with many war zones out of reach. Secondly, war crimes justice is expensive, and the prosecution’s (US)$90million budget is inadequate for the 17 countries it is tasked to investigate.
But a comparison with the former UN courts is instructive, because of a stark difference in leadership.
The UN Security Council is not famous for its commitment to human rights. However, when it created its war crimes tribunals it was determined to make them work, knowing that otherwise its prestige would suffer. As a result, judges and prosecutors of UN tribunals were subject to harsh grillings at the Security Council to keep them on their toes. By contrast, most of the states that form the ICC, and who are collectively the court’s boss, take no interest in proceedings. There is little pressure from them on court staff to do better. Without a change of heart by those states, starting with a demand for more transparency, the ICC seems destined to wither on the vine.
Equally problematic, but for different reasons, is the new Special Tribunal for the Crime of Aggression against Ukraine. Set up in May by the Council of Europe, it aims to complement the ICC. While the ICC investigates war crimes in Ukraine, the tribunal examines the legality of the war itself.
However, what appears legally simple is politically complex. The Crime of Aggression applies to any war that breaches the UN Charter. This forbids war unless it is defensive or authorised by the UN Security Council. Russia’s invasion of Ukraine is neither, which should make indictments straightforward. But plenty of other wars fall under the same category, notably the US-led invasion of Iraq in 2003 and a string of recent conflicts in Africa.
For this reason, the bulk of the world’s nations have shunned the tribunal. It is not recognised in most of Africa, Asia and South America, nor by the United States. Even the Council of Europe’s 46 member-states support it only on the understanding it is restricted to Ukraine. In effect, they have created a law that does not apply to themselves. With no obvious means to arrest Russia’s high command, this tribunal seems destined to become the court that never holds a trial.
This is not to say war crimes justice itself is dead. As international courts have waned, so national courts have waxed. Around the world, prosecutions under Universal Jurisdiction grow more common, with the United States having started its first such case this month, against a Gambian accused of torture in his home country. War crimes justice is here to stay, but not necessarily at The Hague.
Chair of the Bar sets out a busy calendar for the rest of the year
Why Virtual Assistants Can Meet the Legal Profession’s Exacting Standards
By Louise Crush of Westgate Wealth Management
Examined by Marie Law, Director of Toxicology at AlphaBiolabs
Time is precious for barristers. Every moment spent chasing paperwork, organising diaries, or managing admin is time taken away from what matters most: preparation, advocacy and your clients. That’s where Eden Assistants step in
AlphaBiolabs has announced its latest Giving Back donation to RAY Ceredigion, a grassroots West Wales charity that provides play, learning and community opportunities for families across Ceredigion County
Despite increased awareness, why are AI hallucinations continuing to infiltrate court cases at an alarming rate? Matthew Lee investigates
The proscribing of Palestine Action under the Terrorism Act is an assault on the English language and on civil liberties, argues Paul Harris SC, founder of the Bar Human Rights Committee
Come in with your eyes open, but don’t let fear cloud the prospect. A view from practice by John Dove
Anon Academic explains why he’s leaving the world of English literature for the Bar – after all, the two are not as far apart as they may first seem...
Review by Stephen Cragg KC
