Argument Continued

On the other hand, a second camp, often presenting diametrically opposed arguments, follows an anti-legalist logic, which bears similarities to a realist logic.5 This camp rejects, or are at least highly critical of the idea that law is able to tackle and trump the political and that the ICC will be able to restrain those in power from committing atrocity crimes when they believe it is in their interest. Many following this anti-legalist logic combine this with a conclusion that international (criminal) law and the ICC is irrelevant because it is nothing but political, pointing to the lack of enforcement mechanisms, the prevalence of atrocity crimes despite the existence of the ICC, and the ability of powerful leaders to stay out of the reach of the ICC.

The direction and nature of critique among anti-legalists varies. For example, some argue that international criminal law merely masks disagreement and veils the inexistence of an international community and universal values. In the words of Philip Allott:

International law is the age-old rule of power masquerading as the age-old Rule of Law. It is disorder usurping the name of order. It is an education in illusion, imperfection, and irrationality.6

Realists like Lord Hankey and Henry Kissinger believed that “justice” on the international level should be evaluated by statesmen, with an eye to restoring relations and interest positions rather than retribution. Other anti-legalists believe that atrocity crimes trials are insufficiently retaliatory. Similar to the legalist logic, they place law opposite to politics, but in a contrary direction.

These two logics are usually placed opposite one another, understood as a dichotomy, each aiming at discrediting the other. However, neither logic fully explains the behavior of states and their leaders, and neither can be entirely dismissed either. Even though international (criminal) law has its limitations in substantive determinacy and enforcement, practice shows that it does restrain power to some extent. For example, law disciplines what arguments are recognized as “lawful,” it condemns deviant behavior as “illegal” or even “criminal,” and it disciplines actors to formulate their arguments in legal terms rather than a-legal terms. It mobilizes people towards demonstrations if they believe international crimes—particularly genocide—have been committed. If international criminal law were irrelevant, how come the language of international criminal law has become the vernacular for discussions on conflicts? And how come most state actors go to lengths to try to justify their atrocity crimes with international legal justifications, and discredit or even attack the ICC? Most international debates are now framed by international (criminal) law.7 To a large extent, modern politics can be described as legal politics. The rules of interaction are legal, the actors and players are legal institutions, their powers are enabled and limited, increased and decreased by law.8

To argue that the anti-legalist dismissal of the relevance of international criminal law and the ICC is a misunderstanding of the ways in which law has permeated international politics, is not to embrace the legalist assumption that law will thus persevere and conquer atrocity crimes and its perpetrators, suspending politics step by step, if we just try harder and create better laws and effective enforcement. Rather, the argument is that the relationship between law and politics is more complex than a simple either/or. Presenting law as the “savior” from the danger called politics ignores the social context in which law and the ICC exist and the social diversity in which they function. It fails to account that the ICC, its Rome Statute, its jurisdictional reach, and (part of) the decisions by the Office of the Prosecution (OTP) reflect not only the outcome of legal debate, but also the outcome of political struggle. It is thus the product of power, that itself may embody and reinforce structural inequalities, power relations, and interests. To paraphrase Judith Shklar, in a morally pluralistic world, international law and the search for justice do not hang above the political world but stand in its very midst.9 Law can therefore not be contrasted with the political, because it cannot take away the nature of the political.

III. Co-Constitution of Law and Politics at the ICC

The presumed dichotomy moreover overlooks that law and politics co-constitute each other. Not only does politics constitute law, the legal language is a particular form of politics that constitutes in and of itself political force by producing new realities and power, by including and excluding what is recognized as legal, relevant, and convincing. Doing so can affect states’ interests and influence the social construction of how norms are understood and used, which again structures the international relations between states. In a criminal trial, choices are made through which narrative is pursued; some victims are recognized, others are not; some crimes, perpetrators, and root causes are included, others remain beyond the scope of the particular case that is considered fit for presentation at trial.10 Law’s power to discipline the political thus works both ways: subjecting the political to the legal framework, but also empowering politics with the law’s force.

While the ICC is thus an inherently political institution, this should not take away from its legal nature, obligations, and ability to uphold all legal principles, including those related to a fair trial. The presumed danger that often attaches to the juxtaposing of law and politics is that “politics” threatens to make an international criminal trial into an extra-legal political sham trial. However, a fair trial—protecting the independence and impartiality of the judicial process, providing rights to the defendant, and occurring in accordance with the rules of judicial interpretation—is perfectly possible even when a judicial process results from a political choice and is conducted amidst the challenging geo-political circumstances that the ICC seems to inherently function in.

In his powerful oeuvre on the topic, Martti Koskenniemi explains that every trial is political, “because every trial represents power, a hierarchy, a set of values, and preferences.”11 Otto Kirchheimer understood the reason for trials exactly in their value to use the integrity of the legal system to pursue political ends. Through the use of “prearranged rules,” Kirchheimer held, “[j]udicial proceedings serve to authenticate and thus to limit political action.”12 The value of the ICC thus depends on its ability to uphold the integrity of legal principles, despite its political nature, and despite realizing that its (in)actions generate and shape new politics.

Rather than dismiss the ICC’s politics or argue the ICC could or should be devoid of it, we need to understand the politics and ideologies that produces, shapes, drives, and sometimes undermines the ICC in order to understand and critique the Court. In her conclusion to “Legalism,” Shklar explains that:

Our political thinking from antiquity onward has been permeated with legalistic notions and terms, just as legal theory, openly or not, is conditioned at every point by ideological commitments. As an alternative to divorcing of inseparable forms of thought, it has been suggested here that it might be helpful to speak not only about law and non-law, but of degrees of legalism. It might also be useful to deal with at least some legal phenomena not as matters locked in the statute book and courthouse, but as events occurring in a vast variety of political contexts, each of which gives any such situation its full character.13

IV. The ICC’s Law and Politics Require Space for Global Deliberation

While every court and any trial is “political” in the sense that they involve questions of political contexts, social power, legislative choice, prosecutorial discretion, and judicial interpretation, international criminal trials are particularly political.14 The cases that land in international criminal trials usually include highly contentious facts, causal relations and contexts, the understanding of which often forms part of the conflict itself. As Koskenniemi observed, as the court needs to consider them, they cannot avoid but take at least some political stance.15 The point here is that the fact that these trials and the ICC’s operations are “political” is not because they would merely reflect political forces or lack legal foundation. They are “political” because they are a space in which priorities of what should be adjudicated in the eyes of the world and in pursuit of “universal justice” for which “impunity should be ended” and “justice delivered” are enforced within a site where the Court listens to contested narratives and decides what narrative to endorse, in accordance with, and on the basis of, legal rules and principles.16

Not only do we therefore need to understand the ICC’s politics, rather than deny and attempt to suppress them; we also need to understand that, in absence of universal values, interests, or morality, the ICC requires sites and spaces where global deliberation and contestation can take place to inform, guide, and decide the ICC’s politics.

Kjersti Lohne and I argued in 2014—when the “African critique” challenged the ICC’s legitimacy as a universal court as its first decade had (practically) exclusively led to cases against Africans—that:

[I]t would be a misrepresentation of history to think that those involved [in the negotiation of the Rome Statute, MdH] also reached substantive agreement on what ‘justice’ entails, for all and everyone, everywhere.17

We wrote:

Rather than dismissing the more profound concerns of a Court and a framework representing an interpretation of justice that is contested, and an administering of justice that is perceived as unhelpful, there is a need for discursive space in order to maintain dialogue on where disagreement lies as well as where agreement can be found. Instead of a demotion of accountability for human suffering and human rights violations, we believe this will strengthen the authority and legitimacy by which the world responds to such atrocities. Legitimacy must continually be renegotiated.18

We have suggested in various writings to reinterpret the annual diplomatic meetings of the ICC’s Assembly of States Parties as a space for deliberation, and a space for claims and counterclaims to the ICC’s interpretations of justice so that the ICC can seriously consider and address attacks on its legitimacy.19 Having attended almost all annual Assembly of States Parties (ASP) meetings since 2010, they have become more open to constructive listening and engagement, less of a space of Western arrogance as it was when the “African critique” rebelled at various ASP meetings which failed to offer a proper space for such deliberation and contestation.

V. The OTP’s Global Signposts to Atrocities

The organ that represents the most politics at the ICC is its (OTP). This is inherently connected to the role of the prosecutor in a criminal justice system. As Tonry observed:

They decide what crimes to prosecute; whom to charge; what to charge; whether to plea-bargain, offer concessions, or divert a case; how aggressively to seek a conviction; and what sentence to propose.20

At the ASP meetings, the OTP presents technical overviews of their office workings. Since 2011, responding to critiques of a lack of transparency, the Chief Prosecutors have also presented their annual Report on Preliminary Examination Activities in a side event. Since 2022, this has been replaced by a broader Annual Report of the Office of the Prosecution. These reports have provided some insight into the OTP’s activities and choices, including case selection, which is a highly political (aside from legal) aspect of the prosecutor’s work. Situation and case selection is where many considerations and choices—and not only strictly legal ones—take place; not only on what evidence is available or obtainable, and what crimes will be able to be proven, but also what to prioritize given their limited budget. Prosecutorial selections of a political nature and effect are not limited to case selection. They include, for example, which potential avenues of evidence to pursue and which to end, pause, or not pursue at all; the scope of the investigation; who to cooperate with (and who not); what charges to bring; what crimes to highlight; and which suspects and victims to include. Reasons of a more legal nature (e.g. sufficient evidence) and those of a more political nature are often intertwined: is this a crime that should be prioritized; is gathering this additional evidence “worth” the resources or should other choices be made; and what story will the trial tell, including which and how many victims, contexts, and circumstances?

Choices are inherent in a prosecutor’s duties, and they can be disagreed with. If other choices had been made, these would be disagreed with as well. It is important to realize that the workings of the ICC and the OTP are limited, as Shklar explains, justice as such inherently is and “may be the best we can do.”21 Within that context, I believe it is important to discuss not whether the ICC is political, but what its politics are.

A substantive evaluation of the ICC’s politics would go beyond the scope of this comment, but the OTP has shed increasing light on its choices in the past decade. One very interesting example was the Al Mahdi case, in the Mali situation. This was a historically short trial where Ahmad al-Faqi Al Mahdi, a mid-level militia member, was sentenced to nine years imprisonment for the war crime of intentionally destroying cultural, religious, and historic monuments: the mausoleums in Timbuktu.22 Al Mahdi was not the “most responsible perpetrator” of violence in Mali and did not commit the gravest of all crimes the ICC focuses on. However, in a world where we powerlessly observe the irreversible destruction of cultural heritage, identity, and dignity through the destruction of art and history—at the moment of this trial in Syria, Iraq, and Afghanistan—and a world plagued by Islamic fundamentalist violence, the OTP saw an opportunity to send a message to other perpetrators for which it had no jurisdiction or evidence, and took it. Because Al Mahdi was seen to commit the act on video and pled guilty, which supposedly assisted in the decision to prosecute this case, this was a relatively cheap and fast case for the ICC.

While destroying cultural heritage is serious and punishment rationales like retribution and prevention were likely hoped to have some wider effect, a significant added value of this trial relates to an expressivist function of a trial: as a signpost to the rest of the world that the destruction of cultural heritage is also considered to be one of the most serious crimes of concern to mankind that the OTP has its gaze on. In his seminal work on expressivism, Mark Drumbl explains that expressivism claims as central goals the creation of historical narratives as representations of “truth” and their pedagogical dissemination to the public, embedding the normative value of law among the general public.23 Carsten Stahn describes expressivist justice as emphasizing the communicative and performative dimensions of criminal justice.24 Criminal trials thus regarded are (also) a didactic means through which to communicate shared values and symbolic meanings.25 Norm expression and norm enforcement are important functions of yielding justice in this understanding.

A critical examination of the OTP’s politics here is warranted. In the documentary “The Reckoning,” then ICC Chief Prosecutor Luis Moreno Ocampo said that:

The problem is, when you are a prosecutor in a national system, there is consensus on the law. This idea to have international criminal law is so new, that there is not a consensus in the world. And that is why a prosecutor has a different role. We have to use our case to build consensus.26

Ocampo thereby suggested that it is his task to create socio-political consensus on what justice is and express this accordingly through prosecutions. Trials then become a persuasive or even coercive project in favor of a particular conception of justice that is not perceived as just by all.

Yet, in absence of an “international community” that functions as a community and that has a representation that can negotiate the detailed application and prioritization of the norms that have been created, it is the OTP that is positioned to lead these discussions. And it is for that reason that Lohne and I argued that there should be a space that is used more productively to deliberate on and contest those choices.

Another example of the OTP’s choices in what to highlight among all atrocities around the world is second Chief Prosecutor Fatou Bensouda’s explicit choice to focus on sexual and gender-based violence. In 2014, the Prosecutor launched her Office’s Policy on Sexual and Gender-Based Crimes, recognizing that those crimes had been structurally under-investigated and remained unseen, while they “take place in conflict zones around the world with alarming intensity and frequency.”27 It has led to an increase in charges related to sexual and gender-based violence and a currently ongoing contestation between the OTP and chambers on how to understand gender-based persecution, following the widely criticized Al Hassan acquittal for this crime, but awaiting the views of the Appeals Chamber.28 Al Hassan has been the first to have been convicted for religious persecution, which, in light of the fundamentalist-related crimes around the world, has been an important signpost the OTP has been wanting to place as well.

Currently the most contested aspect of the OTP’s politics concern the arrest warrants against leaders of non-state parties. A decade ago, indicted (now former) president Al Bashir of Sudan made a spectacle out of traveling throughout particularly African countries while wanted by the ICC. The ICC Pre-Trial Chamber recently found that Mongolia violated its obligations by failing to arrest and surrender indicted Russian President Putin.29 And non-state party U.S. President Trump has issued sanctions to all those that cooperate and provide services to the ICC and froze assets and issued travel bans on the Chief Prosecutor and others in his opposition against the arrest warrants for Israeli Prime Minister Netanyahu and former Minister of Defense Gallant.

An often heard critique of these arrest warrants includes those following an anti-legalist logic “it is useless because they will never be caught” as well as a legalist logic “it is too political as the applicability of head of state immunity to ICC non-state party leaders is not crystallized in international law and the ICC is expanding its reach.” I believe the ICC is following a politics that has legal ramifications and vice versa that, while dangerous in fighting a geopolitical fight it might not win, also has some promising understandings of what the ICC is and can be. This is what I will end with in the next section.

VI. Limited, but Better Than Nothing. The Expressivist Value of the ICC’s Workings

Arguably, the more successful and effective the ICC will be, the more pushback it will generate from leaders that reject the idea of a supranational criminal justice system that also reigns over them. On the one hand, there is a sound argument that the ICC is treading on dangerous ground by going after leaders of non-state parties, following the ICC’s own interpretation of its reach and priority over the competing norm of head-of-state immunity. For a court that is so dependent on state cooperation and legitimacy, fighting this high-risk geopolitical fight may be seen as reckless and suicidal, but also as pushing the law where it may not have been. On the other hand, though, the ICC is made to break through deeply engrained understandings of international law that facilitated impunity for atrocities committed by those in power. Going also after heads of states that commit atrocities on territory over which the ICC has jurisdiction (Ukraine, Palestine) or pursuant to a U.N. Security Council Resolution (Sudan), and asking ICC state parties to understand their commitment to cooperate with the ICC as unimpeded by head-of-state immunity can be seen as the raison d’être of the ICC’s existence.

Moreover, not pursuing these state leaders that allegedly commit crimes on territory within the ICC’s jurisdiction would also have been a choice with legal and political ramifications: this would have been interpreted as a recognition of the ICC’s limitations and thereby forever limiting the interpretation in the contrary direction. It would moreover have political effects, of a court that subdues to geopolitical threat and can be scared off through intimidation, and daily demonstrating the ICC’s lack of reach. It therefore constitutes a catch-22: damned if you do, damned if you don’t. And the OTP and chambers through its judgments have chosen to understand the ICC as tasked with breaking the status quo that caters to impunity.

A final important point I want to highlight concerns the argument that “arrest warrants against these leaders are pointless because they will never be caught.” The expressivist logic helps us understand a wider potential of arrest warrants than retributive and preventive logics offer. Aside from the point that perhaps, in an unexpected travel hiccup or after regime change, such individuals may still find themselves in the dock, arrest warrants can have important powers where no other accountability or other type of justice seems likely, as is a reality in many of these conflicts. An arrest warrant is a small version, but significant nonetheless, of a proceeding: where the prosecutor argues that crimes are likely to have been committed and identifies individuals it suspects as being responsible for them; and judges consider, deliberate, and decide as to whether they agree. It acknowledges victims that otherwise may have nothing. It gives some guidance to what is right and wrong and who is (probably) responsible. And it is at least something with some judicial power that can land in history books for generations to come. Moreover, the ICC’s decision to qualify acts as putative atrocity crimes may push the scales in domestic politics to act in accordance with their duties to prevent international crimes, or simply morality. This may help states decide to pressure those leaders through diplomacy or employ sanctions.

My argument is that this is not to be neglected or brushed away as insignificant. For some (or many) conflicts, what we have with the ICC is limited but not nothing. And also not necessarily the best we can do: by opening up to critique and allowing the ICC’s politics to be discussed and contested, there may be more potential in the ICC than we have seen so far. And for victims yearning for acknowledgment of their suffering, and for external pressure to stop the crimes they suffer, more than nothing rarely means the same as nothing.

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

1. 1.

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

2. 2.

   Id. at 1. ↩

3. 3.

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

4. 4.

   Gerry J. Simpson, Law, War and Crime: War Crimes, Trials and the Reinvention of International Law 140 (Oct. 2007), paywall. ↩

5. 5.

   Not all anti-legalists necessarily also adopt a “realist” view of international relations, understanding world order as an anarchical power struggle, each state fighting for its own interests and power positions, accepting international law only when to the extent that it is perceived to contribute to national goals, and rejecting it when found to counter essential interests. ↩

6. 6.

   Philip Allott, Reconstituting Humanity—New International Law, 3 EJIL 219, 250 (Aug. 1992), paywall, doi. ↩

7. 7.

   See James Crawford & Martti Koskenniemi, Introduction, in The Cambridge Companion to International Law (James Crawford & Martti Koskenniemi eds., 2012), paywall, doi. ↩

8. 8.

   David Kennedy, Of War and Law 13 (Sep. 10, 2006), paywall. ↩

9. 9.

   Shklar, supra note 1, at 123. ↩

10. 10.

    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 (2017), available online, doi. ↩

11. 11.

    Martti Koskenniemi, International Justice: Between Impunity and Show Trials, Lecture, SOAS (Jan. 4, 2013), video (at 6:45). ↩

12. 12.

    Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends 6 (1961), paywall. ↩

13. 13.

    Shklar, supra note 1, at 223. ↩

14. 14.

    Simpson, supra note 4, at 14. ↩

15. 15.

    Martti Koskenniemi, Between Impunity and Show Trials, in Max Planck Y.B. U.N. L., vol. 6 at 1 (Jochen A. Frowein & Rüdiger Wolfrum eds., 2002), available online. ↩

16. 16.

    de Hoon, supra note 10, at 606–07. ↩

17. 17.

    Marieke de Hoon & Kjersti Lohne, Negotiating Justice: Reconstituting the ICC Through the Assembly of States Parties Meeting, Int’l Bar Assoc., Hum. Rts. L. Newsletter 17, 19 (Sep. 2014), available online. ↩

18. 18.

    Id. at 20. ↩

19. 19.

    See also Marieke de Hoon & Kjersti Lohne, All the World’s a Stage: Constituting International Justice at the ICC’s Assembly of States Parties Meeting, in Backstage Practices of Transnational Law (Lianne J.M. Boer & Sofia Stolk eds., Apr. 2019), paywall, earlier version available online, doi; Marieke de Hoon & Kjersti Lohne, Negotiating Justice at the ASP: From Crisis to Constructive Dialogue, EJIL Talk (Nov. 29, 2016), available online. ↩

20. 20.

    Michael Tonry, Prosecutors and Politics in Comparative Perspective, 41 Crim. and Just. 1 (Aug. 2012), paywall, doi. ↩

21. 21.

    Antony Pemberton, Victimology With a Hammer: The Challenge of Victimology, Lecture at Tilburg U. at 45 (Dec. 11, 2015), available online. ↩

22. 22.

    Marieke de Hoon, The ICC’s Al Mahdi Case Is (Also) a Political Trial, and That’s Fine!, EJIL Talk (Aug. 31, 2016), available online. ↩

23. 23.

    Mark A. Drumbl, Atrocity, Punishment, and International Law 173 (2007), paywall, doi; see also Marlies Glasius & Tim Meijers, Constructions of Legitimacy: The Charles Taylor Trial, 6 IJTJ 229, 248 (Jul. 2012), paywall, archived, doi. ↩

24. 24.

    Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice 4 (Jul. 28, 2020), paywall. ↩

25. 25.

    Barrie Sander, The Expressive Turn of International Criminal Justice: A Field in Search of Meaning, 32 Leiden J. Int’l L. 851 (Dec. 2019), paywall, doi. ↩

26. 26.

    The Reckoning: The Battle for the International Criminal Court (Skylight Pictures, Jul. 14, 2009), paywall (at 16:35). ↩

27. 27.

    Press Release, ICC OTP, ICC Prosecutor, Fatou Bensouda, Launches Policy on Sexual & Gender-Based Crimes: Ensuring Victims Have a Voice in Court Today Can Prevent These Crimes Tomorrow #EndSexualViolence (Dec. 9, 2014), available online. ↩

28. 28.

    See, e.g., Rosemary Grey & Valerie Oosterveld, Al Hassan: The International Criminal Court’s First Judgment on Gender Persecution (Part 1), Opinio Juris (Aug. 2, 2024), available online. ↩

29. 29.

    Press Release, ICC OTP, Ukraine Situation: ICC Pre-Trial Chamber II Finds That Mongolia Failed to Cooperate in the Arrest and Surrender of Vladimir Vladimirovich Putin and Refers the Matter to the Assembly of States Parties (Oct. 24, 2024), available online. ↩

30. Suggested Citation for this Comment:

    Marieke de Hoon, More Than Nothing Rarely Means the Same as Nothing: On Embracing, Contesting and Improving the ICC’s Politics, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics#de-Hoon.

    Suggested Citation for this Issue Generally:

    Is the ICC a Political Institution?, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics.

Argument Continued

This represented a serious institutional and ideological threat to the ICC. Its credibility and legitimacy, to say nothing of its jurisdiction, stem from its acceptance by state parties. Moreover, the defection of member states undermines the ICC’s Whiggish conception of a world ineluctably progressing towards a “rules based international order,” with the tribunal as a key arbiter. Defection by the dozens of AU states could be a blow from which The Hague could not recover.

Given this, it is hard to see it as coincidental that the ICC has completely refrained from any new investigations in Africa since Burundi in 2017, which resulted in Burundi’s withdrawal from the Court. Since then, the Court has almost entirely shifted its new workload away from Africa.7 (In October 2024, the Prosecutor announced an expansion of the investigation into crimes in the eastern Democratic Republic of Congo but did so while meeting with the president of the DRC to demonstrate the support of national authorities for the action against their enemies.) The marked change in conduct after African threats strongly suggests Court institutions reacted deliberately—and politically—to a threat to their institutional existence.

Moreover before 2017, the Court avoided investigating non-member states, apart from referrals by the Security Council pursuant to Art. 13(b) of the Rome Statute. Since late 2017, this has changed significantly, with investigations announced regarding U.S. conduct in Afghanistan; Russian conduct in Ukraine; and, relying on novel and aggressive jurisdictional theories, investigations of non-member Myanmar based on alleged spill-over conduct in Bangladesh; and Israeli conduct in Gaza. This can be understood as a direct response to the threat of exit by member states—unlike South Africa or the Gambia, the U.S. and Israel cannot quit the Court.

Even in these investigations, the Court appeared to respond directly to political pressure. In April 2019, President Trump took the unprecedented step of denying a visa to ICC Prosecutor Fatou Bensouda, and hinted that further measures would be taken as a result of the preliminary examination into alleged U.S. crimes in Afghanistan. A few weeks after, the Pre-Trial Chamber ended the investigation, citing “changes within the relevant political landscape.”8 It is hard to see this as anything but a reaction to U.S. threats.

Nonetheless, on March 5, 2020, the Appeals Chamber authorized a full investigation.9 On June 11th of that year, President Trump issued an executive order authorizing sanctions against ICC officials, including asset-blocking sanctions against the Prosecutor and another official.10 While those measures were subsequently lifted by President Biden, the Court did not develop active cases against U.S. nationals, and appeared to shift its focus away from the Afghanistan matter.

A similar apprehension about confronting great and potentially retaliatory powers can be seen in the Court’s conduct towards the Russian Federation. Russia invaded Georgia in 2008, and established puppet quasi-states in South Ossetia and Abkhazia to occupy Georgian territory, a situation that persists today. The ICC’s preliminary examination dragged on for years. The Prosecutor ultimately adopted an extremely narrow temporal and material view of the relevant criminal context, focusing on a period of a few months. This ignored potential ongoing crimes such as the transfer of population into the occupied territories.11 Only in March 2022—just weeks after Russia’s second invasion of Ukraine—did the Prosecutor announce arrest warrants, which conspicuously avoided implicating any Russian Federation officials, focusing instead on minor officials of the obscure and inconsequential South Ossetian entity.12 The downplaying of the Georgian investigation, and the timing of the eventual warrants, is consistent with the Court not wishing to confront powerful and dangerous actors over a conflict that, until 2022, had little salience for Western elites.

By Ukraine’s September 2015 declaration under Art. 12(3), the ICC has had jurisdiction over all crimes on Ukrainian territory from February 20, 2014 onwards.13 This includes Russia’s occupation of Donbass and annexation of Crimea and subsequent policies there, including the transfer of hundreds of thousands of settlers into the latter territory. At the same time, Russia’s ongoing occupation of large chunks of Ukrainian territory, and the apparent commission of significant crimes within the purview of the Rome Statute,14 did not prevent Europe from reaching a modus vivendi with Moscow—which was accompanied by a lack of ICC action. Indeed, an arrest warrant against Russian President Vladimir Putin was only issued on March 17, 2023,15 nearly a decade after the annexation of Crimea and over a year after Russia’s second invasion of Ukraine. Of course, the latter event sharply tilted global public opinion, and especially European opinion, against Moscow. In short, the ICC did not take serious action against Russian officials despite significant evidence of war crimes while Europe sought accommodation with Russia. The Court only pursued them when failing to do so would make it appear ridiculous. It seems apparent that political factors influenced the decision-making at all stages of the proceedings. In particular, the Court’s treatment of non-member states seems to track the generally perceived global opinion—or at least Western elite opinion—regarding the non-Member. This is also consistent with the Court’s conduct towards Israel, which had for many years been subject of a preliminary investigation regarding settlement activity and the 2014 conflict in Gaza. Nonetheless, the Prosecutor began to prepare arrest warrants against Israeli leaders roughly a year after the start of the October 7th War, as global public opinion of Israel quickly turned significantly negative.16

III. Reliance on United Nations Resolutions

Pursuant to the Rome Statute, the Court is to be an “independent” judicial body that decides issues based on “applicable treaties and the rules of international law.”17 Yet the Court has abrogated its independence by deferring to the United Nations General Assembly, a manifestly political and non-judicial body, or even deferring to the actions of the Secretary General, for the determination of both law and fact. An example of this is one of the Court’s most controversial actions: the recognition of Palestine as a “state” eligible for membership in the ICC.

The ICC had never before or since accepted jurisdiction over what is clearly at most a “marginal” state—one that is not a U.N. member, that has not ever claimed to govern any territory, and whose recognition by other states is limited (for example, the U.S., Canada, and most Western European states did not recognize the existence of a Palestinian state). This is clearly dramatically different from anything the Court has done before.

“The rules of international law” contain a clear and well-established test for whether an entity qualifies as a sovereign state—the objective test set forth in the Montevideo Convention.18 Applying this test involves the application of law to facts. Of particular relevance is the requirement that to become a state, a territory must have a functioning government exercising supreme control in at least part of its claimed territory. The requirements for the creation of a state do not mirror those for its extinguishment. Thus the possibility of a “state under occupation,” a status claimed by the Palestinians, does not preempt the need to show that a state had been established in the first place under the standard Montevideo definitions. The Palestinians, however, claim all their territory is now, and has always been, under the control of Israel.

The Court did not engage in any of this analysis. Instead, it concluded that the references to “States” in the Rome Statute need not signify an “entity that fulfils the prerequisites of statehood under general international law.”19 In other words, the term “States” in the meticulously negotiated Rome Statute does not refer to “states” in the typical sense, but something else entirely. This was particularly odd given the lack of any trace of this idea in the travaux préparatoires. Moreover, other treaties that allow for accession by entities that do not satisfy the Montevideo criteria do so explicitly, while the Rome Statute does not.20 Indeed, it upends the basic axiom of international law that sovereign states are the top-level normative actors of the international system and can only be bound by their consent. According to the Court’s logic, an entity that does not meet the international legal criteria for statehood could nonetheless convey to the Court authority over the conduct of a sovereign state, an outcome fundamentally at odds with state sovereignty.

The Court went on to conclude, in accord with the Prosecutor, that the G.A.’s vote in 2012 to call Palestine a “non-member state,” and the subsequent acceptance of Palestinian accession documents by the Secretary General, are dispositive of the ICC’s statehood inquiry.21 If the G.A., and/or the Secretary General, refer to something as a “state” it is one for Rome Statute purposes. This decision gravely undermines the Court’s independence. The G.A. is not a judicial body, but a political one. Its determinations are political, not legal. “Statehood” is a minimal threshold for the Court’s exercise of power and is a distinct legal concept. By outsourcing the determination of legal terms in the Rome Statute to U.N. political actors, the tribunal made itself an auxiliary to political bodies.

Similarly, the ICC prosecutor had previously determined that Gaza was occupied by Israel because that was the “prevalent view within the international community.” Occupation is of course a question of fact,22 often involving significant legal analysis.23 The Court turned it into an ersatz popularity contest.24

The Court has also looked to U.N. resolutions as evidence of legal or factual propositions in African cases. In Dyilo,25 the Court cited Security Council Resolution 1493 to provide a factual basis for war crimes charges.26 Similarly, in Al Hassan,27 the Court used Security Council Resolution 2056 to document the destruction of Timbuktu’s cultural sites,28 grounding war crimes charges.29

U.N. resolutions, even Security Council ones, do not establish legal facts, they are only evidence of a climate of diplomatic opinion. Given the difficulty of fact-finding for an international tribunal without its own court officers or marshals, or the power to enforce its own process, outsourcing fact-finding to the U.N. is an obvious temptation. But criminal proceedings, where individual liberty is at stake, is hardly the place for shortcuts. Using U.N. proceedings as evidence of legal facts imports the U.N.’s political biases into the ICC.30

IV. The Charges Against Israeli Officials

The indictments of senior Israeli leaders in connection to the war that began on October 7th, 2023 is certainly the most controversial decision the Court has ever made. It also arose in a unique institutional context: the Prosecutor had been subject to growing internal complaints by subordinates of sexual assault. His surprise decision to formally announce warrants came just as those complaints were being formally filed with the Court. According to news reports based on the Court’s internal investigation, Khan had for months kept formal accusations at bay by telling his subordinates/victims that those accusations would undermine the Israeli arrest warrants.31

That such serious misconduct did not lead to an immediate suspension of all cases and proceedings with which the prosecutor was involved demonstrates the massively political nature of the Israeli warrants. The Court as an institution has taken a massive bet on this matter. Its actions have been applauded by a wide swath of international criminal law practitioners and human rights NGOs—in short, the professional community of the ICC prosecutors and judges. It has also resulted in notable opposition by the U.S.,32 and the exit of Hungary as a member of the Court.33 At this point, backing down would fundamentally and irrevocably undermine the Court’s credibility. But the politicization of the matter goes far beyond the personally compromised prosecutor.

A. The Expert Committee

The Prosecutor’s decision to issue warrants against Israeli officials was based in part on “evidence review and legal analysis” by a group of outside consultants picked by the prosecutor, many of whom had long records of condemning Israel and declaring it guilty of war crimes. In short, the prosecutor accused Israeli officials of committing war crimes by relying on the advice of people who he knew had already come to that conclusion when he consulted them.

In January 2024, the prosecutor convened a “Panel of Experts” to advise him on potential arrest warrants.34 No ICC case has ever used such a device. The Prosecutor knew that charges against Israeli officials would be legally and politically controversial and saw such a panel as giving greater legitimacy to his action. But the selection of panel members appears political in nature, and casts into doubt the prosecutor’s own impartiality and the integrity of the entire process.

Take Baroness Helena Kennedy, a left-leaning Labor member of the House of Lords who had allied with pro-Palestinian groups. She had, before being appointed to the expert panel and even before the start of the Gaza War, called on the ICC to prosecute Israelis. In 2020, she called for the United Kingdom to impose sanctions on Israel. The letter showed a kind of prejudice that one would think would preclude its signatories from being considered impartial experts: “It is already clear that the Israeli government will use the cover of the Covid-19 pandemic to seek to implement this egregious plan.” The “State of Palestine” liked the letter so much they put it on their website.35

Just a few weeks into the war, she publicly accused Israel of committing war crimes in Gaza36 (by restricting water imports into the territory, despite siege being a recognized method of warfare and most of Gaza’s water supply being internal).

Another member of the panel was Danny Friedman. On October 18, 2023, just days after the war had started, he had already accused Israel of war crimes, making the controversial claim that a siege that affects a civilian population is prohibited by the laws of war. He has also argued that international law required Israel to immediately halt its campaign entirely, even while Hamas kept hostages.

Even the panel’s sole Israeli national (the rest are British, as is the prosecutor), Theodore Meron, is best known for his criticism of Israeli government policy in the West Bank and Gaza. The panel’s sole Arab—and by far most famous member, Ms. Amal Clooney—was mooted to sit on a similarly problematic U.N. committee examining another Gaza conflict a decade ago. She begged off, but not before saying she was “horrified by the situation in the occupied Gaza Strip, particularly the civilian casualties that have been caused.”37 Ms. Clooney has been heavily criticized by anti-Israel voices for her “silence” since the start of the conflict. After the publication of her report, hundreds of previous critics took to social media to apologize for doubting her solidarity.38

The Prosecutor composed his expert panel of lawyers who had all already taken strong, legally controversial, and even extreme positions on the very issues the prosecutor was asking them to impartially examine, as well as political issues related to the conflict. Not only had they expressed strong views on the conflict, but their views also all lined up. Not a single expert with a public record of serious skepticism about the Court’s jurisdiction or alleged Israeli atrocities was included.

The Prosecutor’s selection of the panel could violate the OTP’s Code of Conduct, which demands that prosecutors “refrain from any activity which is likely to negatively affect the confidence of others in the independence or integrity of the Office.”39 The Code of Conduct does not apply to outside experts, but by selecting and relying on experts who violate its rules of impartiality, the prosecutor undermines his own. At the very least, selecting a panel of experts with clear, one-sided political views of the underlying conflict strongly supports the theory that the Court, or at least the Office of the Prosecutor, functions as a political institution.

B. The Composition of Charges

It is hard to escape the impression that political factors strongly influenced the selection of targets for prosecution—political both in the larger sense, as well as in the simple partisan way. The two Israeli officials indicted were both members of the conservative Likud party. Yet other leading members of the war cabinet, including Minister Benny Gantz, all of whom approved the relevant policies, escaped indictment. At the same time, ostensible parity was sought by indicting Hamas leaders. While all three indicted Hamas leaders would soon be killed by Israel, the Court ignored the demise of Mohammed Deif for months, to keep his indictment open and maintain the appearance that it was not merely investigating Israeli leaders.

At the same time, the Court treated Hamas as an autonomous actor, ignoring Iranian and Qatari control over the organization. (Indeed, one of the indicted Hamas leaders, Mohammed Deif, was openly based in and hosted by Qatar, but this did not lead the Prosecutor to consider Qatar’s involvement in the attacks.) No warrants were issued against Iranian officials,40 despite Iran’s significant funding of Hamas, training of Hamas terrorists in the months before the attack,41 and Hamas coordination with Iran immediately before the attacks.42 Under the Court’s recent jurisprudence, any conduct in non-member states can be investigated if part of the alleged crime occurs within the territory of a member state. But there is no indication the Prosecutor looked beyond Gaza. Indictments against Iranian officials would have potentially undermined the popularity the Court received among key constituencies for its indictments of Israeli leaders. Moreover, it would have exposed OTP officials to a real risk of personal harm, given Iran’s history of assassination attempts against external enemies.

V. Conclusion

Numerous lines of evidence support the conclusion that the ICC functions as a political actor. It does this to advance its interests—state membership, financial support, and credibility and respect from an international legal and professional class that likely shares quite uniform views and ideology. This may not be surprising—domestic judiciaries are widely acknowledged by scholars, at least since the emergence of Legal Realism a century ago, to be political actors. ICC judges and prosecutors are senior agents of a free-standing bureaucratic entity; this may only make them more political, as their interests are closely tied to the fortunes of their institution. Domestically, the recognition that judges are political actors comes with an understanding that their legitimacy depends in part on their being selected by, and accountable, to democratic political processes. The Court is, however, entirely unaccountable to non-member states, and thus it should expect significant resistance from them, and not be surprised if they take the kind of measures against it they might take against other political actors.

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

1. 1.

   The Court is composed of distinct organs, including an independent Office of the Prosector and different judicial panels. This comment abstracts these details and treats the Court as a unitary actor, consistent with the “black box” approach of neorealist international relations scholarship. ↩

2. 2.

   See, e.g. Pranshu Verma, Trump’s Sanctions on International Court May Do Little Beyond Alienating Allies, N.Y. Times, Oct. 18, 2020, paywall

   (quoting Prosecutor Fatou Bensouda as saying “We are a court of law, we do not do politics.”);

   Press Release, ICC, ICC President Addresses United Nations General Assembly to Present Court’s Annual Report (Oct. 29, 2024), available online.

   (President of the Court denies any political influence). ↩

3. 3.

   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. 13(b), available online. ↩

4. 4.

   Id. Art. 16. ↩

5. 5.

   Id. Art. 15. ↩

6. 6.

   African Union, Assembly/AU/Dec.622(XXVIII), Decision on the International Criminal Court—Doc. EX.CL/1006(XXX) ¶ 8 (Jan. 2017), available online. ↩

7. 7.

   See generally, Richard H. Steinberg, Politics and Justice at the International Criminal Court, 57 Israel L. Rev. 308, 346–49 (Sep. 23, 2024), available online, doi. ↩

8. 8.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan ¶ 94 (ICC PTC II, Apr. 12, 2019), available online. ↩

9. 9.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan (ICC AC, Mar. 5, 2020), available online. ↩

10. 10.

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

11. 11.

    See Eugene Kontorovich, Unsettled: A Global Study Of Settlements In Occupied Territories, 9 J. Legal Analysis 285, 332–34 (Dec. 2017), available online, doi

    (describing Russian settlement policies in occupied Abkhazia). ↩

12. 12.

    Press Release, ICC, Situation in Georgia: ICC Pre-Trial Chamber Delivers Three Arrests Warrants (Jun. 30, 2022), available online. ↩

13. 13.

    Press Release, ICC, Ukraine Accepts ICC Jurisdiction Over Alleged Crimes Committed Since 20 February 2014 (Sep. 8, 2015), available online. ↩

14. 14.

    See Office of the Prosecutor, ICC, Report on Preliminary Examination Activities (2017) ¶ 101 (Dec. 4, 2017), available online.

    (For several years, the OTP said it had evidence that “the authorities of the Russian Federation have facilitated, through a number of means, the migration to Crimea of a significant number of Russian citizens, with the intention to settle there permanently.” All references to this suspected crime disappeared without explanation in the 2019 report and onward);

    See also Office of the Prosecutor, ICC, Report on Preliminary Examination Activities (2018) ¶ 80 (Dec. 5, 2018), available online. ↩

15. 15.

    Press Release, ICC, Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova (Mar. 17, 2023), available online. ↩

16. 16.

    Anna Gordon, New Polling Shows How Much Global Support Israel Has Lost, Time, Jan. 17, 2024, available online; see also Laura Silver, Most People Across 24 Surveyed Countries Have Negative Views of Israel and Netanyahu, Pew Res. Center (Jun. 3, 2025), available online. ↩

17. 17.

    Rome Statute, supra note 3, at Art. 21(1)(b). ↩

18. 18.

    Montevideo Convention of the Rights and Duties of States, Art. 1 (Dec. 26, 1933), available online. ↩

19. 19.

    Situation in the State of Palestine, ICC-01/18, Decision on the “Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” ¶ 93 (ICC PTC I, Feb. 5, 2021), available online. ↩

20. 20.

    See, e.g., United Nations Convention on the Law of the Sea, Art. 305(1)(c)-(e) (adopted Dec. 10, 1982, entered into force Nov. 16, 1994), available online

    (allowing “self-governing associated States” and “territories which enjoy full internal self-government, recognized as such by the United Nations,” to sign and ratify the Convention, provided they have competence over matters governed by the treaty);

    Convention on the Rights of Persons with Disabilities, A/RES/61/106, Art. 44 (adopted Dec. 13, 2006, entered into force May 3, 2008), available online

    (allowing membership by regional associations);

    Marrakesh Agreement Establishing the World Trade Organization, Art. XII (adopted Apr. 15, 1994, entered into force Jan. 1, 1995), available online. ↩

21. 21.

    Situation in the State of Palestine, supra note 19. ↩

22. 22.

    Eyal Benvenisti, Occupation, Belligerent, MPEPIL (May 2009), available online. ↩

23. 23.

    See, e.g., Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168 (Dec. 19, 2005), available online. ↩

24. 24.

    Office of the Prosecutor, ICC, Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report 16 at ¶ 27 (Nov. 6, 2014), available online. ↩

25. 25.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment pursuant to Article 74 of the Statute ¶ 520 (ICC TC I, Mar. 14, 2012), available online. ↩

26. 26.

    Id. at n.1611. ↩

27. 27.

    The Prosecutor v. Al Hassan Ag Abdoul Aziz, ICC-01/12-01/18-461-Corr-Red, Confirmation of Charges ¶ 220 (Sep. 30, 2019, as corrected Nov. 13, 2019), available online. ↩

28. 28.

    Id. at n.577. ↩

29. 29.

    See Carsten Stahn ed., The Law and Practice of the International Criminal Court (OUP May 1, 2015), paywall. ↩

30. 30.

    See Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (CUP 2009), paywall, doi. ↩

31. 31.

    Matthew Dalton, ICC Set Plan to Charge Netanyahu Just After Prosecutor Was Accused of Sexual Assault, Wall St. J., May 10, 2025, paywall. ↩

32. 32.

    Israel and U.S. Condemn ICC Arrest Warrants; Other Nations Vow to Enforce, Wash. Post, Nov. 21, 2024, paywall. ↩

33. 33.

    Barbara Tasch & Anna Holligan, Hungary Withdraws from International Criminal Court During Netanyahu Visit, BBC News, Apr. 3, 2025, available online. ↩

34. 34.

    Panel of Experts in International Law, ICC OTP, available online (last visited Jun. 10, 2025). ↩

35. 35.

    127 British Politicians Demand UK Impose Sanctions on Israel in the Event of Annexation of Occupied Palestinian Territory, Palestine Mission to UK (May 1, 2020), available online. ↩

36. 36.

    Hella Pick, Helena Kennedy Had Hoped the World Would Be in a Better Place by Now, Prospect, Oct. 24, 2023, available online. ↩

37. 37.

    Rory Carroll, Amal Alamuddin Refuses UN Offer to Investigate Possible War Crimes in Gaza, The Guardian, Aug. 11, 2014, available online. ↩

38. 38.

    Imran Mulla, Amal Clooney Critics Humbled as Role in Israel-Hamas ICC Arrest Warrant Bid Revealed, Mid. East Eye, May 21, 2024, available online. ↩

39. 39.

    Office of the Prosecutor, ICC, Code of Conduct for the Office of the Prosecutor, OTP 2013/024322, Arts. 23(c), 23(d) (entered into force Sep. 5, 2013), available online. ↩

40. 40.

    Kyle Orton, More Evidence Iran Was Behind the 7 October 2023 Massacre in Israel, It Can Always Get Worse Blog (Mar. 26, 2025), available online. ↩

41. 41.

    Kasra Aarabi, Editorial, The Evidence Shows Iran’s Lead Role in October 7, The Jewish Chronicle, Dec. 21, 2023, available online. ↩

42. 42.

    Dan Diker, Israel Under Fire—Iran’s Involvement in the October 7, 2023 Massacre, JCFA (Sep. 9, 2024), available online. ↩

43. Suggested Citation for this Comment:

    Eugene Kontorovich, The International Criminal Court is a Political Institution That, Like Other Bureaucracies, Seeks to Expand Its Authority and Budget, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics#Kontorovich.

    Suggested Citation for this Issue Generally:

    Is the ICC a Political Institution?, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics.

Argument Continued

The ICC has its own governing structure, or the Assembly of States Parties (ASP), to legislate its internal affairs and to deliberate on such matters as to whether a state party has been noncompliant with the Office of the Prosecutor’s (OTP) demands. To respond to extrinsic political forces, the ICC must rely on its legitimacy as an impartial legal institution to secure the cooperation of states. However, the ICC’s interventions also create political consequences that can challenge its efforts to defend its legitimacy. In an increasingly hostile multipolar world in which the Great Powers are either resisting or even sanctioning the Court for issuing arrest warrants against of its own people (or allied leaders), the ICC finds itself increasingly isolated. And yet if we assume that the ICC is merely a judicial tool of the Great Powers, we risk surrendering the ICC’s independence to these external political forces. By the same token, if the ICC’s independence is strictly equated with its apolitical status, then we risk disengaging it from the political circumstances shaping it.

The question, then, is whether the Court can defend and balance its impartiality against the political forces that threaten its legitimacy. The problem, I contend, is that the ICC lacks the political tools to properly defend its legitimacy and to operate effectively in politically sensitive situations. The Court, like any major actor in world politics requires a flexible and extended strategy to assert the power of its independence and to defend its mission of serving the interests of justice. In much the same way that the U.N. has had to interpret its mission to promote human rights (i.e., international peacekeeping, International Criminal Tribunals), or the World Trade Organization has had to grapple with extending its free trade mandate to fair trade, the ICC needs to broadly and flexibly reinterpret its mission of serving the international interests of justice. It can do this through a two-pronged prosecutorial strategy of engaging the contextual meanings of justice and championing the necessity for victims’ justice. In this way it will operate not as a disengaged apolitical institution, but as pragmatic court that develops and acts on its awareness (or expertise) of political circumstances.

In my early work on the ICC, I argued that there is an internal (ICC internal governance) and external political gap in how the ICC administers justice; that closing this gap will depend on how the ICC projects this internal dimension in its response to externalized politics.3 My argument in this comment is that this projection does not stop with the prosecutorial strategy of positive complementarity. Rather the ICC needs to develop a self-attuned prosecutorial strategy based on a soft power approach of defending its legitimacy through persuasion and political engagement that leads to effective practical results.4

I. Defending the ICC’s Legitimacy

The legitimacy of an international institution is based on public trust and the fair application of rules and norms.5 The Court derives its legitimacy from the public perception of its impartiality and independent discretionary power.6 Over the years, various states and international actors, such as the African Union (AU), Russia, and the United States, have challenged the ICC’s legitimacy by accusing it of being biased and politicized. This, in turn, has led the Court to defend its independence and impartiality in ways that acknowledged or perceived the need to accommodate these political demands. In 2012, for instance, the ASP elected Fatou Bensouda, a former Gambian judge and Deputy Prosecutor, who then proceeded to open up investigation in other parts of the world. Yet the shift in focus ultimately failed to address one of the AU’s core concerns: the outstanding arrest warrant against Omar Hassan Al Bashir (although it would later drop its arrest warrant for Uhuru Kenyatta). Had it dropped the arrest warrant against Al Bashir, the ICC clearly would have lost credibility as a legal institution. In fact, the decision would have been seen as purely political or a usurpation by the AU of the ICC’s mission to uphold the rule of law. The point here is that external political forces may necessarily compel (and rightfully so) the ICC to bend its own rules and norms without unduly compromising its ability to serve the interests of justice. As an international actor in world politics, the ICC has a conditional obligation to confront external political pressures; otherwise, it will lose the opportunities to leverage its legitimacy to shape outcomes in international affairs.

In this way, much of the Court’s legitimacy depends on its efforts to credibly enforce its rulings and decisions. This means that it must work with state officials and local police forces to carry out its arrest warrants. But, so far, a number of states parties have refused to cooperate with the ICC on this basis. On April 3, 2025, for instance, Victor Orban, the Prime Minister of Hungary (a state party), met with the Israeli leader Benjamin Netanyahu (who the ICC charged with war crimes and crimes against humanity) in Hungary, dismissing Hungary’s duty to arrest and surrender Netanyahu to the Court. The day after the meeting, Orban announced that Hungary would withdraw from the ICC.7

Another notable case of non-compliance concerned South Africa’s decision in 2015 to not surrender Al Bashir, the leader of Sudan. Two years later, the Pre-Trial Chamber determined that South Africa was not compliant. But unlike other cases of non-compliance, the ICC did not refer South Africa’s non-compliance to the ASP, nor the U.N. Security Council. The Pre-Trial Chamber’s inaction was meant to give South Africa another opportunity to cooperate with the Court in the future. For the OTP and justice advocates, its decision demonstrated that non-compliance would have no consequences and that this would only encourage other states to not cooperate with the ICC.8

On the other hand, the U.N. Security Council has yet to act on thirteen prior cases of non-compliance referred by the Pre-Trial Chamber. Such action testifies to the political obstacles inside the U.N. Security Council, where three of the permanent members have remained skeptical of the Court’s intervention. It also shows how the ICC’s legitimacy depends, to some degree, on outside political actors to deter states from not cooperating with the Court. Given these factors, there remains a very delicate balance between functioning as a legal institution and relying on political institutions to enforce its legal decisions. And yet, to maintain this balance, the ICC must relentlessly and consistently push back against states that do not comply with their obligations, even if the U.N. Security Council is unwilling to carry out the ICC’s requests.

The ICC’s legitimacy is also about performance. If it loses credibility by rescinding an arrest warrant for high-ranking officials, it of course gains legitimacy by prosecuting them (i.e. Kenyatta attending his early prosecutorial proceedings in 2012). On March 12, 2025, for example, ICC authorities detained and sent Rodrigo Duterte, the former President of the Philippines, to the Hague.9 Apparently, Duterte had upset current President Bongbong Marcos, prompting him to lift his protection of Duterte.10 The arrest attracted global attention and reassured many that the Court was still relevant and effective in carrying out its mission in an increasingly hostile world where powerful states seek to limit its reach and non-powerful states use it as a tool to legitimize their political power (i.e., the self-referral by President Joseph Kabila of the Democratic Republic of the Congo that resulted in the arrest of his political rival Jean-Pierre Bemba who was then prosecuted and sentenced by the ICC)11.

The ICC, in short, can ill-afford to ignore its own political duty to push back at non-compliance and uphold the rule of law. Nor should it expect its performance or prosecutions to dramatically increase in the coming years. In an increasingly hostile multipolar world, the ICC has become a virtual public enemy of the Great Powers. How, then, will the ICC’s confrontation with the Great Powers affect the gap between its legal mission and politics? Will it force the ICC to draw on and project more of its own internal (governance) political resources, i.e., the ASP and a prosecutorial strategy based on positive complementarity, to close this gap?

II. Power Politics

The Great Powers include the United States, China, and Russia. Each reserve the power to unduly limit and restrict the Court’s activities. Some have argued that the ICC remains an extricable part of a neo-imperialist system in which the Great Powers exploit the Court for political gain and marginalize weaker states;12 while others claim that the ICC has little choice but to seek accommodation with the Great Powers or other powerful non-party states, including offering special protection or immunity status of military personnel belonging to non-state parties, (i.e., as stipulated in various U.N. Security Council Resolutions).13

Such special protection grew out of the United States’ opposition to the Court, which reached a feverish pitch in April 2002 after the U.N. announced that the Court would start its operations on July 2002. The United States threatened to pull out all of its troops from the Bosnian peace keeping mission unless the U.N. provided special immunity to its troops by July 1. When it began to carry out its threat in late June 2002, the U.N. Security Council called an emergency meeting to address the situation.14 This resulted in S.C. Resolution 1422, which stipulated that all officials belonging to non-state parties would be immune from ICC jurisdiction and prosecution.15

The special protection clause was seen as a necessary tool to accommodate the United States’ concerns about the ICC’s targeting its military personnel. Whether or not the United States had anything to fear in this case, it remains unclear if such continued accommodation has facilitated the practical, working ties between the ICC and the powerful states sitting on the Security Council. For instance, U.N. Security Council Resolution 1970, which referred the situation in Libya to the OTP, led to the arrest warrants of its Leader Colonel Muammar Gaddafi, his son Saif Al-Islam Gaddafi and national security advisor, Abdullah Al-Senussi. The referral meant that the ICC would help the Security Council permanent members, particularly the United States, to achieve one of its primary political aims: sidelining Gaddafi. But after Gaddafi’s killing in October 2011, the Security Council members showed little or no interest in facilitating the ICC’s operations. Having achieved one of its political aims of taking out of Gaddafi, it had little use for the ICC. The Security Council members, it seemed, had supported the ICC not out of legal obligation but political expedience.16

What this suggests is that the ICC can do little to shape the political aims of the Great Powers. Nor should it try to do so through persuasion. For the Great Powers uneasy relationship with ICC presupposes the tendency to react against and not act with Court. This is illustrated by the Biden administration’s tacit support of the arrest warrant for President Vladimir Putin, which had helped further isolate Putin, and the Trump administration’s subsequent condemnation of the ICC as biased and irrelevant.

But if the ICC is indeed an ineffectual actor, then why has the Trump Administration gone to such extreme measures to punish it? Trump’s executive order in February 2025, for instance, brought back the provisions of an earlier executive order sanctioning the Chief Prosecutor, Fatou Bensouda (an executive order that President Biden had rescinded).17 Trump’s hostile attack on the Court is not simply about bullying the Court, but about how it fears the Court’s role in upholding the rule of law. The authoritarian rule of the Great Powers effectively rules out any working pragmatic ties with the ICC. Yet the idea that the ICC can be instrumentalized by powerful democratic states underscores not simply the limit of its working ties but the potential to better persuade the powerful and non-powerful states; hence, to project a prosecutorial strategy that extends beyond the legal parameters of positive complementarity.

III. Politics and Withdrawal

State hostility of course is not just limited to the Great Powers. In a 2010 resolution, the AU openly accused the Court of being biased and partial against African states.18 It then issued a resolution in January 2017, calling on all member states to withdraw from the ICC.19 The 2017 resolution also reiterated the need for the U.N. Security Council to suspend the ICC investigation of Al Bashir, and to condemn the abuse of the universal jurisdiction principle by non-state parties. While the ICC has failed to redress the long built-up grievances of African states, it also has also encouraged some states to exploit them.

As some have argued, when the political risks of complying are high, African states, like powerful states, will use the Court to their political advantage.20 In Kenya, for instance, the new President Uhuru Kenyatta saw on opportunity to mobilize his people around the unfair intervention of the ICC and its attendant arrest warrant for Kenyatta.21 The Court’s apoliticality, in this sense, is most effective when the risks of non-compliance are low. The problem for the ICC is convincing African states that it is apolitical or committed to applying its rules of procedure impartially to promote justice in African states.

The main effect of this apolitical approach is the ICC’s own withdrawal from African situations. Transitional justice scholars have framed the withdrawal in terms of the distant relations between the ICC and local peoples. In his book Distant Justice, Phil Clark argues that the ICC administers “distant justice” in these countries by being geographically distant from its situations and failing to engage its local justice norms and the people. As a result, the ICC tends to ignore the political circumstances of its interventions and prefers to see its actions as strictly apolitical.22 In reality, its interventions create political conditions that impede its efforts to administer justice. As Clark writes:

Claiming to be ‘apolitical’ and refusing to pay enough attention to how the local terrain works doesn’t make the Court apolitical, quite the opposite. I am worried about the directions the ASP is also taking at the moment. Its desire for a streamlined rather than bolstered ICC is likely to leave the Court worse off.23

Clark recommends that the ICC develop or hire staff with political expertise of the local conditions to address the people’s grievances and concerns with the ICC’s activities. While some of this can be done by extending and improving the Court’s outreach programs in these countries, it is ultimately up to the OTP and the ASP to devise contextual approaches to address the political circumstances and to become more effective in administering justice in non-powerful countries. This means accommodating local forms of justice in ways that facilitate the local people’s internalization of ICC norms and their participation in the legal process.24 Such a people’s-based strategy becomes a pragmatic endeavor, which can be best applied in less powerful states to pressure corrupt states while building trust in the ICC’s capacity to administer justice and to promote long-term peace.

IV. Conclusion: A More Pragmatic Strategy?

The need for a more politically engaged Court, however, raises a difficult question: How will this political engagement be balanced against public perception of its impartiality? The ICC’s prosecutorial strategy has largely rested on positive complementarity or working and assisting states to secure state cooperation.25 But the ICC should also try to move this strategy by encouraging the OTP to internalize the preferences of states—including non-state parties of the Court—whose cooperation is important for the Court to fulfil its mission.26 Christopher Rudolf, for example, frames this internalization in terms of a prosecutorial strategy that can determine the practical application of the ICC’s actions and activities. When prosecutorial power is tested by the political consequences, it becomes more flexible, that is, more capable of adapting to the changing political conditions that threaten its application.

This is another way of expressing the ICC’s soft power—its ability to shape the preferences of acts through moral persuasion.27 To be morally and politically persuasive is to develop the tools for engaging with the political consequences of its actions. This means engaging in negotiations that produce practical and meaningful results for the ICC’s legitimacy as well as being equipped with the knowledge of political consequences that can facilitate its persuasive capacity.28 In 2009, Moreno Ocampo, demonstrated this capacity when he negotiated in person with President Yoweri Museveni of Uganda to reconsider his decision to meet with the fugitive Head of State Al Bashir in Kampala. The negotiations seemed to pay off; Museveni elected to cancel the meeting, sparing the ICC yet another incident of state non-compliance.29 Achieving such practical results (for its legitimacy) will require the ICC to persuade political authorities to surrender its indicted former leaders.

But this also means realizing the geopolitical limits of its administration of justice; that, at least for now, the Courts pragmatic potential will lie in its interventions of the non-powerful states and some powerful democratic states. With the Great Powers attacking the ICC at various levels, it has become increasingly important to win back the African States that have either withdrawn from or resisted the ICC over the past several years. After all, the ICC’s independence was born from conflicting political viewpoints about the proper extent of prosecutorial power. Defending this independence is a process of managing the consequences of upholding the rule of law and preserving the credibility and legal impartiality of the Court. In the end, to navigate the hostile politics of an increasingly hostile multipolar world, the ICC will need to better persuade the non-powerful states about the inclusivity of international justice.

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

1. 1.

   See Richard H. Steinberg, Politics and Justice at the International Criminal Court, 57 Israel L. Rev. 308 (Sep. 2024), available online, doi; Holly Cullen, Phillip Kastner & Sean Richmond eds., The Politics of International Criminal Law (Dec. 2020), paywall. ↩

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, as amended [hereinafter Rome Statute], Preamble, available online. ↩

3. 3.

   I argue this point in Steven C. Roach, Legitimising Negotiated Justice: The International Criminal Court and Flexible Governance, 17 Int’l J. of Hum. Rts. 619 (Aug. 2013), available online, doi; see also Steven C. Roach, Politicizing the International Criminal Court: The Convergence of Politics, Ethics, and Law (Rowman & Littlefield Aug. 2006), paywall; see also Steven C. Roach ed., Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court (OUP May 2009), paywall. ↩

4. 4.

   See Steven C. Roach, How Political Is the ICC? Pressing Challenges and the Need for Diplomatic Efficacy, 19 Global Governance 507 (2013), paywall, doi. ↩

5. 5.

   See Ian Hurd, Legitimacy and Authority in International Politics, 53 Int’l Org. 379 (1999), available online.

   Thomas M. Franck, The Power of Legitimacy Among Nations (OUP Jul. 1990), paywall, preview available online. ↩

6. 6.

   See, e.g., Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400 (2008), available online. ↩

7. 7.

   Barbara Tasch & Anna Holligan, Hungary Withdraws From International Criminal Court During Netanyahu Visit, BBC News, Apr. 3, 2025, available online. ↩

8. 8.

   Mark Kersten, Non-Compliance But No Referral: The ICC Muddies the Waters, Just. in Conflict (Jul. 20, 2017), available online. ↩

9. 9.

   Press Release, ICC, Situation in the Philippines: Rodrigo Roa Duterte in ICC Custody (Mar. 12, 2025), available online. ↩

10. 10.

    Office of the Prosecutor, ICC, Statement on the Arrest of Former Philippine President Rodrigo Roa Duterte (Mar. 12, 2025), available online. ↩

11. 11.

    The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-388, Decision Adjourning the Hearing pursuant to Article 61(7)(c)(ii) of the Rome Statute (ICC PTC III, Mar. 3, 2009), available online. ↩

12. 12.

    Tim Murithi, Judicial Imperialism: The Politicisation of International Criminal Justice in Africa (Fanele Sep. 2019), available online. ↩

13. 13.

    David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 11 (OUP Jan. 2014), paywall. ↩

14. 14.

    See Roach, supra note 3, et seq. ↩

15. 15.

    S.C. Res. 1422, U.N. Doc. S/RES/1422 (Jul. 12, 2002), available online. ↩

16. 16.

    Mark Kersten, Between Justice and Politics: The ICC’s Intervention in Libya, in Contested Justice: The Politics and Practice of International Criminal Court Interventions 456, 469 (Christian De Vos, Sara Kendall & Carsten Stahn eds., CUP 2015), available online, doi. ↩

17. 17.

    Presidential Executive Order 14203: Imposing Sanctions on the International Criminal Court, 90 FR 9369 (Feb. 6, 2025), available online. ↩

18. 18.

    African Union, Assembly/AU/Dec.270(XIV), Decision on the Report of the Second Meeting of States Parties to the Rome Statute on the International Criminal Court (ICC) Doc. Assembly/AU/8(XIV) (adopted Feb. 2, 2010), available online. ↩

19. 19.

    African Union, Assembly/AU/Dec.622(XXVIII), Decision on the International Criminal Court—Doc. EX.CL/1006 (Jan. 2017), available online. ↩

20. 20.

    Oumar Ba, States of Justice: The Politics of the International Court (CUP 2020), paywall, doi. ↩

21. 21.

    Id. at 182. ↩

22. 22.

    Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics (CUP 2018), paywall, doi; see also Steven C. Roach, Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability, 13 Int’l Crim. L. Rev. 249 (Jan. 2013), available online, doi. ↩

23. 23.

    Taegin Reisman, Interview with Phil Clark: ICC an Institution in Need of Bolstering, Journalists for Justice (Apr. 5, 2019), available online. ↩

24. 24.

    Christian De Vos, Sara Kendall & Carsten Stahn, Introduction, in Contested Justice 1, supra note 16. ↩

25. 25.

    See Office of the Prosecutor, ICC, Report on Prosecutorial Strategy 5 (Sep. 14, 2006), available online. ↩

26. 26.

    Christopher Rudolph, Power and Principle: The Politics of International Criminal Courts 6 (Cornell U. Press Apr. 18, 2017), paywall. ↩

27. 27.

    Joseph S. Nye Jr., Soft Power: The Means to Success in World Politics 6–9 (Apr. 2005), paywall. ↩

28. 28.

    See Roach, supra note 4, at 509. ↩

29. 29.

    Prosecutor (Barry Stevens director, 2010), paywall. ↩

30. Suggested Citation for this Comment:

    Steven C. Roach, The Pragmatic Politics of the International Criminal Court, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics#Roach.

    Suggested Citation for this Issue Generally:

    Is the ICC a Political Institution?, ICC Forum (Jun. 19, 2025), available at https://iccforum.com/politics.