top of page

Sovereignty and Stalemates: Rethinking the ICC’s Struggle with State Non-Compliance

Writer's picture: BJILBJIL

About the Authors: Param Kailash is a fourth-year student at Symbiosis Law School, Pune, with a strong interest in Private and Public International Law, International Relations, and Finance. An avid writer, he contributes insightful articles to various blogs and journals, analyzing contemporary legal developments across Corporate Law and related fields. He can be reached at parambkailash@outlook.com.

Sudiksha Moorthi is also a fourth-year student at Symbiosis Law School, Pune, with a focus on International Criminal Law, White-Collar Crimes, and Financial Regulation. Passionate about legal writing, she explores key developments in both Indian and global legal landscapes through her contributions to various publications. She can be reached at sudikshamoorthi@outlook.com.


First Resumption of the Seventh Session of the Assembly of States Parties at United Nations Headquarters in New York. Available here.
First Resumption of the Seventh Session of the Assembly of States Parties at United Nations Headquarters in New York. Available here.

Introduction

The International Criminal Court ("ICC") and other International Criminal Law ("ICL") tribunals have been continually praised for their commitment to prosecuting perpetrators of the most severe crimes. However, the ICL and human rights communities have sometimes displayed undue optimism towards the ICC, and have perhaps grown complacent with its failures.


The application for arrest warrants by Karim A.A. Khan KC before Pre-Trial Chamber I (PTC-1) against Benjamin Netanyahu, Yoav Gallant, and Hamas leaders for crimes against humanity and war crimes on May 20, 2024, has recently brought the ICC into the limelight. Scrutiny towards the role of the ICC was also furthered through the most recent arrest warrant issued against Iyad Ad Ghaly for crimes against humanity and war crimes on June 21, 2024. These arrest warrants, aiming to symbolize a beacon of hope, fall drastically short when judged against the metrics of successful implementation. The ICC’s dependence on participation and cooperation by state parties to transfer wanted suspects into custody and follow Court proceedings warrants rightful doubt and fosters disbelief in the system.


We argue that the ICC’s reliance on state parties and subsequent failures in executing arrest warrants, especially considering recent events in Palestine, expose the limitations of the Court’s functionality in modern global affairs. This reality risks leading to a post-mortem of the Court.


Functional Implications – Modern-day Examples

Despite measures to curb non-compliance, 30 individuals against whom the ICC has issued arrest warrants remain at large to date. Collectively, these perpetrators are sought for over 200 counts of crimes, including war crimes, crimes against humanity, genocide, and offenses against the administration of justice. Moreover, the Court issued seven of these arrest warrants over a decade ago. This persistent failure to execute warrants represents a notable oversight, undermining the ICC’s ability to prosecute individuals who pose a significant threat to the international community.  


It is imperative to recognize that the crimes prosecuted by the Court do not occur in isolation; these crimes occur in broader contexts of systemic and extreme criminality intended to serve larger goals. For instance, the situation in Darfur has resulted in the deaths of hundreds of thousands of civilian lives and the displacement of 7.1 million people in pursuance of ethnic cleansing against non-Arabs. 


The failure to enforce arrest warrants undermines judicial authority, endangers witnesses and victims, compromises evidence, and fails to establish a deterrence mechanism. This inability to execute arrest warrants, even in cases considered ‘dire by any metric’ by the Office of the Prosecutor (“OTP”), involving crimes against humanity, war crimes, and genocide, calls into question the ICC’s relevance and authority. 


There are numerous instances where suspects have visited states party to the Statute, only for the relevant authorities of such states to refuse to arrest them. For example,  Al-Bashir, the first sitting head of state ever indicted by the ICC, visited Djibouti, Nigeria, Chad, and South Africa - all parties to the Statute - without being transferred to the ICC. These visits occurred despite warrants for five counts of crimes against humanity, two counts of war crimes, and three counts of genocide. 


The fundamental need for states to maintain diplomatic and trade relations with neighboring countries and trade blocs tends to override their obligations under international treaties. This dynamic has been demonstrated in cases such as Al Bashir’s and Abdel Raheem Muhammad’s, where the African Union’s decision urged member states not to comply with ICC warrants. In both instances, Chad received Bashir and Abdel Raheem and attributed the non-compliance to failures in communication between its justice and foreign affairs ministers. However, ICC judges deemed this reasoning invalid and the ICC judges construed the avoidance as intentional. During this time, Sudan and Chad developed strong diplomatic ties and deployed a Border Control Force along their common borders, which likely contributed to the non-execution of arrest warrants. Despite Chad’s non-compliance, the UNSC chose to take no action against Chad, neither imposing consequences nor deterring other states from engaging in similar behavior.   


In addition to the non-compliance by state parties, the United Nations ("UN") has also defied the ICC arrest warrants. For example, Ahmad Muhammad Harun was appointed to oversee the United Nations African Union Mission in Darfur (UNAMID) despite an outstanding arrest warrant and facing 20 counts of crimes against humanity and 22 counts of war crimes for his actions in Darfur, Sudan. Furthermore, in 2011, the UN facilitated his travel within Darfur, completely disregarding the warrant. 


The Rome Statute provides that non-compliance can be referred to the ASP or the UN Security Council. However, in all the communications made to the ASP and UNSC, no plausible enforcing mechanism has been developed, and the Statute lacks clear guidelines or provisions to direct further action by the ASP and UNSC. As a result, suspects remain at large for decades, with no consequences for states that refuse to comply. This lack of enforcement and the ICC’s reliance on voluntary cooperation are weaknesses that have been criticized even by ICC judges themselves.


Politics in the ICC

One of the primary reasons for state party non-compliance is the political dynamics that influence the Court’s operations. The politicization of the Court was established with the introduction of the UNSC into the functioning of the ICC. The veto power of the United States in the UNSC raises doubts about the council’s reliability in contributing to the ICC, particularly given the tensions between the US and the Court that existed even before the Statute entered into force. The Rome Statute was adopted with the US voting against it, and the US has continuously resisted the Court through measures such as the Foreign Relations Authorization Act, which prohibits any US financial support to the ICC, and the US’s abstention from the vote to refer the situation in Darfur to the ICC. These dynamics render the execution of politically sensitive arrest warrants, such as the one against Netanyahu, nearly impossible. Historical precedents suggest that without significant structural changes to the ICC’s operations, instances of non-compliance will persist, undermining the Court’s credibility and effectiveness. 


Recently, the U.S. has demonstrated its resistance to the ICC by threatening potential sanctions in response to the OTP’s application for arrest warrants against Netanyahu. Given the current geopolitical climate and the U.S.'s global influence, persistent non-compliance with the ICC could become the norm. This reluctance raises critical concerns, as the extensive powers of the Assembly of State Parties allow for the Court to be swayed by powerful or bloc-aligned states.


Unless fundamental change is brought about to the operations of the ICC, these instances of non-compliance will repeat persistently. In a situation where Netanyahu’s arrest warrant is issued by PTC-1, especially considering the US’s unwavering support to Israel, previous records suggest execution of such a warrant is nearly impossible. 


The Way Forward

We suggest a two-fold mechanism to enhance the ICC’s judicial process: firstly, in absentia or remote proceedings ought to be established by the Court, similar to those adopted by the ICTY under Rule 61 of the Rules of Procedure and Evidence and the ICTR under Rule 82 of the Rules of Procedure and Evidence. These rules allow for in absentia proceedings, which permit the confirmation of charges and the trial and presentation of evidence in open Court without the accused being present. Although these provisions go beyond the current scope of the Rome Statute, we recommend implementing a similar procedure, at least to confirm charges at the pre-trial stage in exceptional circumstances such as the Bashir case. 


Secondly, the ICC must effectively utilize its principle of complementarity by establishing a prosecutorial mechanism in collaboration with domestic judicial institutions. This system would enable the ICC to support local investigations and indictments, enhancing its capacity to address international crimes within domestic contexts. While these recommendations may strengthen the Court’s operational framework, challenges for enforcement, geopolitical biases, and international political dynamics suggest that international law will continue to struggle to overcome the inherent structural limitations and deliver consistent and impactful justice. 


Conclusion

International law and treaty obligations have become largely symbolic rather than practical due to a lack of political inclination to enforce them. The ICC’s reliance on state parties to execute arrest warrants has exposed significant flaws within its operational framework. Notwithstanding the Court’s noble intentions and the robust legal framework created by the Rome Statute, political and administrative challenges continue to obstruct the effective execution of the Court's judicial process. Persistent non-compliance and politicization of the Court have left over 200 counts of some of the most serious crimes unresolved, emphasizing the critical need to implement institutional reform. Without decisive action, the ICC risks fading into irrelevance in the realm of international justice rather than standing as its champion.

4 comments

Recent Posts

See All

4件のコメント


Ramesh Narayanan
Ramesh Narayanan
2 days ago

Well written by Param b and Subiksha,Kudos dear ones hoping crimes in all stages diminish,humanity a win.♥️😍to the sweet authors.

いいね!
Sudiksha Moorthi
Sudiksha Moorthi
13 minutes ago
返信先

Thank you!😊

いいね!

Priya Vasudevan
Priya Vasudevan
3 days ago

This is a very informative article ! The examples and facts behind the views makes for easy read and understanding. Kudos to Param and Subiksha. The recommendation especially the first one seems pragmatic ! As the authors mention world needs to move beyond Operational framework to strong intent especially on the part of Global leadership

いいね!
Sudiksha Moorthi
Sudiksha Moorthi
13 minutes ago
返信先

Thank you so so much!

いいね!
bottom of page