The Role of the ICC: Understanding International Justice

History and Background

The International Criminal Court (ICC) is an independent judicial body to hold individuals accused of the most serious crimes to account in the global community. In the aftermath of WW2, the Nuremberg and Tokyo trials became the first international criminal tribunals used to prosecute individuals responsible for the atrocities committed in Nazi Germany and Imperial Japan. Similar tribunals were set up in the 1990s to investigate crimes in Rwanda and the former state of Yugoslavia.

Nevertheless, the temporary nature of these courts led to a consensus among nations that a permanent court was needed to address future and ongoing concerns. 120 states voted in favour of the Rome Statute during a conference in 1998, which put forward the establishment of the ICC. The Court came into effect on 1 July 2002.

The ICC’s Jurisdiction

The Rome Statute lists four crimes that the ICC has jurisdiction over: war crimes, genocide, crimes against humanity, and crimes of aggression. Jurisdiction can only be applied on crimes committed after 1 July 2002 (or 17 July 2018 for the crime of aggression) and when one of the following preconditions has been met:

1.     The alleged crimes are committed in the territory of a State Party or on its registered vessel or aircraft.

2.     The accused is a national of a State Party.

3.      A non-State Party has voluntarily agreed to give the ICC jurisdiction.

These preconditions also apply when a State Party refers a case to the Prosecutor or when the Prosecutor initiates an investigation proprio motu (at their own initiative).

On the other hand, this is different for the crime of aggression, where the Court can only exercise jurisdiction over cases after 17 July 2018, when the Kampala Amendments were first activated. State Parties that ratify these amendments will fall under the ICC’s jurisdiction over the crime of aggression one year after the ratification date, unless they opt out. This means that non-State Parties—regardless of aggressor or victim status—are excluded from the Court’s jurisdiction for this specific crime.

However, none of these conditions need to be applied to any crimes if the UN Security Council refers a case to the ICC.

Case Study: Israel-Hamas Conflict

On 21 November 2024, the ICC announced arrest warrants for leaders in the Israel-Hamas conflict, including Israeli Prime Minister Benjamin Netanyahu, his former defence minister Yoav Gallant, and Hamas military commander Mohammed Deif. This was based on alleged war crimes and crimes against humanity that took place on and after 7 October 2023 in Gaza. Deif was found to be responsible for acts of murder, torture, rape, and hostage-taking, among other crimes, while the Israeli leaders were accused of blocking humanitarian aid, leading to starvation as a method of warfare, as well as murder, persecution, and directing attacks against civilians, among others.

Although Israel is not a State Party to the Rome Statute, Palestine became a State Party in 2015, meaning the ICC still has jurisdiction as per the precondition granting jurisdiction for crimes committed on the territory of a State Party. In theory, all 125 State Parties (as of January 2025) have a legal requirement to cooperate with the arrest warrants issued by the ICC. Unfortunately, this is not necessarily always followed, as seen in September 2024 when Mongolia—a State Party—welcomed President Vladimir Putin of Russia in the country despite an ongoing ICC arrest warrant for him. The United States, which is a key ally of Israel and strongly opposed to the arrests of the Israeli leaders, is not a State Party and therefore is not required to arrest them. Some EU countries like Germany and France—who are all State Parties—have argued that the Israeli leaders have immunity from ICC arrest warrants because of Israel’s lack of membership, which goes against the principles of the Rome Statute. Meanwhile, most EU member states have agreed to comply with the arrest warrants.

Conclusion

The disparity in State Parties choosing whether to uphold arrest warrants shows the ICC’s lack of enforceable jurisdiction, often failing to force states to act in accordance with its rulings, which suggests the ineffectiveness of the Court. Therefore, it highlights the need for stronger enforcement procedures, such as harsher consequences for non-compliance, and for improving the legitimacy of rulings through consistent application across all situations.