The International Criminal Court — Holding Power Accountable Across Borders

The idea that individuals — not just states — can be held criminally responsible under international law is younger than most people's grandparents.

Before World War II, international law governed relations between states. If a government committed atrocities against its own people, there was no legal framework to intervene. The Holocaust, the Armenian Genocide, the Belgian atrocities in the Congo — these events generated outrage but not prosecution. Sovereignty was the firewall.

Nuremberg (1945-1946) broke the firewall. The International Military Tribunal at Nuremberg prosecuted 24 major Nazi leaders for crimes against peace, war crimes, and crimes against humanity. The legal innovation was enormous: for the first time, individuals were held personally liable for state-sponsored atrocities. The defense of "I was following orders" was explicitly rejected. The defense of "I was exercising sovereign authority" was explicitly rejected.

The Nuremberg Principles, codified by the International Law Commission in 1950, established that individuals have duties under international law that override national obligations. This was the conceptual seed.

The Cold War freeze. For the next forty-five years, that seed sat dormant. The US and USSR used the UN Security Council veto to block any international criminal accountability that threatened their allies. Pol Pot's genocide in Cambodia, Saddam Hussein's gassing of the Kurds, Idi Amin's reign of terror in Uganda — all proceeded without international criminal prosecution. Sovereignty remained the effective shield.

The ad hoc tribunals (1990s). The thaw came with Yugoslavia and Rwanda. The International Criminal Tribunal for the former Yugoslavia (ICTY, established 1993) and the International Criminal Tribunal for Rwanda (ICTR, established 1994) were created by the UN Security Council to prosecute genocide, crimes against humanity, and war crimes in those specific conflicts. They were limited in jurisdiction and temporary in mandate, but they reestablished a critical precedent: individuals, including heads of state, can face international criminal prosecution.

Slobodan Milosevic became the first sitting head of state to be tried by an international tribunal. He died during trial, but the precedent was set.

The Rome Statute (1998). After decades of advocacy — much of it driven by civil society organizations and smaller nations — 120 states voted to adopt the Rome Statute establishing the International Criminal Court. It entered into force on July 1, 2002. Unlike Nuremberg and the ad hoc tribunals, the ICC is permanent, independent, and not limited to a specific conflict. Its jurisdiction covers genocide, crimes against humanity, war crimes, and the crime of aggression.

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The ICC operates on the principle of complementarity. It does not replace national courts — it steps in only when national courts are unwilling or unable to genuinely investigate and prosecute. This means the ICC is a court of last resort. If a country prosecutes its own war criminals credibly, the ICC has no jurisdiction.

Cases can reach the ICC through three paths:

1. State referral — a member state refers a situation within its territory or involving its nationals. 2. UN Security Council referral — the Council can refer situations even in non-member states (as it did with Sudan and Libya). 3. Prosecutor's initiative — the ICC Prosecutor can open investigations independently, subject to judicial authorization.

The court has no police force. It relies entirely on state cooperation to arrest suspects, gather evidence, and enforce sentences. This is its most fundamental structural weakness.

As of 2025, the ICC has issued arrest warrants for over 40 individuals. It has secured a handful of convictions. It has acquitted several defendants. Many warrant subjects remain at large, including some who travel freely in non-member states.

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The most damaging critique of the ICC is that it has disproportionately targeted African leaders and situations while ignoring or being structurally unable to address comparable crimes by powerful states.

For its first two decades, every situation under active investigation was in Africa. This wasn't entirely the ICC's choice — several African states referred their own situations to the court, and the Security Council referred Sudan and Libya. But the pattern was real, and the perception was devastating. The African Union formally called on member states to withdraw from the ICC, calling it a tool of Western neocolonialism. Burundi and the Philippines actually withdrew.

Meanwhile, credible allegations of war crimes by US forces in Afghanistan, by Russian forces in Chechnya and Syria, by Israeli forces in Palestine, and by Chinese forces in Xinjiang have faced minimal or no ICC action. The reasons are structural: the US, Russia, and China are not ICC members and can veto Security Council referrals. Israel is not a member. The court can only prosecute effectively where it has jurisdiction and where states cooperate.

This creates a two-tier system: the powerful are largely beyond reach, while the less powerful are vulnerable. That's not justice. It's a facsimile of justice that reinforces existing power dynamics.

The ICC's defenders argue — with some merit — that imperfect justice is better than no justice, that the court is constrained by the system states created, and that accountability for some atrocities is better than accountability for none. They also point to the court's expanding reach, including warrant issuances related to situations involving more powerful states in recent years.

Both sides are right. That's the uncomfortable position.

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Strip away the politics and the imperfections, and the ICC represents something that has never existed before in the history of the species: a standing institution that operationalizes the idea that being human creates rights that no government can overrule.

The Geneva Conventions say there are things you cannot do to people in war. The Genocide Convention says there are things you cannot do to a group of people, period. The Rome Statute says there is a court where those violations can be prosecuted, regardless of the nationality of the perpetrator or the victim.

This is Law 1 as case law. It is the species telling itself: there are minimum standards for how you treat a person, and those standards exist because the person is human, not because they hold the right passport.

Every conviction at the ICC — even the small number so far — establishes a precedent that radiates outward. It tells future leaders that there is at least a mechanism, however imperfect, that may catch up with them. Deterrence is impossible to measure precisely, but the scholars who study it (like Hyeran Jo and Beth Simmons at Harvard) have found evidence that ICC involvement in a region correlates with reduced civilian targeting in conflicts. The mechanism isn't perfect, but it isn't nothing.

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For the ICC to become what it claims to be — a genuine institution of universal accountability — several things would need to change.

Universal membership. The US, Russia, China, India, and every other holdout would need to join. This is politically implausible in the near term, but the principled position is clear: if you believe in the rule of law domestically, you should believe in it internationally. There is no coherent moral argument for exempting yourself from the same accountability you demand of others.

Independent enforcement. The court needs its own capacity to execute warrants, perhaps through a standing international arrest force or binding cooperation agreements. Relying on the goodwill of states whose leaders may be the next defendants is a structural absurdity.

Expanded resources. The ICC's annual budget is approximately 170 million euros — less than the annual budget of a mid-sized American police department. It is expected to investigate and prosecute the worst crimes in human history on a shoestring. If the institution matters, it needs real funding.

Equity in prosecution. The court must demonstrate that it can and will pursue cases against nationals of powerful states. The principle of complementarity provides cover for inaction — if a country claims to be investigating itself, the ICC defers. But self-investigation by powerful states often amounts to self-exoneration. The court needs the political courage to push back.

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Pick three major atrocities from the last fifty years — one in the Global North, one in the Global South, one in a current conflict zone. For each, research:

1. Were individuals criminally prosecuted for the atrocity? 2. If so, by whom? Domestic courts? International tribunals? The ICC? 3. If not, what structural factors prevented prosecution?

Map the pattern. Notice who gets prosecuted and who doesn't. Then ask: what would a system look like where the answer to "will this person face justice?" depends on what they did, not who they are?

That's the system the ICC is trying to be. The gap between aspiration and reality is the work.

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- Philippe Sands, East West Street: On the Origins of "Genocide" and "Crimes Against Humanity" (2016) - Benjamin Ferencz, Planethood (1988) — Ferencz was a prosecutor at Nuremberg and spent his life advocating for the ICC - William Schabas, An Introduction to the International Criminal Court (6th ed., 2020) - Fatou Bensouda, various speeches and writings as ICC Prosecutor (2012-2021) - Makau Mutua, "Savages, Victims, and Saviors: The Metaphor of Human Rights," Harvard International Law Journal (2001)