- The ICC is now in serious trouble, with rising problems both outside and inside the court
By Chris Stephen
The International Criminal Court (ICC) has dug a hole for itself by failing to get a grip on the war crimes it is supposed to police. Its growing list of enemies and skeptics may now fill it in, with the ICC still inside.
The beneficiaries might include indictees like Israel’s Prime Minister Benjamin Netanyahu, but it may also make life much easier for Vladimir Putin and others.
A series of evasions, questionable decisions, a poisonous working culture and flagging government enthusiasm for the court are now having a serious impact on its work, and may also call its future into question.
The latest setback — the decision not to punish Mongolia for hosting Putin in September — strikes at the very heart of the 22 year-old ICC. If signatory nations won’t enforce its warrants, it will simply become irrelevant.
The ICC requires that member states arrest suspects arriving on their territory. The court has no police force of its own, and its jurisdiction is limited to its 124 member states.
Yet in September, Mongolia, a member state, invited Putin for an official visit despite last year’s ICC indictment for crimes in Ukraine.
A month later, ICC judges ruled Mongolia had broken the rules, something confirmed in November by appeals judges. But only the court’s member states, collectively, can punish a member for this rule breach and they failed to do so in the court’s annual meeting in The Hague from December 2-7. Days of frantic debate produced only deadlock.
There was a brutal logic to this decision, a logic created by the ICC itself. The court and its member nations knew they could hardly punish Mongolia, having previously allowed South Africa to commit the same offence.
In 2015, Pretoria hosted Sudan’s then-president, Omar al Bashir, who had been indicted by the ICC for genocide.
These days, South Africa describes itself as a fan of international accountability, and is pursuing Israel on charges of genocide at the UN’s court, the International Court of Justice. But when it came to al-Bashir, Pretoria was sympathetic. When the ICC called for his arrest, it allowed al-Bashir to fly home. When the ICC complained, South Africa quit the court. The African Union then passed a non-binding resolution recommending the rest of the continent do the same. In open panic, ICC judges later decided not to punish South Africa, and in return South Africa cancelled its plans to quit.
The lesson has been learned and the precedent established. ICC member states not only refused to punish Mongolia, they also sought to bury the fact. The most important decision of their conference was hidden in a one-line item in their end-of-conference report. It records that the Assembly of States Parties “takes note of the 24 October 2024 finding on the non-compliance by Mongolia, and the 29 November 2024 decision of the Pre-Trial Chamber II in the situation in Ukraine.’
The lesson for ICC member states is clear. Each is free to give Putin immunity. Earlier this year Mexico and South Africa both invited the Russian president to summits, only changing their minds after complaints by the court. Now they are free to renew those invitations in the near-certain knowledge that it will be penalty-free.
This represents a bitter blow to Ukraine, which had put great faith in the ICC. From the start of Russia’s invasion, the court deployed 42 investigators, a record number, to Ukraine to sift evidence. Chief prosecutor Karim Khan staged a dramatic battlefield visit to Bucha, near Kyiv, three months into the war, promising firm action: “We have to pierce the fog of war. The law needs to be mobilized and sent into battle to protect civilians.”
Ukraine understood at the time that Khan could not promise trials. Russia is not a member of the ICC, so not obliged to hand over Putin. But his indictment would mean he was barred from ICC members, who constitute more than two thirds of all the nations in the world.
Now that promise lies in ruins, because arrest immunity is the new mood among ICC nations. And not just for Russia. In November, France led a pack of Italy, Hungary and Greece in giving this immunity to Netanyahu, indicted in November for alleged war crimes in Gaza.
Unlike Mongolia, Paris used a legal loophole to do it. Article 98 of the ICC Statute allows member states to give arrest immunity to any country they choose. The article was originally devised so countries joining the court would not have to break existing treaty commitments. Now it has morphed into a get-out-of-jail-free card that any state can use to give immunity to any other. The only surprise was that Mongolia did not itself declare an Article 98 exception to cover itself for Putin’s visit.
Meanwhile, the incoming Trump administration is threatening sanctions against ICC members refusing to give Israel’s leader the same kind of Article 98 immunity already declared by Paris.
Court officials know these immunities represent a mortal threat. If every new indictment is met with a flood of Article 98 declarations, the court’s power will drain away. Opening last week’s conference, its Japanese president, Judge Tomoko Akane launched a blistering attack on America’s sanctions threat: “The court is being threatened with draconian economic sanctions by another permanent member of the Security Council [the US] as if it was a terrorist organization.”
But her stirring words are undercut by the serial failures of the court. Astonishingly, in its 22 years of operation, and with more than $3bn spent, the ICC has jailed just six war criminals.
Along the way have come blunders, high profile acquittals and scandal. Khan is being investigated for allegations of sexual harassment, which he denies. But the case has drawn attention to high levels of abuse, bullying and sexual harassment in the court itself uncovered four years ago in a report by the acclaimed jurist Richard Goldstone. He described a “culture of fear” among junior staff frightened of some of their bosses.
Meanwhile, the court is running out of cases. More than 30 suspects remain at large, but no new trials are scheduled for 2025. When the handful of existing cases finish next summer, the jail will be empty, and the courtroom too.
For now, its Ukraine investigations will go on. But Kyiv will come to realize these have little point because the ICC will have little realistic chance of bringing anyone to trial. Ukraine will need to find another route to hold Russian war crimes to account.
For the Kremlin, it now appears to the only effect of the indictments will be minor inconvenience to its future travel plans.
Chris Stephen is a former war correspondent with The Guardian and other media. He is author of The Future of War Crimes Justice, (Melville House, London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, London and New York).
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America