ICC at the Crossroads the Future of Global Justice
Despite the International Criminal Court (ICC) issuing arrest warrants against several Israeli officials, including General Eitan Dangot and other military leaders, Israel continues to refuse to cooperate with the ICC and persists in violating Palestinian human rights without facing effective international accountability.
Israel's refusal to submit to trial before the ICC reflects the impunity enjoyed by certain major states in the international system, raising questions about the effectiveness of the Court and its ability to impose justice on everyone, regardless of political influence.
History of the International Criminal Court
The International Criminal Court (ICC) is one of the key international judicial bodies established under the Rome Statute in 1998, which entered into force in 2002. The court was created to prosecute individuals responsible for committing the most serious crimes under international law, such as war crimes, genocide, and crimes against humanity.
The establishment of the ICC came in response to the international community's need for an independent judicial mechanism to prosecute individuals involved in major crimes that threaten global peace and security. Since its inception, the court has played a role in holding perpetrators accountable for crimes committed in global conflicts, despite facing criticisms and objections from some major powers.
Under international law, all individuals, regardless of their nationality or location, are presumed to be accountable for the crimes they commit within the framework of international criminal justice. This reflects the principle of equality before the law, which embodies the global vision that international criminals must be held accountable.
Although the International Criminal Court (ICC) is considered an important step toward establishing justice in the international system, the court’s ability to effectively deliver justice is contingent upon the cooperation of the member states. In many cases, despite the court issuing arrest warrants against international leaders or military officials, such as Omar al-Bashir of Sudan, the execution of these warrants can be hindered if the concerned state refuses to cooperate with the court.
International Law Achieving the Principle of Accountability
The International Criminal Court and Historic Precedents
Among the notable legal precedents that marked a turning point in the history of the International Criminal Court (ICC) is the trial of Slobodan Milošević, the former president of Yugoslavia, who was charged with war crimes and genocide during the wars that erupted in the former Yugoslavia in the 1990s. The trial of Milošević was the first trial of a sitting head of state before an international court since the Nuremberg Trials after World War II. It was a significant legal event that contributed to the establishment of new international standards for prosecuting those responsible for international crimes.
Although Milošević died in 2006 before a final verdict could be delivered, his trial was a cornerstone in the development of international legal procedures and played a crucial role in enhancing the credibility of the International Criminal Court. It also included other trials of military leaders involved in similar crimes, such as those held by the International Criminal Tribunal for the former Yugoslavia (ICTY), which issued several judgments against senior officials in the Yugoslav regime.
The United States and Its Stance
on the International Criminal Court
The United States is one of the most prominent countries that refused to sign the Rome Statute, the treaty that established the International Criminal Court (ICC). This reflects the U.S.'s cautious and often adversarial stance toward the court. From the outset of the ICC's creation, Washington declared its opposition to subjecting its citizens, particularly military personnel, to trial before the court, arguing that such action would violate its national sovereignty.
This American refusal has had significant implications for the credibility and effectiveness of the ICC. The United States justified its stance with concerns about the potential for international accountability of its military personnel in the context of international conflicts in which the U.S. has been involved, such as the Iraq War and the Afghanistan War. U.S. officials, particularly under President George W. Bush in 2002, argued that the ICC could be used politically to target U.S. soldiers or leaders, potentially leading to politically motivated prosecutions.
The refusal to join the ICC was not only a unilateral decision by the United States but also had a ripple effect on other countries, particularly some of its allies, who hesitated to ratify the Rome Statute out of similar concerns about sovereignty and the potential for legal overreach by the court. For example, several NATO members, including Turkey and Israel, expressed reservations about joining the court, fearing that it could be used to hold their military leaders accountable for actions taken in armed conflicts.
In response to the court's establishment, the U.S. government took several steps to limit cooperation with the ICC. In addition to opposing the court's jurisdiction, the Bush administration negotiated bilateral immunity agreements with countries to prevent the extradition of American citizens to the ICC. These agreements, often referred to as "Article 98 agreements", were designed to shield U.S. personnel from prosecution by the court, undermining the court’s universal mandate of accountability.
The refusal to sign the Rome Statute has also impacted the United States' relationship with the ICC in other ways. The U.S. has been actively involved in undermining the court's authority in various international settings. For instance, the U.S. has consistently vetoed UN Security Council resolutions that would refer specific situations, such as those in Sudan and Libya, to the ICC for investigation. This political maneuvering has at times stymied the court’s efforts to bring justice to victims of genocide, war crimes, and crimes against humanity.
However, it is important to note that while the U.S. has rejected the ICC’s jurisdiction over its citizens, it has supported the court in certain cases. For example, the U.S. played a role in referring the Libyan crisis to the ICC after the fall of Muammar Gaddafi in 2011. Additionally, while the U.S. was opposed to the court’s jurisdiction over its own personnel, it has supported the prosecution of others involved in heinous crimes, particularly in the case of war crimes in Africa. The U.S. has also cooperated with the ICC when U.S. citizens are not involved, such as in the prosecution of war criminals in Uganda and Democratic Republic of Congo.
Other Countries' Refusal to Join the ICC
Apart from the United States, several other countries have declined to join the Rome Statute, citing concerns about the sovereignty and the potential for the ICC to interfere in their internal matters. Some of these nations, including China and India, have expressed reservations about the court’s ability to address their specific concerns, especially when it comes to issues of national security and internal conflicts.
China, a permanent member of the UN Security Council, has consistently refused to ratify the Rome Statute, mainly due to concerns over the potential for politically motivated prosecutions of its leaders or military officials. Similarly, India has rejected joining the court, with concerns about the ICC's potential interference in domestic matters, especially in relation to its complex internal conflicts, such as those in Kashmir.
In the Middle East, Israel has also refused to join the ICC, primarily due to concerns about the court's potential jurisdiction over its military operations in Palestinian territories. Despite facing multiple referrals from the United Nations and International Criminal Court investigations into possible war crimes in Gaza, Israel has repeatedly denied the court’s legitimacy, viewing it as a politically biased institution.
Russia is another major player that has declined to sign the Rome Statute, citing similar concerns about the court's potential to undermine national sovereignty. Russia’s refusal to ratify the statute has been particularly significant given its role in global politics and its military actions in regions such as Ukraine and Syria, where international scrutiny could potentially bring Russia under the ICC’s jurisdiction.
The Impact on the ICC’s Effectiveness
The decision by these major powers to remain outside the Rome Statute has created significant challenges for the ICC. Without the cooperation of the U.S. and other key nations, the court’s ability to bring perpetrators of international crimes to justice is severely limited. For example, the ICC faces substantial obstacles when attempting to arrest individuals in countries that refuse to cooperate, as is the case with Omar al-Bashir, the former president of Sudan, who was indicted for genocide and war crimes in Darfur but was never arrested due to the lack of cooperation from countries that were supposed to assist in his arrest.
Moreover, the refusal of these states to participate in the court has led to criticisms about the ICC's effectiveness and its perceived bias, especially when it is only able to prosecute individuals from countries that have signed the Rome Statute, most of which are in Africa. This has led to accusations that the ICC is disproportionately focused on crimes committed in developing countries, while failing to hold powerful nations accountable.
South Africa and the Case Against Israel
In 2024, South Africa filed a lawsuit before the International Criminal Court (ICC) against Israel, accusing it of committing genocide and crimes against humanity in Palestine. The lawsuit was based on allegations that the Israeli government was involved in policies of apartheid and racial discrimination against Palestinians, as well as crimes committed in Gaza and the West Bank.
This stance by South Africa represents a significant turning point in the contemporary context of the ICC and presents a major test for the international system and the Court's ability to hold a major state like Israel accountable, especially given the continued support from the United States for Israel, despite accusations of genocide. If the ICC takes this case seriously, it could set a historic precedent in the Court's trajectory and potentially reshape its future as an independent judicial mechanism.
Israel Beyond Accountability?
International Criminal Court
History, Establishment, and Contemporary Challenges
Challenges to the International System A Test for the Future
As global conflicts escalate, the failure of the international system to enforce International Criminal Court (ICC) rulings presents a genuine threat to international peace and security. From the Middle East to Africa, the rise in international crimes coupled with the growing culture of impunity signals an unsettling future for the global order.
The ICC, a cornerstone of international justice since its creation in 2002, faces an ever-tougher challenge in upholding accountability. The Court has witnessed increasing resistance from powerful nations—most notably the United States and Israel—which continue to defy its authority. This refusal to cooperate jeopardizes the Court’s credibility and, by extension, undermines the very principles of justice and fairness it was designed to protect.
International law relies on cooperation between nations, yet when major global powers choose to sidestep the rule of law, it sends a dangerous message to the world. If the ICC is unable to hold accountable those who commit the gravest crimes against humanity—whether in war-torn Syria, the Occupied Palestinian Territories, or conflict zones across Africa—the very foundation of international law begins to crumble.
Without the means to enforce its decisions, the Court risks becoming a paper tiger, unable to challenge the prevailing powers. This would not only threaten global stability, but also embolden perpetrators of war crimes and crimes against humanity, allowing them to operate with impunity.
The world stands at a crossroads: either we reinforce the efficacy of international justice, or we accept a future where global powers act above the law. The failure of the international system to hold violators accountable could mark the beginning of the end for the post-World War II system of justice, one built on the premise that no one, regardless of their political power or military strength, is above the law.
References
International Criminal Court - Official Website
icc-cpi.int
Rome Statute of the International Criminal Court, United Nations
UN Treaty Collection - Rome Statute
Slobodan Milosevic Trial, International Criminal Tribunal for the former Yugoslavia (ICTY)
ICTY Milosevic Trial Information
South Africa’s ICC Case against Israel, Al Jazeera
Al Jazeera News on South Africa’s ICC Case
U.S. Opposition to the International Criminal Court, U.S. State Department
State.gov: U.S. Opposition to the ICC