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. ↩