It is undoubtedly challenging to deny any court’s political character, particularly the ICC. However, it is necessary to understand in what sense this institution can be defined as political and whether the ICC’s political character necessarily affects its impartiality and, therefore, its legitimacy.

The Al Mahdi case is significant in this respect;9 this case was the first and, for the time being, only conviction by the ICC for the war crime of:

[I]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected provided they are not military objectives.10

Analyzing this trial can help fill with meaning an adjective, political, with multiple declinations.

Through the Al Mahdi case, this comment explains how the ICC acts as a political actor while not compromising its judicial character. In Part II, I focus on the political dimension of the courts. In Part III, I provide an overview of the Al Mahdi trial, focusing on the relevant normative framework, the facts of the case, the procedural history, and its significance. In Part IV, I provide an overview of the criticisms directed at the ICC concerning that case and then attempt to respond. In Part V, I focus on the Ntaganda case,11 where, at least on the surface, the ICC has disavowed itself by changing the approach taken in the Al Mahdi case. In Part VI, I conclude that the political dimension of the Al Mahdi trial is compatible with its jurisdictional nature and, consequently, the political component of the ICC does not undermine its legitimacy.

II. Courts as Political Institutions

The ICC’s conception laid its foundation in legalistic ideology, which, to use Shklar’s words, “is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.”12

According to the legalist school, “politics is regarded not only as something apart from law, but as inferior to law. Law aims at justice, while politics look only to expediency. The former is neutral and objective, the latter the uncontrolled child of competing interests and ideologies.”13

The position outlined above is based on a reductive notion of politics, a vague concept with multiple meanings. Therefore, it is appropriate to clarify what the term politics means.

Conceiving the adjective political as linked to the interests of one party is incompatible with a judicial body, invalidating the necessary thirdness of the same.14 However, the term political derives from the Greek polis,15 which means city, and alludes to the society; it is clear how, from this point of view, jurisdictional activity cannot be exempt from political considerations, understood as about the collective.16 In this regard, the interpretation of the law cannot be entirely aseptic, forcing the judge to make choices related to a specific legal thought.17

In a sense, every court has a political component, which is certainly more pronounced in the case of international criminal justice. Emblematic is the case of the Nuremberg trial, where the two great losers of World War II, Nazism and Fascism, were on trial; the trial thus becomes the physical and ideal site of a clash between different ideologies and, particularly in the case of the Nuremberg trial, between good and evil.18 In this respect, the process can be political as an instrument of revenge against the enemy at the outcome of an armed conflict, a kind of “victor’s justice.”19 This conception is related to Carl Schmitt’s definition of politics as “the act of distinguishing between friends and enemies.”20 Precisely within this distinction lies the universal vocation of the International Criminal Court, clearly expressed in the Rome Statute, namely, the mission to prosecute the “most serious crimes of concern to the international community.”21 The ICC’s complex purpose is therefore to identify the perpetrators of such crimes and thus ensure that they do not go unpunished, pointing them out as a threat to all humanity; it is clear, therefore, that such activity requires the identification of the boundary separating good from evil, enemies from friends, and this distinction is inevitably political.22

What accentuates the ICC’s political connotation are two aspects; first, unlike the Nuremberg and Tokyo Tribunals, which were the scene of trials of the defeated of World War II, the ICC exercises its jurisdiction over wars that are still in progress, being able to act as an instrument to determine the defeat of one of the actors in the confrontation.23 Second, since the ICC’s mission is to act against the enemies of humanity, those who do not cooperate with it become, as a result, enemies of humanity; the ICC leverages this clear distinction between good and evil to incentivize cooperation with it, which is necessary to achieve its goals.24

While it is, therefore, difficult to separate judicial activity from political activity, declined in the meanings outlined above, the question that arises is this: can the political character of the courts be reconciled with the necessary impartiality of their decisions, thus not going to undermine the legitimacy of these institutions? Kirchheimer, a student of Schmitt, argued that a political trial allows for the elimination of enemies within an arena that follows predetermined rules and, precisely this aspect, not only makes the political battle compatible with the legal character of the instrument used but, in a sense, provides it with a kind of legitimacy.25

Based on the assumption that the ICC necessarily has a political component, connoted by the mission enshrined in its own Statute, the reconstruction of the Al Mahdi case provides practical insight into how this component affects the ICC’s activity and, more generally, its legitimacy.

III. The Al Mahdi Case

A. The International Legal Framework Related to the Crimes Against Cultural Heritage

The first international recognition of the importance of protecting cultural heritage occurred in 1935 with the signing of the Roerich Pact.26 The treaty, signed by twenty-one states but ratified by only nine (the United States plus other Central and South American states) and consisting of only eight articles, recognized for the first time that “the treasures of culture be respected and protected in time of war and in peace.”27 The definition of such property deserving special protection was vague, referring to the “historic monuments, museums, scientific, artistic, educational and cultural institutions.”28

The Roerich Pact was still a primordial instrument that nevertheless anticipated the more extensive protection offered by the Conventions adopted by UNESCO, the first of which was in 1954.29 That Convention, in providing a far more nuanced definition than the Roerich Pact gave to the “treasures of culture,”30 introduced the concept of “cultural property,”31 specifically including “monuments of architecture, art or history, whether religious or secular.”32

The instrument’s lack of effectiveness was inherent in the fact that it was left to the states parties to determine how to “prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property”33 without providing further guidance, especially in relation to the prosecution of those who offend the cultural property.34

The second international instrument promoted by UNESCO is the 1970 UNESCO Convention.35 Like its predecessor, the 1970 UNESCO Convention deferred to the member states the task of imposing “penalties or administrative sanctions on any person responsible for infringing.”36

It is also worth mentioning the third tool, the Convention Concerning the Protection of the World Cultural and Natural Heritage37 which, unlike the other two Conventions, does not address the issue of criminal protection of cultural heritage.

A significant further step is the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY),38 which includes, among the crimes under the jurisdiction of the ICTY, the “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.”39 It is precisely the case law of the ICTY that has significantly contributed to promoting the criminal protection of cultural heritage and has served as a guide for the ICC.

Finally, the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict,40 adopted in 1999, aimed to address the shortcomings of the 1954 Hague Convention.41 Specifically, the Second Protocol includes criminally relevant conduct such as the “extensive destruction or appropriation of cultural property protected under the Convention and this Protocol.”42

These international instruments provide a basis for the destruction of cultural heritage being included within the crimes covered by the Rome Statute.43

B. Crimes Committed by Al Mahdi and Related Context

In January 2012, a civil war broke out in Mali that pitted Malian security forces against an alliance formed by three Islamist groups, Ansar Dine, belonging to Salafist Islam, the Movement for Oneness and Jihad in West Africa and Al-Qai’ida in the Lands of the Islamic Maghreb, as well as the separatist group known as the National Movement for the Liberation of Azawad (MNLA). The interests of the latter group, driven by the desire to create a secular and independent state in the northern part of Mali, known as Azawad, diverged from those of the Islamist groups, whose intent was to impose Sharia throughout Malian territory; this circumstance soon led to the breakup of the partnership.44

In April 2012, militant groups occupied the regions of Kidal, Gao, and Timbuktu, imposing strict Islamic law; music, smoking, alcohol, and any other symbols of Western culture were banned; women were forced to cover themselves in full; violation of the rules was punished with amputations, floggings, and public executions.45

Within this context, in 2012, Ahmad al-Faqi al Mahdi (al Mahdi), then the head of Hisbah, a moralizing brigade within Ansar Dine, was tasked with preventing and suppressing any behavior by the local population that might represent a vice.46 Carrying out this task, al Mahdi led the destruction of several buildings and historical monuments symbolic of the Sufi current of Islam in Timbuktu, particularly nine mausoleums and the Sidi Yahia mosque.47 Of the latter, the attack destroyed the sacred door, known as the secret door of Sidi Yahia; this sacred door is pregnant with meaning in that, symbolically, it offers protection to several mausoleums located in the courtyard in front and, according to one belief, the opening or destruction of the door would bring misfortune to Timbuktu.48

The affected buildings belonged to the cultural heritage of the city and Mali more generally, and did not represent military targets; instead, they were targeted by the group because of their religious value.49 People in the area have always venerated these buildings, which are dedicated to holy figures. This ritual belongs to the Sufi current, which the Ansar Dine considers to be an execrable act since Salafis are against the worship of holy figures, who are historical figures sanctified by popular reverence and, therefore, cannot be worshipped in the same way as God.50

C. Procedural History

In July 2012, Mali, a state party to the Rome Statute, reported the situation to the ICC,51 thus setting the stage for the ICC to exercise jurisdiction.52 In particular, Mali drew attention to the grave human rights violations committed in the northern part of the country, pointing out, among others, the destruction of mosques and mausoleums.53

As a result of this referral, the Prosecutor’s office initiated an investigation54 focused on war crimes committed since January 2012 in the northern regions of Gao, Kidal, and Timbuktu. Among the crimes that emerged during the investigation, the Prosecutor mentioned:

1. murder constituting war crime under Article 8(2)(c)(i);

2. the passing of sentences and the carrying out of executions without due process constituting war crime under Article 8(2)(c)(iv);

3. mutilation, cruel treatment and torture constituting war crimes under Article 8(2)(c)(i);

4. intentionally directing attacks against protected objects constituting war crimes under Article 8(2)(e)(iv);

5. pillaging constituting war crime under Article 8(2)(e)(v); and

6. rape constituting war crimes under Article 8(2)(e)(vi).55

In July 2012, the Security Council stressed that “attacks against buildings dedicated to religion or historic monuments can constitute violations of international law which may fall under Additional Protocol II to the 1949 Geneva Conventions and the Rome Statute of the International Criminal Court.”56

On September 18, 2015, the Pre-Trial Chamber issued an arrest warrant for Al Mahdi, which was executed following his surrender by the Niger Authorities on September 26, 2015.57

The Pre-Trial Chamber considered the evidence presented by the Prosecutor, applying the less demanding evidentiary standard required for the preliminary stage of the proceedings.58 Therefore, the Pre-Trial Chamber noted that, in light of the evidence provided, the indictment plan presented by the Prosecutor was adequately robust to proceed against Al Mahdi; in particular, there was sufficient evidence regarding the existence of a non-international armed conflict, which began in January 2012 and persisted at the time of the commission of the acts alleged against Al Mahdi.59 The evidence provided, moreover, confirmed both the religious and historical value of the buildings under attack, thus ruling out the possibility that they were military targets. The attack was also aimed explicitly at these buildings precisely because of their religious value and took place in the context of a conflict in the area.60 Finally, the evidence presented confirmed Al Mahdi’s role in the attack; the latter, as head of Hisbah, determined the manner of actions in the execution of an order received from above, fully aware of the cultural and historical value of the buildings identified as targets of the operation.61

At the beginning of the trial, held between August 22 and 24, 2016, Al Mahdi formalized his guilty plea,62 confirming the statements made to the Prosecutor at the first interview. In consideration of this, the parties reached an agreement to expedite the proceedings.63

The Trial Chamber clarified that the conduct referred to in Article 8(2)(e)(iv) of the Rome Statute “encompasses any acts of violence against protected objects,”64 without “distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group.”65

In light of all the evidence gathered as well as the seriousness of the crime, the Trial Chamber sentenced the defendant to nine years, a sentence determined given the absence of aggravating circumstances and the existence, instead, of five mitigating circumstances, specifically:

1. Mr Al Mahdi’s admission of guilt;

2. his cooperation with the Prosecution;

3. the remorse and the empathy he expressed for the victims;

4. his initial reluctance to commit the crime and the steps he took to limit the damage caused; and

5. even if of limited importance, his good behaviour in detention despite his family situation.66

D. The Significance of the Al Mahdi Case

The Al Mahdi case represented many firsts.

It was the first case pending before the ICC in which the accused took responsibility for the crimes charged.67 The ICC interpreted the relevant provision of the Rome Statute68 as a “ ‘third avenue’ between the traditional common law and civil law approaches,”69 in that it adds, to the guilty plea proper to common law systems, the requirement that the plea needs to be supported by the facts and the evidence, thus approaching the abbreviated procedure typical of civil law systems.70 It is possible that herein lies the reason why the ICC, the first time it found itself applying this rule, avoided sentencing in the absence of a hearing despite the rule’s silence about this necessity.71 Negotiated justice, of which plea bargaining is one possible form, defers the settlement of the trial to the parties, thus being ill-suited to the context of an international criminal trial. Such a trial aims not only at determining guilt and imposing a penalty but also at fulfilling a moral function. Therefore, the holding of a hearing and the fundamental role played by judges give the trial the necessary legitimacy.72

The Al Mahdi case also represented the first trial of a member of an Islamic fundamentalist group before the ICC73 as well as, even more relevantly, the first conviction for the destruction of historical and religious monuments.74 As we have seen above, the interpretation provided by the ICC in this regard represented a fundamental breakthrough for the protection of property of cultural and religious interest, ensuring its protection not only during attacks carried out in the course of hostilities but, more generally, in the context of those hostilities. The importance of this breakthrough is also inherent in considering the risks of a restrictive interpretation of the rule in question, which would leave objects of cultural and religious value unprotected and the perpetrators of the relevant attacks unpunished, where perpetrated after the active phase of the fighting.75 The groundbreaking significance of this decision gains more relevance when considering the importance of this precedent for the prosecution of similar crimes committed in other parts of the world; the crimes committed in Mali do not represent isolated cases as extremist groups in different theaters of war also adopt the destruction of a people’s cultural heritage as a means of erasing it.76 Before the Al Mahdi case, however, there was a lack of incisive tools for prosecuting such criminal acts, and this ruling represented the decisive step in elevating the protection of cultural heritage to jus cogens.77

The Al Mahdi case is also relevant given Mali’s and Niger’s cooperation with the ICC; this circumstance is not insignificant in that it may be a valid argument for changing the perception of the ICC as an institution that pounces on African states and, for this reason, is little appreciated by them.78

IV. Criticism Generated by Al Mahdi’s Conviction and Possible Responses

The overview provided so far would make one think of the Al Mahdi case as the perfect opportunity to promote the ICC’s image as an efficient and effective institution appreciated by the states. Things are not seen exactly in those terms, however, as, again, negative judgments were not long in coming. Therefore, it seems appropriate to examine the various contentions made to the ICC concerning the Al Mahdi case and, subsequently, attempt to respond to them.

A. Critical Positions

One of the criticisms addressed to the ICC regarding the Al Mahdi case concerns the fact that the Ansar Dine member was tried only for the crime of destruction of cultural heritage and not for the other horrific crimes committed by him and his associates; in particular, allegations of gender-based violence, including rape, gang rape, torture, and sexual slavery, perpetrated in Timbuktu between 2012 and 2013, were made against the militants. These allegations were based on testimony given by victims, taken before the High Court in Bamako, and then shared with the ICC.79 The criticism directed at the ICC is that it was satisfied with charging Al Mahdi for the crime of destroying mosques, which was easy to ascertain given the extensive availability of video evidence, without delving into the other more serious crimes committed in the city with further investigation.80

Furthermore, according to Schabas, Al Mahdi was even convicted of a crime he never committed;81 this thesis is based on the analysis of the crime charged against the Ansar Dine member.82 The first problem would be related to the interpretation of the term “attacks”83 since, considering its common meaning, this word is ill-suited to the destruction of buildings carried out using tools quite different from those usually employed in military contexts.84 Moreover, in view of the derivation of Article 8(2)(e)(iv) of the Rome Statute from various international treaties governing the law of armed conflict, the same should be interpreted in light of Art. 49(1) of the Additional Protocol which speaks of “attacks” as “acts of violence against the adversary, whether in offence or in defense;”85 this would be confirmed not only by the position expressed by other international courts, as well as by doctrine, but by the ICC Office of the Prosecutor itself, which, in the report prepared regarding the Gaza flotilla raid, showed that it believed that “ Article 8 should be interpreted with reference to international humanitarian law in general.”86 Moreover, a broad interpretation of Rome Statute Article 887 would be incompatible with its Article 22(2),88 which states: “the definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”89

Another element highlighted by Schabas is that of the necessary link between the acts committed and the armed conflict; even allowing for a broad interpretation of the term “attacks,”90 the link between the actions of Al Mahdi and the ongoing conflict in Mali would be missing in this case.91 From this point of view, records available to the court ruled out the conduct of military operations in Timbuktu, which, moreover, was firmly under the militants’ control at that time.92

This criticism is not isolated; in fact, some argue that the ICC’s interpretation of the Al Mahdi case is not in accordance with international humanitarian law.93

Another issue under discussion is related to the two requisites of a case’s admissibility before the ICC; gravity94 and complementarity.95

Concerning the question of gravity, some of the critical positions raised doubts regarding the extent of Al Mahdi’s responsibility in the crimes charged against him, in which other members of Islamist groups had also participated; according to one reconstruction, Al Mahdi had been tried out of pragmatism, given the unavailability of the other leaders of various extremist groups, the question of whether Al Mahdi was the major perpetrator of the crimes committed therefore not being answered.96 Other doubts have been raised about the appropriateness of prosecuting Al Mahdi’s actions just under Article 8(2)(e)(iv), outside of a broader indictment plan that included far more serious crimes, thus not reaching the necessary threshold of seriousness.97

The other issue, as anticipated, relates to the principle of complementarity. This critical position starts from the circumstance that Al Mahdi was already in the hands of the Niger Authorities on terrorism charges when the ICC issued the arrest warrant; the ICC then proceeded to request Al Mahdi’s transfer, without questioning whether the Niger Authorities were able and willing to prosecute Al Mahdi.98

B. The Issue Related to the Interpretation of Article 8(2)(e)(iv)

The criticism that poses the most problems regarding Al Mahdi’s conviction is related to the interpretation of the term “attacks;”99 the different meanings attributable to this term affect the presence of the elements necessary to integrate the crime.

It is appropriate to proceed step by step to assess this criticism’s merits, starting with Article 9,100 which refers to the Elements of Crimes101 as a supporting tool for interpreting. Reading that document provides the following indications regarding the war crime under Art. 8(2)(e)(iv):

1. The perpetrator directed an attack.

2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.

3. [T]he perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack.

4. The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.102

At first glance, it appears that Al Mahdi’s conviction met the various requirements, as explained by the ICC itself in the argumentative part of the judgment.

The central knot to be unraveled, however, is the connecting element between the act of destruction and the armed conflict; in this regard, neither Article 8(2)(e)(iv) nor the Elements of Crimes provide a definitive answer.

Another article of the Rome Statute that may prove supportive in this regard is Article 21103 that outlines a kind of hierarchy in the sources of law available to the ICC, starting first with the Statute, Elements of Crimes, Rules of Procedure and Evidence;104 subordinately, “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;”105 residually, “general principles of law derived by the Court from national laws of legal systems of the world […] provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.”106

Thus, given the Statute’s vagueness on the subject, international law, particularly the law of armed conflict, must be consulted.

Interesting from this point of view is the reconstruction provided in the opinion of the amicus curiae drafted for the appellate phase of the proceedings against Bosco Ntaganda,107 which outlines four reasons supporting an extension of the scope of the term “attacks,”108 the first of which refers precisely to established international law. In this regard, it is pointed out that the protection offered by international humanitarian law extends beyond the active hostilities phase of an armed conflict;109 the opinion cites the Additional Protocol II, whose Article 16 offers extended protection to cultural property, using a broad expression, namely that of “acts of hostility.”110

This interpretation is also supported by a reading of Article 8(2)(e)(iv) in relation to the drafting work of the Rome Statute, from which we learn that the rule in question also draws from Article 56 of the 1907 Hague regulations,111 which applies during occupation, thus at a stage after the active fighting.112

The third reason to support this argument is to consider the purposes of the Rome Statute, which include protecting cultural heritage.113 The importance given by the Rome Statute is evident from the Preamble where it is underlined that “all peoples are united by common bonds, their cultures pieced together in a shared heritage,”114 combined with the concern that “this delicate mosaic may be shattered at any time.”115

Finally, there is a need to avoid a gap in the protection of cultural heritage during the intermediate phase of the conflict, that “between the conclusion of the conduct of hostilities and the formal onset of occupation.”116

ICTY case law provides further elucidation in this regard concerning what constitutes an armed conflict, clarifying that:

[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.117

The above picture seems to represent well what the context in northern Mali was at the time; that the situation in Timbuktu was indeed still evolving, as there was no established control of the territory by Ansar Dine and armed violence was still ongoing, is confirmed by sources; first, in June 2012, the two forces that had achieved control of northern Mali, the MNLA rebels and the Islamists of Ansar Dine, clashed, ending their alliance; at the same time, moreover, the Patriots’ Resistance Movement for the Liberation of Timbuktu was being formed in Timbuktu to counter the activities of the groups mentioned above.118

Furthermore, that the destruction of Timbuktu’s cultural heritage was directly linked to the ongoing conflict seems a circumstance that can hardly be disputed; in fact, religious and political reasons were driving Islamist groups to carry out such actions, which were part of the objective pursued by these groups in the area, namely, to introduce Sharia law and fight infidels.119

C. The Gravity Issue

As previously stated, doubts have also been expressed regarding the existence of the gravity requirement.

In one respect, Al Mahdi’s actual responsibilities in the context of the crimes charged would be uncertain, thus leaving open the issue of whether he was the most responsible for the crimes committed. Although it is appropriate for the ICC to focus on the most responsible actors, even given the limited resources available, the Rome Statute doesn’t impose this condition.120 In fact, Article 1 of the Rome Statute simply provides for the exercise of jurisdiction “over persons for the most serious crimes of international concern.”121 The other reference in this regard can be found in Article 53,122 which, with regard to investigations put in place by the Prosecutor, clarifies both the conditions necessary for the commencement of investigations and the closure of investigations; concerning the latter, the Prosecutor may exclude the existence of the conditions for proceeding when “a prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”123

The references offered by the Rome Statute in this regard are therefore quite limited.

In justifying the existence of the gravity requirement, the Trial Chamber preliminarily notes that crimes against property, such as the one charged against Al Mahdi, “are generally of lesser gravity than crimes against persons.”124 Nevertheless, in the present case, the crime committed by Al Mahdi was deemed to be of such gravity that it met the required threshold given the duration of the attack, which amounted to ten days, as well as the value of the affected buildings.125 The latter were not only important to the locals, on whom the affected buildings also exercised a “psychological role to the extent of being perceived as protecting the people of Timbuktu,”126 but also to the international community, since all but one of the affected buildings were recognized as UNESCO World Heritage sites.127

It should also not be overlooked that Al Mahdi himself recognized the seriousness of his actions precisely because of the value of the buildings affected by the attack.128

In this regard, interesting insights are offered by the case law of the ICTY, which on several occasions has emphasized that attacks on cultural property undermine not only the history of the affected area, but also the cultural heritage of humanity, due to the unique value of such property.129 Ultimately, the gravity should not be assessed by merely considering the crime itself, but by extending the analysis to its long-term effects.130 Precisely because of the high symbolic value of the buildings involved, the long-term consequences of the actions of Al Madhi and his accomplices are not in question.

D. The Complementarity Issue

Again, the criticism directed at the ICC regarding the lack of attention given to the issue of complementarity appears ill-founded.

First, while it is true that, at the time of the transfer to The Hague, Al Mahdi was being held by the Niger Authorities for the charge of conspiracy to commit terrorism,131 the charge on which the trial before the ICC was based was different, namely the war crime of destruction of cultural heritage.

In this regard, a case worth mentioning is the one concerning Thomas Lubanga Dyilo; when the ICC decided to prosecute the leader of the Union of Congolese Patriots, the latter was at the time being investigated by domestic judicial authorities for several crimes, concerning which, moreover, arrest warrants had been issued against him.132 The ICC pointed out how, to reach an assessment of inadmissibility, “national proceedings must encompass both the person and the conduct which is the subject of the case before the Court.”133 Therefore, the fact that the national Authorities were prosecuting Lubanga was not an obstacle to the admissibility of the case before the ICC because of the difference in the crimes charged against Lubanga.134

Furthermore, concerning Mali’s ability to try Al Mahdi, it should be noted that, at the time of the ICC’s intervention, there were no open proceedings against him in the country.135 The self-referral put in place by Mali, moreover, involved a kind of renunciation of complementarity; Mali recognized the ICC as the best forum to avoid impunity for the grave acts committed by extremist groups in the north of the country.136 The fierce civil war affecting the country as well as the critical issues inherent in the Malian justice system are clear indicators that domestic courts were ill-equipped to prosecute the crimes charged against Al Mahdi. Sources consulted in this regard point to corruption as well as limited resources as elements that undermine the possibility of fair trials in Mali.137

Moreover, a 2016 Position Paper reports that, since 2013, Malian authorities have released about 220 people arrested for crimes committed in the north of the country; charges include crimes against humanity, war crimes, and other serious human rights violations.138 These releases can be attributed, in part, to measures related to the Peace and Reconciliation agreement signed in Bamako in June 2015, as well as to a lack of will and resources on the part of Malian Authorities.139

V. The Apparent Contradictions Inside the ICC

In November 2019, the Trial Chamber sentenced Bosco Ntaganda, Deputy Chief of Staff of the Patriotic Forces for the Liberation of Congo, an armed rib of the Union of Congolese Patriots (UPC), to thirty years in prison; the charges against him related to war crimes and crimes against humanity committed in the context of the internal armed conflict that affected the Ituri region in eastern Democratic Republic of Congo (DRC) between 2002 and 2003.140 Ntaganda was found guilty of, among other crimes, rape, sexual slavery, and conscription of minors.141 The charges against Ntaganda included the destruction of a church, a war crime under Article 8(2)(e)(iv) of the Rome Statute.142 In the Ntaganda case, the Trial Chamber adopted a different interpretation of Article 8(2)(e)(iv), marking an essential distance from the position expressed by the ICC in the Al Mahdi case, arguing that the “crime of attacking protected objects belongs to the category of offences committed during the actual conduct of hostilities.”143

This decision was met with several criticisms, collected by the Prosecutor in her appeal brief; according to her reconstruction, the special meaning to be given to the term “attacks”144 finds confirmation in international law and in the context of the Rome Statute itself. That provision, in fact, “is intended to establish additional protection for certain objects under the Statute, including but not limited to cultural property and to hospitals […] it is necessary to ensure that this protection is meaningful in all relevant contexts.”145 In essence, the Prosecutor reiterated the need for such assets to enjoy protection from acts of violence carried out not only during hostilities but also when the same assets fall under the control of one of the parties to the conflict.

This issue was the subject of debate at the appeal stage, where the Chamber was divided on the interpretation of the article in question; a majority of the Chamber, except Judge Ibáñez Carranza, opted to uphold Bosco Ntaganda’s acquittal concerning the charge related to Article 8(2)(e)(iv).146 A careful reading of the opinions expressed by the judges allows the ruling to be read differently.

In her dissenting opinion, Justice Ibáñez Carranza explains her opposition to a restrictive interpretation of the word attack, which is incompatible with the purpose of Article 8(2)(e)(iv) and, more generally, the Rome Statute, which is to prevent acts of damage to cultural heritage from going unpunished.147 Justice Carranza also identifies the decisive aspect in the connection between such actions and hostilities,148 emphasizing how the term attack encapsulates “the preparation, the carrying out of combat action and the immediate aftermath thereof, including criminal acts committed during ratissage operations carried out in the aftermath of combat action.”149

Except for two other judges who agreed with the interpretation provided by the Trial Court, the other two members of the Chamber, while in favor of upholding Bosco Ntaganda’s acquittal concerning this charge, appear to differ from the conclusions drawn by the Trial Chamber regarding the interpretation of the term attack, instead adhering to the position outlined above.150

Indeed, Judge Balungi Bossa agreed with Judge Carranza on the need to interpret the Rome Statute in such a way as to avoid gaps of impunity,151 leaning toward a more expansive interpretation of the word attack.152 Similarly, Judge Eboe-Osuji pointed out that the attack sanctioned by the rule can take place “outside the course of active hostilities.”153 Both latter two judges, however, agreed that Bosco Ntaganda’s conduct fell under Article 8(2)(e)(xii), which is why they upheld the acquittal concerning to Article 8(2)(e)(iv).154

The ICC does not appear to have contradicted itself in that the majority of the Appeals Chamber actually endorsed the interpretation provided by the ICC in the Al Mahdi case.

VI. Conclusion

The image of the ICC as a purely judicial institution, divorced from any political dimension, in accordance with legalistic thinking, is advocated by its supporters, who are convinced that such a portrayal is the only one possible to promote the ICC and its legitimacy.155 In reality, such a conception of the ICC represents a mystification of reality.156

Every court has a political dimension, as explained above. The main issue then is not the political dimension of the trials but the consideration of the political values promoted and implicated in such trials.157 What then were the values involved in the trial of Al Mahdi? What message did the ICC want to send? It is plausible to assume that the ICC wanted to emphasize that acts of destruction of cultural heritage offend all of humanity, thus meriting its attention; in condemning Al Mahdi, the ICC also recognized the significance of the history of the people of Timbuktu.158 At the same time, the ICC addressed extremist groups guilty of such attacks, affirming the unacceptability of such conduct, which, before the Al Mahdi case, risked going unpunished.159

To do so, the ICC had to fill with meaning a word, “attacks,”160 generic and inclusive of multiple connotations; the ICC did so simply by making use of the tools at its disposal, the Statute, the Elements of Crimes, the case law of other courts, as well as the principles of international law.

Therefore, the Al Mahdi trial was political insofar as the ICC sent messages to the international community through it; at the same time, this trial retained its judicial character insofar as the ICC affirmed these values in the manner allowed for a court. In this way, the ICC acts as a political actor while maintaining its independence.

The problem, however, lies in a communication flaw; the ICC’s constant denial of its political component prevents it from explaining its political dimension in a way that might be compatible with its function. At the same time, the apparent afterthought in the Ntaganda case casts shadows on the Al Mahdi case; only a careful reading of the judgment allows one to understand how there was no step backward, at least by the majority of the Appeals Chamber.

Ultimately, only the recognition of its political dimension, the explanation of its meaning, and the consequent abandonment of rigid legalism can enable the ICC to improve its image and increase its authority.161

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Mark A. Green, The Numbers Behind the International Criminal Court, Wilson Center (Jun. 4, 2024), available online; Per una Giustizia Penale Internazionale più Forte ed Efficace, EEAS (Jul. 16, 2021) (It.), available online. ↩

2. 2.

   Eric Wiebelhaus-Brahm & Kirsten Ainley, The Evolution of Funding for the International Criminal Court: Budgets, Donors and Gender Justice, 22 J. Hum. Rts. 31, 34 (Jan. 31, 2023), available online, doi. ↩

3. 3.

   Elizabeth Wilmshurst, Strengthen the International Criminal Court, Chatham House, available online (Oct. 14, 2020). ↩

4. 4.

   Wiebelhaus-Brahm & Ainley, supra note 2, at 32–33; Charles Achaleke Taku, Has the International Criminal Court Inappropriately Targeted Africa?, ICC Forum (Mar. 17, 2013), available online. ↩

5. 5.

   Alana Tiemessen, The International Criminal Court and the Politics of Prosecutions, 18 Int’l J. of Hum. Rts. 444, 446 (May 2014), paywall, doi. ↩

6. 6.

   United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/13 (Vol. II), 2nd Plenary Meeting, 64 ¶ 16 (Jun. 15, 1998), available online. ↩

7. 7.

   Birju Kotecha, The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism, 31 Leiden J. Int’l L. 939, 940 (Dec. 2018), paywall, earlier version available online, doi. ↩

8. 8.

   Luis Moreno-Ocampo, ICC Prosecutor, Speech on Investigations and Prosecutions of the International Criminal Court, PGA 3 (Santo Domingo, Oct. 30, 2008), available online. ↩

9. 9.

   Open Society Justice Initiative, The Trial of Ahmad Al Faqi Al Mahdi at the International Criminal Court (Aug. 2016), available online. ↩

10. 10.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 8(2)(e)(iv), available online. ↩

11. 11.

    The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Judgment (ICC TC VI, Jul. 8, 2019) [hereinafter Ntaganda Judgment], available online. ↩

12. 12.

    Judith N. Shklar, Legalism: Law, Morals, and Political Trials 1 (1st ed., 1964), paywall. ↩

13. 13.

    Id. at 111. ↩

14. 14.

    Giorgio Pino, Il Paradosso del Giudice (Im)Politico, 1–2 Questione Giustizia 206, 207–08 (Apr. 20, 2024) (It.), available online. ↩

15. 15.

    Polis, Merriam-Webster, available online (last visited Jan. 20, 2025). ↩

16. 16.

    Pino, supra note 14, at 208. ↩

17. 17.

    Id. at 210–11. ↩

18. 18.

    Gerry J. Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law 13 (Dec. 2007), paywall. ↩

19. 19.

    Id. ↩

20. 20.

    Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 EJIL 941, 944 (Nov. 2010), available online, doi. ↩

21. 21.

    Rome Statute, supra note 10, at Preamble. ↩

22. 22.

    Nouwen & Werner, supra note 20, at 961–62. ↩

23. 23.

    Id. at 963. ↩

24. 24.

    Id. at 963–64. ↩

25. 25.

    Id. at 945–46. ↩

26. 26.

    Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, 167 League of Nations Treaty Series 289 (Apr. 15, 1935, entered into force Aug. 26, 1935) [hereinafter Roerich Pact], available online. ↩

27. 27.

    Id. at Preamble. ↩

28. 28.

    Id. Art. 1. ↩

29. 29.

    Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 U.N.T.S. 215 (May 14, 1954, entered into force Aug. 7, 1956) [hereinafter 1954 Hague Convention], available online. ↩

30. 30.

    Roerich Pact, supra note 26, at Preamble. ↩

31. 31.

    1954 Hague Convention, supra note 29, at Art. 1. ↩

32. 32.

    Id. Art. 1(a). ↩

33. 33.

    Id. Art. 4.3. ↩

34. 34.

    Id. Art. 28. ↩

35. 35.

    Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 823 U.N.T.S. 231 (Nov. 14, 1970, entered into force Apr. 24, 1972) [hereinafter 1970 UNESCO Convention], available online. ↩

36. 36.

    Id. Art. 8. ↩

37. 37.

    Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037 U.N.T.S. 151 (Nov. 16, 1972, entered into force Dec. 17, 1975) [hereinafter World Heritage Convention], available online. ↩

38. 38.

    Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827 (adopted May 25, 1993, as last amended Jul. 7, 2009) [hereinafter ICTY Statute], available online. ↩

39. 39.

    Id. Art. 3(d). ↩

40. 40.

    Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 2253 U.N.T.S. 172 (Mar. 26, 1999, entered into force Mar. 9, 2004), available online. ↩

41. 41.

    Id. at Preamble. ↩

42. 42.

    Id. Art. 15.1(c). ↩

43. 43.

    Rome Statute, supra note 10, at Arts. 8(2)(b)(ix), 8(2)(e)(iv). ↩

44. 44.

    Ansar Dine, Mapping Militants Project (Aug. 8, 2016), available online. ↩

45. 45.

    Human Rights Watch, Mali: Islamist Armed Groups Spread Fear in North (Sep. 25, 2012), available online; Sudarsan Raghavan, In Northern Mali, Music Silenced as Islamists Drive out Artists, Wash. Post, Nov. 30, 2012, available online. ↩

46. 46.

    Frédéric Foka Taffo, Al Mahdi’s Case Before the International Criminal Court, ACCORD, Feb. 16, 2017, available online. ↩

47. 47.

    Nicholas Jubber, Ahmad al-Faqi al-Mahdi: The Vandal of Timbuktu, BBC News, Sep. 27, 2016, available online. ↩

48. 48.

    UNESCO Welcomes Restoration of Sacred Gate of Sidi Yahia in Timbuktu, UNESCO WHC (Sep. 20, 2016), available online. ↩

49. 49.

    International Criminal Court, ICC-01/12-01/15, Case Information Sheet: The Prosecutor v. Ahmad Al Faqi Al Mahdi (Jan. 2022), available online. ↩

50. 50.

    Pascal Fletcher, Timbuktu Tomb Destroyers Pulverise Islam’s History, Reuters, Jul. 3, 2012, available online. ↩

51. 51.

    Minister of Justice, Government of Mali, Letter to the ICC Referring the Situation in Mali (Jul. 13, 2012) [hereinafter Mali Referral] (Fr.), available online. ↩

52. 52.

    Rome Statute, supra note 10, at Art. 14. ↩

53. 53.

    Mali Referral, supra note 51. ↩

54. 54.

    Rome Statute, supra note 10, at Art. 53. ↩

55. 55.

    Office of the Prosecutor, Situation in Mali: Article 53(1) Report 5 (Jan. 16, 2013) [hereinafter Situation in Mali], available online. ↩

56. 56.

    S.C. Res. 2056, U.N. Doc. S/RES/2056, ¶ 18 (Jul. 5, 2012), available online. ↩

57. 57.

    The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, ¶¶ 4–5 (ICC PTC I, Mar. 25, 2016), available online. ↩

58. 58.

    Id. ¶ 18. ↩

59. 59.

    Id. ¶¶ 30–32. ↩

60. 60.

    Id. ¶¶ 33–44. ↩

61. 61.

    Id. ¶¶ 45–57. ↩

62. 62.

    The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence ¶ 7 (ICC TC VIII, Sep. 27, 2016) [hereinafter Al Mahdi: Judgment and Sentence], available online. ↩

63. 63.

    Id. ¶ 98. ↩

64. 64.

    Id. ¶ 15. ↩

65. 65.

    Id. ↩

66. 66.

    Id. ¶ 109. ↩

67. 67.

    Marina Aksenova, The Al Mahdi Judgment and Sentence at the ICC: A Source of Cautious Optimism for International Criminal Justice, EJIL Talk (Oct. 13, 2016), available online. ↩

68. 68.

    Rome Statute, supra note 10, at Art. 65. ↩

69. 69.

    Al Mahdi: Judgment and Sentence, supra note 62, ¶ 27. ↩

70. 70.

    Id. ↩

71. 71.

    Giovanni Chiarini, Negotiated Justice in the ICC: Following the Al Mahdi Case, a Proposal to Enforce the Rights of the Accused, Global Just. J. (Apr. 2, 2021), available online. ↩

72. 72.

    Id. ↩

73. 73.

    Mark Kersten, The al-Mahdi Case is a Breakthrough for the International Criminal Court, Just. in Conflict (Aug. 25, 2016), available online. ↩

74. 74.

    Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

75. 75.

    Emma A. O’Connell, Criminal Liability for the Destruction of Cultural Property: The Prosecutor v. Bosco Ntaganda, 15 DePaul J. for Soc. Just. 1, 62 (May 2022), available online. ↩

76. 76.

    Cara Solomon, Alumni Perspective: “The Significance of the al-Mahdi Case and the War Crime of Destruction of Cultural Heritage”, Int’l Hum. Rts. Clin. (Sep. 30, 2016), available online. ↩

77. 77.

    Daniel M. Cole, From the Hague to Timbuktu: The Prosecutor v. Ahamad Al Faqi Al Mahdi; A Consequential Case of Firsts for Cultural Heritage and for the International Criminal Court, 31 Temp. Int’l & Comp. L.J. 398, 451–52 (2017), available online. ↩

78. 78.

    Kersten, supra note 73. ↩

79. 79.

    Marie Forestier, ICC to War Criminals: Destroying Shrines Is Worse Than Rape, Foreign Pol. (Aug. 22, 2016), available online. ↩

80. 80.

    Id. ↩

81. 81.

    William A. Schabas, Al Mahdi Has Been Convicted of a Crime He Did Not Commit, 49 Case W. Res. J. Int’l L. 75 (2017), available online. ↩

82. 82.

    Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

83. 83.

    Id. ↩

84. 84.

    Schabas, supra note 81, at 78. ↩

85. 85.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3, Art. 49.1 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩

86. 86.

    Schabas, supra note 81, at 80. ↩

87. 87.

    Rome Statute, supra note 10, at Art. 8. ↩

88. 88.

    Id. Art. 22(2). ↩

89. 89.

    Id. ↩

90. 90.

    Id. Art. 8(2)(e)(iv). ↩

91. 91.

    Schabas, supra note 81, at 93–94. ↩

92. 92.

    Id. at 76. ↩

93. 93.

    Agnieszka Jachec-Neale, The Unintended Consequences of International Court Decisions, Articles of War (Nov. 19, 2020), available online. ↩

94. 94.

    Rome Statute, supra note 10, at Art. 17(1)(d). ↩

95. 95.

    Id. Arts. 17(1)(a) and (b). ↩

96. 96.

    Milena Sterio, Individual Criminal Responsibility for the Destruction of Religious and Historic Buildings: The Al Mahdi Case, 49 Case W. Res. J. Int’l L. 63, 71 (2017), available online. ↩

97. 97.

    Id. at 71–72. ↩

98. 98.

    Id. at 72. ↩

99. 99.

    Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

100. 100.

     Id. Art. 9. ↩

101. 101.

     International Criminal Court, Elements of Crimes, ICC-ASP/1/3, Adopted and Entry into Force 9 September 2002, updated at Kampala, 31 May-11 June 2010 (Jun. 11, 2011), available online, archived. ↩

102. 102.

     Id. Art. 8(2)(e)(iv). ↩

103. 103.

     Rome Statute, supra note 10, at Art. 21. ↩

104. 104.

     International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (2013) [hereinafter 2013 RPE], available online, archived. ↩

105. 105.

     Rome Statute, supra note 10, at Art. 21(1)(b). ↩

106. 106.

     Id. Art. 21(1)(c). ↩

107. 107.

     The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Amicus Curiae Observations by Public International Law & Policy Group (ICC The Appeals Chamber, Sep. 18, 2020) [hereinafter Amicus Curiae Observations], available online. ↩

108. 108.

     Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

109. 109.

     Amicus Curiae Observations, supra note 107, ¶ 5. ↩

110. 110.

     Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609, Art. 16 (Jun. 8, 1977) [hereinafter Additional Protocol II], available online, archived. ↩

111. 111.

     Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, Art. 56 (Oct. 18, 1907, entered into force Jan. 26, 1910), available online. ↩

112. 112.

     Amicus Curiae Observations, supra note 107, ¶¶ 6–7. ↩

113. 113.

     Id. ¶ 8. ↩

114. 114.

     Rome Statute, supra note 10, at Preamble. ↩

115. 115.

     Id. ↩

116. 116.

     Amicus Curiae Observations, supra note 107, ¶ 9. ↩

117. 117.

     The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (ICTY AC, Oct. 2, 1995), available online, archived. ↩

118. 118.

     Anne Look, Malian Militias Unite to “Liberate the North”, Voice of America, Jul. 23, 2012, available online; Mali Rebel Groups “Clash in Kidal”, BBC News, Jun. 9, 2012, available online; Anaïs Maroonian, Mali, Conduct of Hostilities, ICRC Online Casebook, available online (last visited Dec. 2, 2024). ↩

119. 119.

     Johan Brosché, Mattias Legnér, Joakim Kreutz & Akram Ijla, Heritage under Attack: Motives for Targeting Cultural Property During Armed Conflict, 23 Int’l J. Heritage Stud. 248, 252 (Nov. 30, 2016), paywall, earlier version available online, doi. ↩

120. 120.

     Susana SáCouto & Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Int’l L. Rev. 807, 812 (2018), available online. ↩

121. 121.

     Rome Statute, supra note 10, at Art. 1. ↩

122. 122.

     Id. Art. 53. ↩

123. 123.

     Id. Art. 53(2)(c). ↩

124. 124.

     Al Mahdi: Judgment and Sentence, supra note 62, ¶ 77. ↩

125. 125.

     Id. ¶ 78. ↩

126. 126.

     Id. ↩

127. 127.

     Id. ¶ 80. ↩

128. 128.

     Ahmad Al Faqi Al Mahdi: “I plead guilty”, UNESCO Courier, Oct. 17, 2017, available online. ↩

129. 129.

     Mark S. Ellis, The ICC’s Role in Combatting the Destruction of Cultural Heritage, 49 Case W. Res. J. Int’l L. 23, 45 (2017), available online. ↩

130. 130.

     Id. at 46. ↩

131. 131.

     Le Niger Remet le Jihadiste Malien Ahmad Al Faqi Al Mahdi à la Cour Pénale Internationale, ActuNiger, Sep. 27, 2015, (Fr.), available online. ↩

132. 132.

     The Prosecutor v. Thomas Lubanga Dyilo, ICC 01/04-01/06, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, ¶ 36 (ICC PTC I, Feb. 10, 2006), available online. ↩

133. 133.

     Id. ¶ 37. ↩

134. 134.

     Id. ¶¶ 38–39. ↩

135. 135.

     Situation in Mali, supra note 55, ¶ 10. ↩

136. 136.

     Mali Referral, supra note 51. ↩

137. 137.

     U.S. Department of State, Country Report on Human Rights Practices 2012—Mali (Apr. 19, 2013), available online. ↩

138. 138.

     Fédération Internationale des Droits de l’Homme & Moroccan Association of Human Rights, Mali: Peace Threatened by Insecurity, Impunity and the Fight Against Terrorism (Feb. 19, 2016), available online. ↩

139. 139.

     Fédération Internationale des Droits de l’Homme, Q&A: The Al Mahdi Case at the ICC (Aug. 17, 2016), available online. ↩

140. 140.

     International Criminal Court, ICC-01/04-02/06, Case Information Sheet: The Prosecutor v. Bosco Ntaganda (Jul. 2021), available online. ↩

141. 141.

     Id. ↩

142. 142.

     O’Connell, supra note 75, at 41. ↩

143. 143.

     Ntaganda Judgment, supra note 11, ¶ 1136. ↩

144. 144.

     Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

145. 145.

     The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06, Prosecution Appeal Brief, ¶ 31 (ICC AC, Oct. 7, 2019), available online. ↩

146. 146.

     The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 A A2, Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled “Judgment”, ¶ 1163 (ICC AC, Mar. 30, 2021) [hereinafter Ntaganda: Judgment on the Appeals], available online. ↩

147. 147.

     Id. ¶ 1167. ↩

148. 148.

     Id. ¶ 1166. ↩

149. 149.

     Id. ¶ 1168. ↩

150. 150.

     Ntaganda: Judgment on the Appeals, supra note 146, ¶ 1164. ↩

151. 151.

     The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-2666-Anx4, Separate Opinion of Judge Solomy Balungi Bossa on the Prosecutor’s appeal, ¶ 16 (Mar. 30, 2021) [hereinafter Bossa Separate Opinion], available online. ↩

152. 152.

     Id. ¶¶ 1–2. ↩

153. 153.

     Ntaganda: Judgment on the Appeals, supra note 146, ¶ 1164. ↩

154. 154.

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155. 155.

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156. 156.

     Id. ↩

157. 157.

     Shklar, supra note 12, at 220. ↩

158. 158.

     Solomon, supra note 76. ↩

159. 159.

     Id. ↩

160. 160.

     Rome Statute, supra note 10, at Art. 8(2)(e)(iv). ↩

161. 161.

     Moyn, supra note 155, at 494–95. ↩

A. Jurisdiction

The ICC has jurisdiction over genocide, crimes against humanity, war crimes, and aggression, with a particular focus on crimes committed on the territory of state parties or by their nationals. Nevertheless, the ICC’s jurisdiction may extend beyond the territory of state parties in cases referred by the U.N. Security Council or at the discretion of the Prosecutor. This expansive jurisdiction has prompted concerns about the sovereignty of states, particularly those of China.1

1. Subject-Matter Jurisdiction

i. Disagreement with Criminalization of Non-International Armed Conflicts

China fundamentally disagrees with the ICC’s criminalization of acts committed in non-international armed conflicts, as outlined in Article 8 of the Rome Statute.2 While the ICC aims to hold individuals accountable for crimes such as targeting civilians or using child soldiers in NIAC, China argues that these conflicts are inherently domestic matters that should be resolved by states without external interference. Unlike international armed conflicts, which involve cross-border hostilities, NIAC typically arise within a state’s borders and, in China’s view, fall under the exclusive jurisdiction of national authorities.

China perceives the ICC’s focus on NIAC as a mechanism that could facilitate external interference, particularly by Western powers, under the guise of international justice. This concern is heightened by the ICC’s history of investigating internal conflicts in African states, such as those involving the Lord’s Resistance Army in Uganda and militant groups in Mali. By prosecuting crimes in NIAC, the ICC imposes international standards on what China regards as internal issues, potentially destabilizing fragile political contexts and exacerbating conflicts.

The broad criminalization of NIAC-related actions also raises significant sovereignty concerns. China argues that this framework risks labeling state actors engaged in legitimate counterinsurgency efforts as perpetrators of international crimes. Such accusations could undermine a state’s ability to maintain internal order and peace, particularly in regions facing separatist movements or insurgencies. For China, this represents a direct challenge to its principle of non-interference3 and reinforces its skepticism toward the ICC as a neutral arbiter of justice. These concerns underscore China’s broader critique of the ICC as an institution that prioritizes universal jurisdiction over the sovereign rights of states.

Lastly, China is particularly concerned that NIAC-focused investigations could target state actors dealing with separatist movements in regions such as Xinjiang or Tibet. The ICC’s broad jurisdiction and prosecutorial discretion pose a risk of framing China’s domestic counterinsurgency efforts as international crimes, subject to external scrutiny. This concern aligns with China’s long-standing resistance to the concept of universal jurisdiction in human rights contexts, which it views as undermining state sovereignty and legal independence. Such potential implications deepen China’s critique of the ICC as an institution that prioritizes external intervention over respecting sovereign equality.

ii. The Exclusion of Other Transnational Crimes

The jurisdiction of the ICC is insufficiently expansive, with a focus on crimes aligned with the value system of Western countries. This excludes crimes such as drug trafficking, international terrorism, transnational organized crime, and environmental crime. This omission has been a source of frustration for some developing countries, particularly those in the Caribbean region, which have advocated for their inclusion in the jurisdiction of the ICC.4 China has also expressed concern that such selective jurisdiction limits the ability of the ICC to address crimes that have a significant impact on developing countries and diminishes its relevance in global justice.

2. Territorial Jurisdiction

The ICC’s territorial jurisdiction extends to crimes committed on the soil of state parties, even if the accused is a national of a non-party state. China criticizes this as a violation of the Vienna Convention on the Law of Treaties, which states: “A treaty does not create either obligations or rights for a third State without its consent.”5 For China, this sets a troubling precedent, as it risks undermining sovereign equality in international law. China upholds the principle of non-interference in state affairs as a cornerstone of international law.

Notwithstanding the stipulation in Article 12(1) of the Rome Statute that a State Party ”accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5,”6 it is evident that the precondition of consent is not absolute. Indeed, Article 12(2), provides that: In accordance with the stipulations set forth in Article 12(2), the Court may exercise its jurisdiction if one or more of the following States are parties to the Statute or have accepted the Court’s jurisdiction:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.7

In accordance with this paragraph, the Court may exercise jurisdiction over a person from a non-contracting country who has committed crimes, even in the absence of consent from their State, provided that the State where the crime was committed is a party to the Statute or is willing to submit itself to the jurisdiction of the ICC. Such an approach would be at odds with the long-established principle of the relative effectiveness of treaties, which has been universally acknowledged and adhered to by the international community.

3. Trigger Mechanism

In accordance with Article 13 of the Statute,8 the ICC’s commencement mechanism is primarily constituted by three main avenues: firstly, situations may be referred to the Court by States Parties; secondly, situations may be referred to the Prosecutor of the Court by the Security Council; and thirdly, the Prosecutor may initiate investigations proprio motu. In regard to the right of a State party to refer a situation, a non-State party is precluded from preventing another State party from referring a case to the ICC, even in the event that the suspect in question is a national of a non-State party. With regard to the right of the United Nations Security Council to refer a situation, it may concern either a State party to the Statute or a non-State party. In either case, the consent of the State in question is not required. The Prosecutor is empowered to investigate or prosecute offenses committed in the territory of a non-State party or by a national of a non-State party. This enables the jurisdiction of the ICC to be extended to nationals of non-States parties, thereby binding third parties. However, this is not contingent on the strict adherence to the voluntary acceptance of its jurisdiction by States, which limits the practical application of the principle of complementarity of its jurisdiction, because if the ICC decides that the national court is unwilling or unable to prosecute, the ICC Prosecutor gains the right to investigate the case, regardless of the state’s consent.

The Darfur situation in Sudan marked a pivotal moment in the ICC’s history, as it was the first case referred to the Court by the United Nations Security Council and the first formal investigation involving a non-State Party. Despite the ICC issuing an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes, crimes against humanity, and genocide, Sudan, as a non-State Party, refused to cooperate. Bashir continued to serve as president and travel internationally without facing arrest, even in State Parties to the Rome Statute. This non-compliance was supported by both the Arab League and the African Union, which criticized the ICC’s actions as undermining the sovereignty of African nations and urged that any future prosecution of African heads of state be coordinated with the African Union.9 This led to a temporary strain in relations between the ICC and African countries, highlighting tensions over jurisdictional authority and state sovereignty.

China abstained from voting on Security Council Resolution 1593, which referred the Darfur situation to the ICC. China raised concerns not only about the jurisdictional relationship between the Court and non-State Parties but also about the enforcement challenges related to the arrest warrant. Additionally, China emphasized that the Bashir case raises broader questions about the immunity of heads of state. The potential erosion of the traditional principle of immunity and the risk of sitting heads of state being subjected to judicial jurisdiction could have profound implications for national sovereignty.10 China argues that these developments warrant serious attention, as they may fundamentally alter the balance between international accountability and the respect for state sovereignty.

B. Admissibility

The principle of admissibility underpins the ICC’s jurisdiction, ensuring that the Court acts as a complementary institution to national judicial systems rather than supplanting them. Two critical components govern admissibility: the principle of complementarity and the gravity threshold. Together, these elements determine whether a case is appropriate for ICC intervention, yet they have been a focal point of criticism, particularly from non-party states such as China.

1. The Complementarity Principle and Sovereignty Concern

The principle of complementarity, as set out in the tenth preambular paragraph and in Article 1 of the Statute, precludes the Court from exercising its jurisdiction over a case once the State with jurisdiction over the case has initiated domestic judicial proceedings.11

This principle of complementarity of the ICC may appear to respect the primacy of domestic jurisdiction; however, its implied right of review by the ICC may be perceived as an infringement upon the sovereignty of other nations. Article 17 of the Statute suggests that the ICC may conduct reviews of ongoing judicial proceedings in national courts to ascertain whether a State’s judicial system is ‘unwilling’ or ‘unable’ to hold individuals criminally responsible.12 In other words, the ICC is empowered to assess and determine the criminal accountability of any State, including non-parties, for international crimes.13 The ICC is empowered to ascertain whether the proceedings conducted within the state in question are inconsistent with the objective of bringing the individual in question to justice, unduly prolonged, or not conducted in an independent or impartial manner. This is a basis for the ICC to exercise jurisdiction if it has determined that there has been improper behavior on the part of the domestic courts. This provision of the Statute undoubtedly transforms the ICC into a supranational world judicial institution, which is also in conflict with the principle of sovereignty upheld by the Chinese Government. According to the fundamental theory of modern international law, there was no supranational judicial body above a sovereign State.

Furthermore, developing countries, with limited judicial resources or infrastructure, are more likely to be deemed “unable” to prosecute effectively. This creates a scenario where such states are disproportionately subject to ICC scrutiny, potentially undermining their sovereignty and eroding confidence in their legal systems. For example, the ICC’s investigations into Sudan and Uganda have illustrated how states with weaker legal institutions become frequent subjects of ICC proceedings, reinforcing perceptions of judicial inequity.

Lastly, China critiques the ICC’s reliance on Western legal norms in applying complementarity. Legal traditions differ significantly across regions, and the ICC’s framework often imposes standards that align with Western jurisprudence, ignoring cultural and legal diversity. This approach risks alienating states with alternative legal traditions, further undermining the Court’s universal legitimacy.

2. Gravity Threshold and Prosecutor’s Power

The gravity threshold is another key element of admissibility, requiring the Prosecutor to demonstrate that a case involves crimes of sufficient gravity to warrant ICC attention. While intended to limit the Court’s focus to the most serious crimes, the threshold grants significant discretion to the Prosecutor. China argues that this discretion lacks transparency and opens the door to politically motivated decisions. For instance, the ICC’s decision to pursue investigations in Afghanistan and Ukraine has been criticized for aligning with broader geopolitical interests while avoiding comparable scrutiny of Western-backed conflicts. This selective application of the gravity standard raises concerns about the ICC’s impartiality and reinforces perceptions of political bias.

In summary, while the principles of complementarity and gravity are fundamental to the ICC’s mandate, their implementation disproportionately affects developing states and reflects an implicit prioritization of Western legal norms. For China, these issues highlight the need for greater sensitivity to sovereignty, legal diversity, and transparency in the ICC’s admissibility criteria.

C. The Role of United Nations Security Council

The United Nations Security Council (S.C.) holds significant influence over the ICC’s jurisdiction through its powers to refer cases and defer investigations under the Rome Statute. While intended to integrate international justice with global peace and security efforts, these powers have frequently been criticized for politicizing the ICC’s operations, favoring the interests of powerful states, and undermining the Court’s impartiality.

1. Selective Referrals

The S.C.’s referral power allows it to bring situations before the ICC, including those involving non-party states, as seen in the cases of Sudan (Darfur) and Libya. These referrals extended the ICC’s jurisdiction to non-signatories, overriding principles of state consent. However, the S.C. has often refrained from acting in politically sensitive cases involving powerful states or their allies. For example, no action has been taken regarding U.S. actions in Afghanistan or allegations of war crimes in Israel/Palestine, despite repeated calls for accountability. Such selectivity undermines the ICC’s neutrality, creating a perception that it serves Western geopolitical interests rather than acting as a truly impartial judicial body.

Recent S.C. actions further highlight this issue. On November 20, 2023, the United States vetoed a resolution calling for a ceasefire in Gaza, which aimed to halt the ongoing conflict between Israel and Hamas. This veto drew sharp criticism, including from China, whose representative at the U.N. described the decision as a significant blow to the authority of the S.C. and international law. The U.S. veto left the ceasefire resolution with only fourteen supporting votes, including those from the UK and France. Malta’s U.N. representative, Vanessa Frazier, expressed regret that “due to the use of the veto, the S.C. once again failed to fulfill its responsibility to maintain international peace and security.”14 The Chinese representative, Ambassador Fu Cong, stated that the U.S. veto had “destroyed the Gaza people’s last hope for survival” and pushed them “further into darkness and despair.”15 This incident underscores how the S.C.’s selective actions diminish its credibility and reinforce skepticism about its alignment with the ICC’s mission.

2. Deferral Power

Under Article 16 of the Rome Statute, the S.C. can defer ICC investigations for 12-month renewable periods.16 While designed to balance judicial and political considerations, this power has been criticized for giving the P5 (the five permanent members of the S.C.) excessive leverage to protect their interests or those of their allies. For instance, a deferral could be used to shield nationals of powerful states from prosecution or delay politically inconvenient investigations indefinitely. Even though China is one of the P5 members, such influence reinforces the perception that the ICC is a tool of major powers, further eroding trust among non-party states like China.

In conclusion, the S.C.’s role in ICC operations, particularly through selective referrals and deferrals, highlights the intersection of politics and international justice. Incidents like the Gaza ceasefire veto and the focus on weaker states underscore concerns about bias and double standards. For China, these actions affirm longstanding fears that the ICC operates under Western influence rather than as a neutral, independent institution. Addressing these issues is critical for the ICC to regain credibility and fulfill its mandate equitably.

D. Alleged Western Bias and Selective Justice

The ICC has been the subject of considerable criticism for displaying a tendency towards political bias and engaging in selective justice, particularly in its focus on weaker states while avoiding scrutiny of powerful nations or their allies. These patterns have prompted questions about the Court’s impartiality and its role in the international legal system.

In its formative years, the ICC demonstrated a marked predilection for pursuing cases against African states, with proceedings involving Sudan, Kenya, and the Democratic Republic of Congo (DRC) occupying a disproportionate share of its docket. This focus on Africa gave rise to widespread accusations of “neo-colonial justice”, particularly as similar crimes in other regions were not addressed. The case of Uhuru Kenyatta, Kenya’s sitting president at the time, exemplifies this criticism. Kenyatta’s case ultimately collapsed due to insufficient evidence, reinforcing perceptions that the ICC targeted high-profile figures in weaker states without adequate grounds for prosecution. Such patterns have undermined the Court’s credibility, particularly among non-Western states, and have alienated key stakeholders in global justice.

In recent years, the ICC has shifted its focus beyond Africa, with investigations into Russia’s actions in Ukraine marking a notable expansion of its remit. While this indicates a broader application of its jurisdiction, critics argue that the Court’s approach remains selective. For instance, the ICC has been swift to issue arrest warrants against Russian officials for alleged war crimes but has refrained from similar scrutiny of Western-backed actions, such as the Saudi-led coalition’s involvement in Yemen. This disparity underscores allegations of political bias, as the ICC appears more willing to confront adversaries of powerful Western nations while avoiding cases that might implicate their allies.

Chinese scholars argue that the selective justice of the ICC arises primarily from two sources: institutional expansion and political intervention.17 Institutionally, the issue stems from internal problems such as the legislative design of the Rome Statute, the wide discretion granted to judges and prosecutors in the execution of their roles, and the financial constraints of the institution. Politically, external factors, including the powers of the U.N. Security Council, the treaty-based nature of state participation, and the influence of other entities and non-governmental organizations, exacerbate the problem.

Of particular concern is the expansiveness of the Rome Statute’s design and the potential for abuse of discretion by judges and prosecutors, which undermine the Court’s legitimacy. Additionally, the political intervention of Western powers in the U.N. Security Council, coupled with the selective participation of states in the ICC, directly erodes its credibility. These factors collectively diminish confidence in the Court’s impartiality, further damaging the perception of selective justice and international judicial fairness.

E. Hypothetical Risks to China

China faces considerable risks from potential ICC actions that could target its domestic policies or geopolitical disputes, even as a non-party state. While China’s position as a permanent member of the U.N. Security Council affords it the right to veto any adverse ICC referrals, this protection is not absolute. Political dynamics within the Council could shift, especially under intense international pressure, compelling China to repeatedly exercise its veto. Such actions could potentially result in China being diplomatically isolated, its global reputation being damaged, and its foreign relations being complicated. Additionally, lobbying among non-permanent Council members and informal alliances could create scenarios where China’s influence is challenged, raising concerns about indirect risks to its sovereignty.

The ICC’s jurisdiction, which can also be extended through U.N. Security Council referrals or investigations involving crimes on the territory of state parties, creates a pathway for external scrutiny of China’s actions. Such risks are heightened by the Court’s perceived susceptibility to political influence, particularly from Western powers, and its focus on issues like human rights and territorial disputes, which are highly sensitive for China. These scenarios underscore Beijing’s apprehension that the ICC could undermine its sovereignty and legal independence under the guise of international justice.

1. Allegations of Human Rights Abuses

Western countries have long argued that China should face continued international scrutiny for alleged human rights violations, particularly in regions such as Xinjiang and Tibet. Hypothetical ICC investigations into these matters could frame China’s domestic policies as international crimes, despite Beijing’s consistent rejection of such accusations and its emphasis on non-interference in internal affairs. The extension of ICC jurisdiction into non-party states through Security Council mechanisms further exacerbates these fears.

2. Disputes in the South China Sea and Taiwan

China’s territorial and sovereignty disputes, including those in the South China Sea and over Taiwan, present additional vulnerabilities. Hypothetical ICC investigations into actions arising from these disputes, such as military operations or alleged violations of international law, could significantly undermine China’s sovereignty. Such scenarios would not only challenge China’s legal positions on these matters but also risk politicizing sensitive geopolitical conflicts.

For China, such risks confirm its concerns that the ICC operates as a political tool rather than a fair and impartial judicial body. The potential for selective investigations, driven by geopolitical interests or pressure from Western powers, undermines trust in the ICC’s legitimacy. These fears reinforce China’s preference for resolving disputes through bilateral or regional mechanisms, rather than through institutions it perceives as subject to political manipulation.

III. Recommendations from China’s Perspective

China’s critiques of the ICC are accompanied by proposals for reforms designed to address structural flaws, reduce politicization, and ensure greater fairness and impartiality. These recommendations emphasize respect for state sovereignty, equitable justice, and the need for a more universally accepted and effective international justice system.

A. Decoupling the ICC from the U.N. Security Council

China advocates for reducing the influence of the S.C. on the ICC, particularly P5 in referrals and deferrals. The current framework under Article 16 allows powerful nations to shape ICC actions through selective interventions, compromising the Court’s independence. For instance, the S.C.’s referrals of Darfur (Sudan) and Libya aligned with Western geopolitical interests, while similar action was absent in cases involving U.S. allies. Decoupling the ICC from the S.C. by creating a broader multilateral body or independent review mechanism for authorizing referrals would mitigate this imbalance and ensure decisions are grounded in legal merit rather than political considerations.

B. Equal Focus on Western States

China also underscores the necessity for the ICC to address powerful non-party states, such as the United States, to enhance its credibility. The ICC’s focus on weaker states, particularly in Africa, and its lack of scrutiny into Western-backed conflicts, such as those in Iraq and Afghanistan, have led to accusations of double standards. Introducing mechanisms to review and investigate actions by non-party states, especially when they impact state parties or involve grave international crimes, would reinforce the ICC’s impartiality and bolster its legitimacy as a universal judicial body.

C. Expanding Subject-Matter Jurisdiction

China also proposes expanding the ICC’s subject-matter jurisdiction to address crimes that are of significant concern to developing countries. These include drug crimes, international terrorist crimes, transnational organized crimes, and international environmental crimes. In recent years, the Chinese environmental law community has increasingly focused on the ICC’s stance on the potential criminalization of “ecocide.”18

Currently, the ICC’s jurisdiction is limited to genocide, war crimes, crimes against humanity, and the crime of aggression. While these are undoubtedly critical, they do not encompass other pressing global threats that disproportionately affect developing nations. Expanding the ICC’s jurisdiction would reflect a more inclusive understanding of global justice and align the Court’s focus with the priorities of a broader range of states. For instance, transnational drug trafficking and terrorism have devastating impacts on the security and stability of developing regions, yet international mechanisms for addressing these crimes remain fragmented.

Such a reform would not only increase the ICC’s legitimacy but also foster greater participation from developing countries, many of which currently view the Court as biased toward issues affecting Western interests. It would underscore the ICC’s commitment to equitable justice by addressing a broader spectrum of crimes that impact humanity as a whole.

D. Greater Transparency in Prosecutorial Decisions

To counter concerns about selective justice and political bias, China advocates for greater transparency in prosecutorial decision-making. The significant discretion currently afforded to the ICC Prosecutor in determining admissibility, particularly regarding the gravity threshold and complementarity principle, has fueled allegations of partiality. Establishing clear, publicly accessible guidelines for assessing these criteria and instituting independent oversight of controversial prosecutorial decisions would enhance the ICC’s impartiality and trustworthiness.

E. Promoting Regional Solutions

China further emphasizes the importance of regional solutions, such as the African Union’s hybrid courts, in addressing international crimes. Regional mechanisms, with their deeper understanding of local contexts, foster greater ownership of justice processes and respect for state sovereignty. For example, the African Union has proposed courts tailored to its member states’ unique political and cultural realities. Supporting such initiatives through financial and technical assistance and integrating them into the global justice framework as complementary to the ICC would strengthen the overall system of international accountability. As the Chinese proverb says, it is better to teach a man to fish than to give him a fish. On issues such as Darfur, China advocates for implementing consensus-based solutions involving the United Nations, the African Union, and local governments, highlighting the value of regional cooperation and diplomatic resolution.19

In conclusion, China’s proposed reforms aim to address key structural deficiencies in the ICC by reducing political interference, ensuring equitable case selection, and promoting regional accountability mechanisms. If adopted, these measures would enhance the ICC’s legitimacy, align it more closely with its mission of universal justice, and foster greater participation and trust among non-party states.

IV. Conclusion

In conclusion, the ICC’s operations, particularly its case selection process, reveal deep-seated challenges that go beyond legal considerations. From China’s perspective, the ICC’s actions often reflect a politicized approach that undermines state sovereignty and disproportionately impacts non-Western nations. By critically examining jurisdiction, admissibility, and the role of the U.N. Security Council, this comment highlights how these structural and operational flaws contribute to perceptions of bias and selective justice.

China’s critiques and reform proposals underscore the importance of addressing these issues to restore the ICC’s credibility as a truly impartial global judicial institution. Decoupling the Court from political influences, ensuring equitable scrutiny of all states, promoting transparency, and fostering regional solutions represent meaningful steps toward achieving a more just and effective international legal system. Only through such reforms can the ICC fulfill its mandate to combat impunity while respecting the diversity and sovereignty of the global community.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   These concerns were elaborated in detail by Ambassador Wang Guangya, head of the Chinese delegation at the 1998 Rome Diplomatic Conference on the establishment of the International Criminal Court. Wang Guangya, Interview, Xinhua News Agency, Jul. 1998, available online; see also Dai Yuzhong (戴玉忠), Should China Join the International Criminal Court, Part 1, China Crim. Just. (Apr. 10, 2009) (China), available online.

   Five concise reasons why China does not join the International Criminal Court:

   • Universal Jurisdiction: China opposes the Rome Statute ’s universal jurisdiction, arguing it lacks voluntary state consent and contravenes the Vienna Convention on the Law of Treaties.
   • War Crimes Definition: China rejects extending “war crimes” to domestic conflicts, claiming it exceeds customary international law.
   • Security Council Role: China asserts that aggression, being a state act, must first be determined by the Security Council.
   • Prosecutor’s Powers: China fears the prosecutor’s expansive investigative authority could facilitate interference in domestic affairs.
   • Crimes Against Humanity: China insists “crimes against humanity” should apply only during wartime, as per customary international law.
   ↩
2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 8, available online. ↩

3. 3.

   See Yaling Pan (潘亚玲), China’s Non-Interference Diplomacy: From Defensive Advocacy to Participatory Advocacy, 9 J. World Econ. and Pol. 45 (2012) (China), available online.

   (The principle of non-interference refers to a foreign policy of not interfering in each other’s internal affairs for economic, political or ideological reasons. It was first proposed by China at the Bandung Conference in 1955. In recent years, with the development of international human rights norms, the concept of security threats and the concept of “responsibility to protect”, this principle has been challenged and questioned; but Chinese scholars believe that, through these concepts, the Western international community led by the United States and Europe has found increasing legitimacy support for various forms of humanitarian intervention, especially humanitarian intervention authorized by the U.N. Security Council). ↩

4. 4.

   Guiying Yu (喻贵英), An Analysis of International Criminal Law Enforcement Models, 6 J. Nw. U. Pol. Sci. & L. 80 (1998) (China), paywall, doi. ↩

5. 5.

   Vienna Convention on the Law of Treaties, Art. 34, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

6. 6.

   Rome Statute, supra note 2, at Art. 12(1). ↩

7. 7.

   Id. Art. 12(2). ↩

8. 8.

   Id. Art. 13. ↩

9. 9.

   International Law View (国际法大视野), Status of the International Criminal Court’s Arrest Warrant Against Former Sudanese President Bashir, NetEase (Aug. 12, 2023, 9:21 PM) (China), available online. ↩

10. 10.

    Yang Jiao (焦阳), A Study of Issues on the Jurisdiction of the International Criminal Court over Non Contracting State Nationals, 40 J. Jinzhong U. 69–73 (2023) (China), paywall. ↩

11. 11.

    Rome Statute, supra note 2, at Preamble, Art. 1. ↩

12. 12.

    Id. Art. 13. ↩

13. 13.

    Xiumei Wang (王秀梅), 从苏丹情势分析国际刑事法院管辖权的补充性原则 [Analysis of the Principle of Complementarity of the Jurisdiction of the International Criminal Court from the Perspective of Sudan], 6 Modern Jurisprudence 181 (2005) (China), paywall. ↩

14. 14.

    Yi Wang (王逸) & Juecheng Zhao (赵觉珵), The International Criminal Court Issues Arrest Warrant for Netanyahu, Global Times, Nov. 22, 2024, (China), paywall, doi. ↩

15. 15.

    Id. ↩

16. 16.

    Rome Statute, supra note 2, at Art. 16. ↩

17. 17.

    Yi Wang (王毅), On the Selective Justice of the International Criminal Court (2023) (Unpublished Ph.D. Dissertation, Liaoning University) (China), paywall, doi. ↩

18. 18.

    Fu Ziluo (傅子洛) & Liu Dan (刘丹), The Fifth International Crime?—Theoretical Source and Legislative Response of “Ecocide”, 4 JBOS 25 (2023) (China), paywall. ↩

19. 19.

    Liu Jianchao, Spokesperson for China Foreign Ministry, Reply to Questions on the Security Council’s Adoption of the Resolution on the Darfur Issue (Aug. 2, 2007) (China), available online. ↩

II. Main Actors Exercising Political Pressures on the ICC

Several actors exert political pressure on the ICC and are keys elements that contribute in making the ICC a political institution, namely the States Parties, Non-States Parties, and the Prosecutor.

A. States Parties

States Parties to the ICC are one of the actors that can exercise political pressures in order to influence the ICC for their political ends. Among the various tools available to exercise political pressure, Article 14 of the Rome Statute enables a State Party to refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. Under this article, any State Party to the Rome Statute can request the ICC to investigate crimes committed either on its own territory or by its nationals, if those crimes have not yet been prosecuted at the national level. This power enables states to influence politically which situations the ICC prioritizes and pursues. For example, if a State Party believes that grave crimes such as war crimes, genocide, crimes against humanity, or aggression have been committed in another state or by specific individuals, it can refer the matter to the ICC for investigation. In some cases, states may use this referral process for political reasons, such as targeting a rival or a specific group, or to gain international support for their actions. Through Article 14, States Parties can shape the scope and direction of the ICC’s judicial activity by selecting which situations are brought before the Court, giving them an important role in determining the Court’s caseload and focus.

Based upon this Article, some States Parties have referred situations in their own country to the ICC only for political reasons. This has been one of the criticism made for the self referral made by the President Kabila of the Democratic Republic of Congo (DRC) who has referred the situation on his country’s own territory. Some observers and critics argue that the timing and context of the referral, as well as the ICC’s focus on certain individuals, could have had political motivations and that this referral was made mainly to side line his rivals over the presidency.6 Indeed, the DRC government led by President Joseph Kabila referred its own situation to the ICC in 2004, after a prolonged period of brutal conflict that had devastated the country during the Second Congo War (1998–2003) and the subsequent conflicts that followed. Upon receiving the referral from the DRC, the Prosecutor opened an investigation into the situation, focusing on the crimes committed during the Ituri conflict in the northeastern region of the DRC. The investigation focused on war crimes, including the use of child soldiers, sexual violence, mass killings, and the recruitment of child soldiers. The ICC’s first investigation in the DRC led to the arrest and prosecution of several key figures, including Thomas Lubanga, Germain Katanga, and Mathew Ngudjolo Chui, all of whom were involved in the violence in Ituri. This investigation has led to the ICC’s first conviction in July 2012 of Thomas Lubanga, the leader of the Union of Congolese Patriots (UPC) who was found guilty of using child soldiers and was sentenced to fourteen years in prison. Despite this, critics have averred that the referral of the ICC was made by the DRC’s government for political reasons. According to William W. Burke-White, this referral was likely to reflect a strategical political calculation as Kabila was not directly involved in the Ituri region’s conflict contrary to its opponents in the presidential elections.7 Moreover, since prosecuting opponents at a national level seemed politically dangerous, some considered that self-referral was the most viable solution for Kabila, without the country having to bear the national political costs of the proceedings.8

Similarly to the situation in DRC, the referral of Uganda to the ICC was also highly controversial and viewed as a political measure by the government. In 2004, the government of president Yoweri Museveni referred the situation of its country to the ICC, specifically focusing on the Lord’s Resistance Army (LRA) and its leader Joseph Kony, in relation to atrocities committed in the northern regions of Uganda. The LRA, led by Joseph Kony, had been waging an insurgency against the Ugandan government since 1987, primarily in the northern and eastern regions of Uganda. The group was infamous for committing crimes, including abductions, child soldier recruitment, and mass killings. However, the Ugandan military was also accused of committing war crimes and crimes against humanity during the conflict, particularly against civilians in northern Uganda. Even if crimes were committed on both sides, the referral by the government of president Yoweri Museveni referred the conflict with a focus only on the LRA, rather than the conflict as a whole.9 This referral has been the subject of significant criticism as it disproportionately targeted the LRA and its leaders, while failing to point out crimes committed by the Ugandan military. Despite this allegation, the ICC focused almost exclusively on the LRA and its leaders. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen. In 2021, Ongwen was convicted and sentenced to twenty-five years in prison for war crimes and crimes against humanity. Critics argued that this selective justice was problematic because it allowed the Ugandan government, and its military, to escape scrutiny for their own violations of the Rome Statute.10 Civil society organizations and critics questioned why President Yoweri Museveni’s government or army was not held to account for its role in the conflict.11 Indeed, the Ugandan army has committed grave crimes as well but only members of the LRA has been prosecuted. By doing so, the ICC has aligned with the referral made by the government of Uganda who seems to have used the referral to send a political message to his adversaries.12

In addition to the referral of a case, others means can be used by States Parties to influence the ICC in a political manner. More precisely, States Parties can exert influence over the ICC through their financially contribution to the ICC, both mandatory and voluntary. Indeed, each State Party contributes a certain amount to the ICC’s regular budget based on its gross national income, meaning that wealthier states contribute more to the budget. In the Assembly of States Parties (ASP), all States Parties have one vote, regardless of their financial contributions. However, larger contributors may have more influence in budgetary discussions or in deciding the priorities for the Court’s operations since voluntary contributions can be made through Article 16 of the Rome Statute. Indeed, this Article allows not only States Parties but also governments, international organizations, individuals, corporations, and other entities to provide additional funds. Thus, Article 116 sets the framework for when and how the ICC can receive additional funds beyond its regular budget, but a limit is imposed as it must be done “in accordance with relevant criteria adopted by the Assembly of States Parties.” The Financial Regulation 7.2 specifies that they may only be accepted by the Registrar “provided that they are consistent with the nature and functions of the Court.”13 This guidance however provides little criteria to rely on in order to draw the line between accepting or refusing voluntary contributions. Thus, a States Party or another entity can provide extra financial support to the ICC, beyond their regular financial obligations, to help ensure that the Court can function effectively if they comply with the above requirement. However, this practice can potentially influence the opinion of the ICC. As mentioned by William Schabas, both partial and full reliance on voluntary contributions make international criminal courts and tribunals vulnerable to inappropriate influences and even manipulation, which is incompatible with judicial bodies.14 This concern that voluntary contribution might influence the Court has been addressed by various authors.15 In an opinion, Russia, though the Ministry of Foreign Affairs of the Russian Federation, called into question the independence of the ICC because of the possibility to receive additional funds as this leads, according to the Opinion, to an unfair advantage to the interested party who interferes with the activity of the Court.16

Lastly, the election of the Prosecutor and the judges can be viewed as political and influenced by States Parties. Although the election of the ICC’s judges and Prosecutor is not directly influenced by the States Parties, the vast majority of judges and prosecutors have previously served as government officials or diplomatic positions for their countries, which calls into question their impartiality and legal knowledge to serve in this position.17

B. Non-States Parties

In addition to the States Parties, Non-States Parties can exert political pressure on the ICC, namely the Security Council and other Non-States Parties.

1. The Security Council

As well as State Parties, the United Nations Security Council can refer a situation to the ICC under Article 13(b) of the Rome Statute. According to this provision, the Security Council can refer situations involving alleged crimes within the Court’s jurisdiction to the ICC, even if the country where the crimes occurred is not a State Party to the Rome Statute. In such cases, the ICC has the authority to investigate and prosecute the individuals responsible for these crimes. Importantly, Article 13(b) grants the Security Council the power to bypass the need for State consent and refer situations from anywhere in the world to the Court when they determine the existence of a threat against the peace, breach of the peace, or acts of aggression. This referral mechanism reflects the Security Council’s unique role in the international legal system, ensuring that the ICC can address egregious crimes even in situations where the involved states are not willing or able to pursue justice themselves. However, this referral process also brings political considerations into play, as the five permanent members of the Security Council (the U.S., China, Russia, France, and the UK) hold veto power and can block referrals to the ICC, which raises concerns about the Court’s independence and potential for political pressures. Similarly, the fact that three of the five permanent members are not States Parties to the ICC and yet have the ability to refer situations to the ICC, while avoiding the ICC’s jurisdiction themselves, has emphasized this idea that the ICC is politically influenced.18

The first referral of a Non-State Party to the ICC by the Security Council is the conflict in Sudan. On March 31, 2005, the Security Council referred the Situation in Darfur to the ICC under Resolution 1593. This referral was of significance importance as Sudan was not a party to the Rome Statute, meaning that the ICC did not automatically have jurisdiction over crimes committed in Sudan. However, the Security Council, acting under its powers used its authority to refer the situation to the ICC, allowing the Court to investigate and prosecute crimes committed during this conflict. Resolution 1593 was passed with eleven votes in favor and four abstentions from China, Algeria, Brazil and the United States.19 The support of this resolution from Russia, Philippines, and Tanzania who are not States Parties to the ICC was criticized as these countries do not accept the jurisdiction of the ICC.20 This justification was also held by the U.S. at that time who did not vote in favor of the resolution as they fundamentally object to the view that the Court should be able to exercise jurisdiction over the nationals, including government officials, of States not party to the Rome Statute.21 On other hand, because of the need for the international community to work together and because U.S. nationals were not threaten of prosecution, the U.S. did not oppose the resolution.22

Nevertheless, the position of the U.S. was much different on the situation in Libya in 2011. The situation in Libya escalated in 2011 during the Libyan Civil War, when widespread protests against the regime of Muammar Gaddafi turned into violent clashes between government forces and opposition groups. As the conflict worsened, government forces used violence to suppress protests, including violent crackdowns, torture, and mass killings of civilians. The United Nations Security Council responded by referring the situation in Libya to the ICC under Resolution 1970, passed on February 26, 2011. The Libya referral under Resolution 1970 was the second time the Security Council referred a situation to the ICC involving a country that was not a party to the Rome Statute.23 This Resolution was supported by five States that were not parties to the ICC and do not accept its jurisdiction: Russia, China, India, Lebanon, and the United States. This support by a Non-State Party has been criticized as a blatant hypocrisy considering that there is nothing positive about the U.S. forcing Libya to accept the jurisdiction of the ICC, when it refuses to accept the jurisdiction of the ICC itself.24 Others have accused the U.S. of referring the situation to the ICC in order to secure a regime change, particularly to regime friendlier to the United States.25 While the referral to Libya to the ICC complied with the provision of the Rome Statute, this was viewed by many as an example of powerful States forcing another State to be subject to a jurisdiction that it did not accept itself for political reasons.

2. Other Non-States Parties

In addition to the Security Council, Non-States Parties also exert political pressure on the ICC by refusing to cooperate or take actions that can assist the Court. Indeed, cooperation from both States Parties and Non-States Parties is critical for the ICC in order to obtain evidence, prosecute arrest warrants, and protect witnesses. Yet, some powerful Non-States Parties have refused to cooperate due to political reasons or concerns about national sovereignty. This has been the case of the U.S. who has agreed in some instances to cooperate with the Court by providing information or signals intelligence to the ICC but this cooperation has been limited. However, in other instances, the U.S. though the Trump administration has shown its opposition and resistance to the ICC, namely with the Executive Order in 2020.26 Following the decision by the Prosecutor to open an investigation for the situation in Afghanistan, which could include evidence of torture by U.S. forces, President Trump issued an Executive Order that imposed a series of sanctions on the Prosecutor and prohibits any assistance to the ICC. This political pressure on the ICC can be viewed as a strategical pressure on the ICC to deter the Court from pursuing the investigation.

Other countries have also refused to cooperate with the ICC for political reasons such as Russia who withdrew from the Rome Statute in 2016. In relation to its conflict with Ukraine, Russia has refused its jurisdiction and furnished no assistance to the ICC. In a recent opinion, Russia’s Foreign Ministry reiterated its refusal to accept the ICC’s legal authority, describing it as a politicized organization.27 By doing so, Russia refused to cooperate and applied an external political pressure on the ICC.

C. The Prosecutor

In addition to the previous actors, the Prosecutor of the ICC is one of the main agents that play an important role in the ICC’s operations and can contribute to the ICC being politically motivated.

In principle, the Rome Statute established the full independence of the Prosecutor. Indeed, Article 42(1) recognized that the Prosecutor acts independently and impartially as a separate organ of the Court in fulfilling its duties. This means that the Prosecutor should not be subject to direction or influence from external sources, including States Parties or other political entities. Still, according to this Article, the Prosecutor has full authority over the management and administration of the Office, including the staff, facilities, and other resources. In order to act fully independently this Article also prevents the Prosecutor from participating in any matter in which its impartiality might reasonably be doubted on any ground. If such circumstance happens, the Prosecutor must be disqualified from a case if she/he has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

As a corollary to the Prosecutor’s independence, ICC Prosecutors have considerable discretionary power, which can lead them to act politically or to take into account political considerations. This discretionary power is reflected in Article 15, which outlines the Prosecutor’s power to initiate investigations. According to Article 15(1), the Prosecutor can initiate investigations proprio motu, meaning on their own initiative, but only when there is reasonable basis to believe that a crime within the jurisdiction of the Court has been committed. The Prosecutor can also begin an investigation based on a referral from a State Party or the U.N. Security Council but, even if this situation, the Prosecutor must determine whether the situation merits investigation or particular individuals should be charged. If the Prosecutor decides that there is no sufficient basis for the prosecution, they must inform the Pre-Trial Chamber, the State making the referral, or the Security Council and explain the reasons for that decision.

In a case in which the Prosecutor wants to initiate an investigation proprio motu, Article 15(2) specifies that he must submit a request to the Pre-Trial Chamber for approval. This authorization by the Pre-Trial Chamber is a key safeguard, as the Chamber must confirm that the request meets the legal criteria and the situation is within the Court’s jurisdiction. The Pre-Trial Chamber does not have the power to block the investigation based on the Prosecutor’s discretion, but it acts as a check to ensure that the Prosecutor’s discretion is exercised in accordance with the law. The decision of the Pre-Trial Chamber can be appealed by the Prosecutor, in order to ensure that the Prosecutor’s discretion is not completely subject to the Chamber’s approval.

This significant discretion power is also regulated through Article 53 that sets out guidelines and criteria that the Prosecutor must consider when deciding whether to initiate an investigation or prosecution, particularly: the information available, the admissibility of the case, the gravity of the crime, the interests of victims, and the interests of justice.

In the same way, Article 17 suggests a number of factors that must be taken into consideration when deciding to prosecute. Following this, a case is not admissible

1. if it is being investigated or prosecuted by a state with jurisdiction over it, “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”;

2. if the case has been investigated by a state with jurisdiction that has decided not to prosecute the person concerned, “unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute”; or

3. if the person concerned has already been tried for the relevant conduct, and a trial by the Court is not permitted under Article 20(3).

Importantly, Article 17 also states that a case is inadmissible if it is “not of sufficient gravity to justify further action by the Court.”

In addition to these factors, the Rome Statute also establishes the duty of the Prosecutor when there is an investigation. Article 54 states that the Prosecutor must investigate incriminating and exonerating circumstances equally, meaning that there is a duty of impartiality. Thus, if there is an investigation, the Prosecutor must include collecting evidence both for and against the suspects, in line with the principle of a fair trial.

This discretionary power of the Prosecutor goes even further than the investigation stage as the Prosecutor is responsible for presenting and choosing the charges against the person charged in front of the Pre-Trial Chamber. Article 61(5) provides that, during the hearing, the Prosecutor must support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. For doing so, the Prosecutor can rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial. This Article also mentioned that, before the hearing, the Prosecutor has the possibility to continue the investigation and amend or withdraw any charges. If so, the person shall be given reasonable notice before the hearing of any amendment or withdrawal of charges and the Prosecutor must notify the Pre-Trial Chamber of the reasons for the withdrawal. Even if the final decisions come to the Pre-Trial Chamber, who reviews the charges and confirms them before the case can proceed to trial, the Prosecutor has significant discretion in presenting charges and deciding how the case proceeds after an investigation is complete.

As may be evident from the above, the Prosecutor has a high degree of discretion and flexibility during the investigation stage as they have the ability to investigate or prosecute, to decline prosecution and can even, in respect to the Rome Statute, decide how to investigate. The Prosecutor has, for instance, the ability to choose how many resources can be committed to one situation and may decide whether or not to seek an arrest warrant. Given this flexibility, critics have stated that the Prosecutor is vulnerable to political pressure and contribute to the politicization of the ICC.28

Indeed, despite the standard that the Rome Statute sets for an independent and objective Prosecutor, recent examples have shown that the Prosecutor can be used for serving a political purpose. Even if most of the scholars and commentators agree that the ICC has limited resources and is facing challenges in case selection, critics argue that the way in which the Prosecutor exercises its discretion in initiating investigations, selecting cases, and pursuing prosecutions can be influenced by political considerations or other external factors, and may not always align with the principles of justice.29 In particular, William Schabas argued that the Prosecutor enables States Parties and the Security Council to control the selection of situations and cases, which prevents the Prosecutor from exercise their proprio motu power.30 Thus, prosecutions focus only on one side in the conflict and decline to investigate other situations. This selecting process has been subject to disagreements and critics. In a Dissenting Opinion, Judge Kaul reminds us that there are international crimes subject to the ICC and ordinary crimes punishable under domestic law. Based on this, he considered that the situation in Kenya fell with the competence of the domestic courts and that the crimes did not amount to crimes against humanity.31

That said, while designed to be an independent judicial body, the ICC is not entirely insulated from political pressure. Indeed, the ICC is facing multiple political pressures from States Parties, Non-State Parties, and the Prosecutors.

III. The Risk of the ICC Being Political: A Battle Between Legitimacy v. Politics

Given the large number of actors mentioned above that try to use the ICC for their political ends, the ICC is facing important criticism regarding its political implications.

As a legal institution, the risk of the ICC being perceived as political is that it loses its legitimacy. Indeed, acting in a political way can undermine the ICC’s commitment to the impartiality of the rule of law, which is essential to the tribunal’s legitimacy and, in turn, its effectiveness.32 The legitimacy of the ICC is rooted in its ability to function as an impartial, independent judicial body focused on delivering justice and accountability for the most serious crimes based on the rule of law, regardless of political considerations. When the Court is seen as politically driven or influenced, it risks compromising its core principles of neutrality, independence, and fairness. The legitimacy of the ICC is thus an essential element in order to achieve the goal of the ICC which is to end impunity for the most serious crimes. In order to be perceived as legitimate, the ICC would need to refuse political pressures and, thus, could be seen as credible, fair, and impartial. For these reasons, the ICC has always refused to recognize being a political institution. According to Michael J. Struett, pretending to rely solely on the rule of law ensures the ICC is dishonest but it “ensures its future integrity as an institution guided by positive international law.”33

In addition, some scholars argue that international criminal trials are in essence a political process.34 International criminal trials often reflect geopolitical dynamics and historical relationships between states. Indeed, according to the author Marieke de Hoon, implementing an international criminal court involves management, choices and prioritization of needs and interests from various actors and this choice contributes in making the institution political.35 In other words, criminal courts are political because they prioritize what should be adjudicated in the eyes of the world and in pursuit of “global justice”.36 Thus, to a certain degree, every court is political as they involve questions of social power, legislative choice, prosecutorial discretion, and judicial interpretation. However, international criminal trials take place in a particular context that cannot avoid taking a political stance.

Regarding the ICC in particular, the Court is indeed the result of a political decision by States Parties who decided to create this institution. Some considered that the ICC cannot depart or disengage from its political implications. Indeed, it would be difficult to disengage the ICC completely from politics, since its existence is a political one. For Allen S. Weiner, it is not an issue if international criminal courts in general, and prosecutors in particular, do, in some cases, use political judgments and develop their strategies in order to take into consideration the geopolitical context.37 According to this author, international criminal courts made judgements with political considerations in mind and the political environment affects international prosecutors’ decisions.38

Despite this intersection of politics with the Court, the rule of law remains of particular importance and courts tends to be both political and legal bodies. This particular nature rendered difficult for these courts, like the ICC, to gain legitimacy. Thus, the ICC is facing the challenge of enhancing its institutional status, legitimacy, and effectiveness in the international system. The ICC’s legitimacy is not only essential for ensuring justice in individual cases, but also for maintaining the overall credibility of the international justice system. Indeed, by losing its legitimacy, the Court might lose the cooperation of states, either they are States Parties or Non-State Parties. More precisely, the ICC has faced a range of reactions and opposition particularly from African countries, with some expressing strong support for the Court’s mandate and others criticizing its operations and impartiality. These reactions are often accusing the Court to be driven by political considerations. Many criticized the Court for its perceived bias and its focus on African leaders. To date, the ICC has conducted investigations into countries across the globe, but it is true that a significant portion of its focus on African nations such as Sudan, DRC, Central African Republic, Uganda, Kenya, Ivory Coast, Libya, Mali […] The Court’s focus on African countries has thus sparked criticism, particularly because many of its early cases came from referrals or situations within Africa. This has led to accusations of bias and neo-colonialism, especially from African leaders and some African states. Many critics argue that the ICC has disproportionately targeted African leaders and countries, often while ignoring serious crimes in other parts of the world. For some, even if the Prosecutor is aware of alleged crimes in other parts of the world, the Prosecutor did not investigate. The Chairman of the African Union Commission expressed his concern about this double standards: “Why not Argentina? Why not Myanmar […] Why not Iraq?”39

The growing discontent has led to a series of threats and actions by African countries. Indeed, a large number of states took active steps to withdraw from the Rome Statute. In particular, Burundi was the first country to officially withdraw from the ICC. In October 2017, the government of President Pierre Nkurunziza notified the United Nations of its decision to leave the Court. The withdrawal was then completed in October 2019. Burundi’s withdrawal was largely motivated by dissatisfaction with the ICC’s investigation into alleged crimes committed during the country’s political crisis in 2015. The Burundian government also criticized the ICC for targeting African leaders and countries and argued that the Court was being used as a tool of Western political influence. According to the presidential office spokesman, “the ICC has shown itself to be a political instrument and weapon used by the west to enslave.”40

Similar, Gambia announced in 2016 its withdrawal from the ICC, considering that the Court was targeting only African countries and ignored crimes committed elsewhere. The former Information Minister Sheriff Bojang justified this decision by:

[T]he fact that the ICC, despite being called the International Criminal Court, is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans.41

This decision was later reversed with the election of President Adama Barrow. In February 2017, the Barrow administration officially announced that Gambia would rejoin the ICC, signaling its commitment to the Court and international justice.

In addition to these threats, the African Union also adopted resolutions calling for the mass withdrawal of African states from the ICC.42 While not all African states supported the resolution, the move highlighted significant dissatisfaction with the ICC’s perceived focus on Africa. This resolution is not binding but testified that the ICC’s legitimacy is undermined as they considered that the ICC has unfairly targeted African states. In addition to this call to withdraw from the ICC, the African Union has also encouraged African states to not cooperate with the ICC. In particular, in a resolution, the African Union is urging Member States to not cooperate with the ICC regarding the indictment of Sudanese President Omar al-Bashir.43

It follows from this that the ICC is facing heavy criticism from African states, the African Union and many others that call into question the legitimacy of the Court due to its political implications. As a legal institution, relying on state cooperation, the legitimacy of the ICC is crucial to carry out its mission and to ensure its decisions are accepted and respected.

IV. Potential Solutions to Manage this Tension between Legitimacy and Politics

Two potential solutions potential solutions will be examined in order to improve the legitimacy of the ICC even though the Court can politically influenced: the use of the gravity criteria and reorganizing the aperture of the Court.

A. The Use of the Gravity Criteria

As the ICC’s legitimacy is undermined by political considerations, the gravity criteria can serve as a significant solution to address criticisms of the politicization of the Court. The gravity criteria is already present in the Rome Statute in several provisions such as Article 1, Article 17, and Article 53 as well as in the Preamble of the Rome Statute. Accordingly, this criteria should already have been taken into consideration.

Despite this, the gravity criteria leaves the door open to ambiguity. Some scholars have continuously asked themselves “what is a ‘grave’ crime? How can the degree of gravity be assessed?”44 The ordinary meaning of “gravity” should refer to the “importance” or “seriousness” of the offense.45 The Rome Statute also implicitly suggests that the notion of seriousness should be considered as the Preamble to the Rome Statute refers also to “the most serious crimes of concern to the international community as a whole” and that Article 1 confirms that the Court’s jurisdiction covers “the most serious crimes of international concern.”46

Even if we consider the seriousness, there is no clear definition of the gravity criteria in the Rome Statute and some argue that the term is vague and can lead to inconsistencies.47 Indeed, the gravity criteria was used by the Prosecutor as a justification for not launching an investigation for the crimes committed in Iraq, considering that the number of crimes committed by British troops was not important in comparison to other situations.48 By using the gravity criteria, the Prosecutor claimed that the “crimes of some individuals are graver than their opposing parties” but no clear justification of what is graver was given.49

Some have argued that the Prosecutor should focus on defining gravity concretely in order to apply a consistent standard that prevents disparities and political considerations.50 In order to provide more clarity and transparency, the Office of the Prosecutor (OTP) released a Policy Paper in April 2016.51 This Policy Paper recognizes the Prosecutor’s discretion and specifies that the gravity of crimes can be understand with various factors. It first establishes that the gravity of crimes includes both a qualitative and qualitative approach. Thus, the scale, nature, manner of commission, and impact of the crimes will be taken into consideration by the Prosecutor in order to decide on a situation. Regarding the scale of the crime, the Policy Paper gives a list of elements that could be taken into consideration such as the number of direct and indirect victims, the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, and their geographical or temporal spread.52 In addition to this element, the nature of the crimes which refers to the factual elements of the offense is also considered to determine if the gravity criteria applies.53 Another factor that is also considered is the manner of commission of the crimes, which can be assessed in light the means employed to execute the crime and how often the crimes are committed.54 Lastly, the impact of the crimes is also taken into consideration and can be assessed in light of the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities.55

This Policy Paper has helped to provide guidelines to the gravity criteria but defining gravity more clearly in the Rome Statute could improve consistency, reduce criticism of the ICC’s potential politicization, and strengthen its legitimacy. Indeed, by focusing on the most serious crimes of international concerns, the gravity criteria can help ensure that the ICC prioritizes cases that are truly egregious, avoiding the perception that it targets specific individuals or regions for political reasons. This could help the Court to demonstrate its neutrality and impartiality, as it would clearly establish that its mandate is to prosecute the worst offenders, regardless of their political affiliation. By doing so, the ICC can avoid being perceived as a tool of Western powers or as selectively prosecuting African leaders, thus improving its legitimacy and reducing the accusations of bias that have plagued it. Thus, the gravity criteria could help address concerns that the Court is used for political purposes, fostering a more consistent and transparent approach to international justice that is widely accepted by both States Parties and the Non-States Parties.

B. Adjusting the Aperture of the ICC

Another potential solution to reinforce the legitimacy of the ICC that is undermined because of political pressures would be to reorganize the aperture of the ICC. The aperture of the Court is defined as on the camera “the opening through which light passes for the camera to process.”56 Thus, the aperture for the ICC here refers to the jurisdictional scope and how the Court selects the situations and cases on which it will focus.

According to Todd F. Buchwald the aperture of the Court is currently set though jurisdiction and admissibility. These two elements contribute to debates about the number of situations that lead to preliminary examinations and investigations. In the Independent Experts Report (Report), the Experts recommended that the ICC focus on a narrower range of situations and limit its interventions.57 Behind that, the idea is that as the ICC has limited resources, the Court cannot proceed with every situations and should spread narrower in order to operate successfully. Ultimately, the Report recommended adjusting the aperture of the Court by raising the gravity threshold when considering which situations to investigate.58 The Report, however, did not specify how to calculate the existing gravity threshold or their recommended replacement.

However, according to Buchwald, the gravity criteria is an important one but it’s not sufficient in itself with regard to the aperture of the ICC. Indeed, to this date, this criteria was used more to exclude cases than to select cases.59 In other words, the gravity criteria is only one element of a broader set of criterion that need to be considered in determining the aperture of the Court. Other elements might play a more important role for the aperture of the ICC which are the principles of complementarity and the interests of justice.

Regarding the principle of complementarity, Buchwald considered that the principle could help reorganizing the aperture of the ICC in deterring to local actors situations in their own states. Thus, he recommended that the ICC consider traditional criminal prosecutions or other forms of trials. On the other hand, regarding the interest of justice criteria, Buchwald emphasized that this principle has played no role as a filtering mechanism and should be more developed.60

It follows from this that there are various ways to influence and narrow the ICC’s aperture. The gravity criteria alone does not fully capture the complexities involved in determining whether a case should fall under the Court’s jurisdiction. By broadening the aperture in this way, the ICC can enhance its effectiveness and credibility as an institution of international justice, while also avoiding criticisms of politicization and selectivity.

V. Conclusion

While designed as an independent judicial institution governed by the principles of the Rome Statute, the ICC’s actions are often influenced by the political dynamics of State Parties, Non-State Parties, and even its own Prosecutor. These influences raise concerns about the Court’s legitimacy, as perceptions of political bias or selective justice undermine its credibility and effectiveness in pursuing its mandate.

Despite these challenges, the ICC remains a vital instrument in the global fight against impunity for the most serious crimes. The solutions proposed, such as emphasizing the gravity criteria and reevaluating the Court’s aperture, aim to bolster its impartiality and reinforce its legitimacy. By consistently applying clear standards and focusing on cases of the highest international concern, the ICC can mitigate accusations of bias and political manipulation.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Understanding the International Criminal Court 14 (Mar. 12, 2021), available online, archived. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 6, available online. ↩

3. 3.

   Id. Art. 7. ↩

4. 4.

   Id. Art. 8. ↩

5. 5.

   Id. Art. 8 bis. ↩

6. 6.

   Ahmed Samir Hassanein, Self-referral of Situations to the International Criminal Court: Complementarity in Practice—Complementarity in Crisis, 17 Int’l Crim. L. Rev. 107 (Feb. 2017), paywall, doi. ↩

7. 7.

   William W. Burke-White, Complementarity in Practice: the International Criminal Court as Part of a System of Multi-Level Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l L. 557 (Oct. 2005), paywall, doi. ↩

8. 8.

   Hassanein, supra note 6, at 27. ↩

9. 9.

   Benjamin Duerr, Twenty Years On: The ICC and the Politicization of its Mechanisms, The Global Observatory (Aug. 7, 2018), available online. ↩

10. 10.

    Mark Kersten, Why the ICC Won’t Prosecute Museveni, Just. in Conflict (Mar. 19, 2015), available online; Kevin Jon Heller, Poor ICC Outreach—Uganda Edition, Opinio Juris (Sep. 15, 2022), available online. ↩

11. 11.

    Id. ↩

12. 12.

    Duerr, supra note 9. ↩

13. 13.

    Financial Regulations and Rules, ICC-ASP/7/5, Receipt and deposit of contributions and other income R.107.2(b) (Nov. 21, 2008), available online; Amnesty International, Voluntary Contributions—Solution to the ICC’s Funding Crisis or Threat to its Independence and Effectiveness? (Oct. 12, 2022), available online. ↩

14. 14.

    Amnesty International, Voluntary Contributions—Solution to the ICC’s Funding Crisis or Threat to its Independence and Effectiveness? (Oct. 12, 2022), available online. ↩

15. 15.

    Everisto Benyera, The Failure of the International Criminal Court in Africa: Decolonising Global Justice (2022), paywall; Sang-hyun Song, Appeals Chamber Judge at the ICC, The Independence of the ICC and Safeguards Against Political Influence, ICCLR 10 (Feb. 3, 2007), available online; Stuart Ford, Funding the ICC for Its Third Decade, in The International Criminal Court in its Third Decade: Reflecting on Law and Practice (Carsten Stahn ed., Jan. 13, 2023), available online. ↩

16. 16.

    Ministry of Foreign Affairs of the Russia Federation, Problems of Legality of the International Criminal Court, Opinion of the International Law Advisory Board (May 8, 2024) (trans.) [hereinafter Problems of Legality], available online. ↩

17. 17.

    Yassir Al-Khudayri, Christian De Vos & Mariana Pena, OSJI, Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court (Oct. 28, 2019), available online. ↩

18. 18.

    Hemi Mistry & Deborah Ruiz Verduzco, Rapporteurs, The U.N. Security Council and the International Criminal Court, PGA (Mar. 16, 2012), available online; Nadia Shamsi, The ICC: A Political Tool? How the Rome Statute is Susceptible to the Pressures of More Power States, 24 Willamette J. Int’l L. & Disp. Resol. 85, 93 (2016), paywall. ↩

19. 19.

    Security Council Resolution 1593, S/RES/1593 (Mar. 31, 2005), available online. ↩

20. 20.

    Referring Libya to the ICC is Blatant Hypocrisy, David Morrison (Mar. 2011) [hereinafter Blatant Hypocrisy], available online. ↩

21. 21.

    Press Release, S.C., SC/8351, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court (Mar. 31, 2005), available online. ↩

22. 22.

    Id. ↩

23. 23.

    Security Council Resolution 1970, S/RES/1593 (Feb. 26, 2011), available online. ↩

24. 24.

    Blatant Hypocrisy, supra note 20. ↩

25. 25.

    Shamsi, supra note 18, at 94. ↩

26. 26.

    Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online. ↩

27. 27.

    Problems of Legality, supra note 16. ↩

28. 28.

    Shamsi, supra note 18, at 100. ↩

29. 29.

    Brian D. Lepard, How Should the ICC Prosecutor Exercise His or Her Discretion? The Role of Fundamental Ethical Principles, 43 John Marshall L. Rev. 553, 556 (2010), available online. ↩

30. 30.

    Id. at 557; William A. Schabas, Prosecutorial Discretion v. Judicial Activism at the International Criminal Court, 6 J. Int’l Crim. Just. 731, 749–53 (Sep. 2008), paywall, doi. ↩

31. 31.

    Situation in the Republic of Kenya, ICC-01/09-02/11, Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (Hans-Peter Kaul dissenting) (PTC II, Mar. 15, 2011), available online. ↩

32. 32.

    Allen S. Weiner, Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence, 12 Wash. U. Global Stud. L. Rev. 545, 549 (2013), available online. ↩

33. 33.

    Michael J. Struett, Why the International Criminal Court Must Pretend to Ignore Politics, 26 Ethics & Int’l Aff. 83 (2012), available online, doi. ↩

34. 34.

    Edwin Bikundo, The International Criminal Court and Africa: Exemplary Justice, 23 Law & Critique 21 (Dec. 20, 2011), paywall, doi. ↩

35. 35.

    Marieke de Hoon, The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy, 17 Int’l Crim. L. Rev. 591 (Jun. 2017), available online, doi. ↩

36. 36.

    Id. at 16. ↩

37. 37.

    Weiner, supra note 32, at 550. ↩

38. 38.

    Id. at 547–50. ↩

39. 39.

    Richard Lough, African Union Accuses ICC Prosecutor of Bias, Reuters, Jan. 30, 2011, available online. ↩

40. 40.

    Burundi Becomes First Nation to Leave International Criminal Court, AFP, Oct. 27, 2017, available online. ↩

41. 41.

    Rebecca Hersher, Gambia Says It Will Leave The “International Caucasian Court”, NPR, Oct. 26, 2016, available online; Gambia Announces Withdrawal from International Criminal Court, Reuters, Oct. 26, 2016, available online. ↩

42. 42.

    African Union, Assembly/AU/Dec.622(XXVIII), Decision on the International Criminal Court (Jan. 30, 2017), available online. ↩

43. 43.

    African Union, Assembly/AU/Dec.245(XIII) Rev. 1, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (Jul. 3, 2009), available online. ↩

44. 44.

    Lepard, supra note 29, at 561. ↩

45. 45.

    Id. ↩

46. 46.

    Id. at 562. ↩

47. 47.

    Shamsi, supra note 18, at 100. ↩

48. 48.

    Id. at 101. ↩

49. 49.

    Id. ↩

50. 50.

    Id. ↩

51. 51.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

52. 52.

    Id. ¶ 38. ↩

53. 53.

    Id. ¶ 39. ↩

54. 54.

    Id. ¶ 40. ↩

55. 55.

    Id. ¶ 41. ↩

56. 56.

    Todd F. Buchwald, The Aperture of the ICC—More Than Just the Issue of Gravity, ICC Forum (Jul. 1, 2021), available online. ↩

57. 57.

    Independent Expert Review, ASP, International Criminal Court and the Rome Statute System (Sep. 30, 2020), available online. ↩

58. 58.

    Id. ↩

59. 59.

    Buchwald, supra note 56. ↩

60. 60.

    Id. ↩