The ICC in Crisis: Realpolitik and the Limits of International Justice

On September 3rd, 2024, Vladimir Putin and his Mongolian counterpart, President Khurelsukh Ukhnaa, walked down a broad avenue in Ulaanbaatar, Mongolia’s capital city, pausing between red velvet pillars for a photograph. Flanked by golden-helmed Mongolian troops goosestepping in formation, the two leaders continued their stroll on the red carpet, passing rows of cavalry clad in ceremonial armor inspired by the 13th-century scions of Genghis Khan. Putin’s visit to Mongolia, his first to an International Criminal Court member state since the issuance of his 2023 arrest warrant, highlighted the ICC’s struggles to enforce its authority against powerful actors. While the trip ostensibly commemorated the Russo-Mongolian victory in the 1937 Battle of Khalkhin Gol, Putin likely gave little thought to the joint victory nearly a century ago. Instead, his visit to Mongolia marked the most explicit rupture in the ICC’s fragile balancing act since its founding, proving that member states like Mongolia would protect pragmatic interests before paying lip service to the ideals of collaborative international justice. Faced with growing disregard for its authority, the ICC finds itself in a precarious position.

Just a year prior, South African politicians—bound by the Court’s founding document, the Rome Statute, to enforce the Court’s verdicts—had not been so bold. In the leadup to the South African BRICS economic summit in August 2023, President Cyril Ramphosa and his aides lobbied the Kremlin for months to ensure that Putin, who the Court has labeled a war criminal, would refrain from attending in person, seeking to balance their interest in Russian participation against a breach of international law. President Ramphosa explained the potential consequences of carrying out his ICC obligations in dire terms: “[A]rresting [Russia’s] sitting president would be a declaration of war.” South Africa has sound reasons for keeping Putin away. Unlike Mongolia—which depends on Russia for 95% of its petroleum products and has little to gain from cooperation with the West—any South African breach of its ICC commitments would undoubtedly be accompanied by wide-ranging reputational costs and damaged relations with the West. Seeking to maintain an influx of critical Western foreign investment, aid, and defense support, South Africa has powerful incentives to maintain its links to the West, even as Russia’s pariah status wanes among nations unaffiliated with NATO or unaligned with authoritarian blocs.”

However, even Western support for the ICC has dwindled in recent months since ICC prosecutor Karim A. A. Khan applied for arrest warrants against Israeli Premier Benjamin Netanyahu and his former defense minister, Yoav Gallant, for crimes against humanity in the Gaza Strip. Since pre-trial judges issued those arrest warrants on November 21st, 2024, a growing chorus of US officials has called for a harsh response against the ICC: Sen. Lindsey Graham called for sanctions against the ICC, labeling the action “outrageous, unlawful, [and] dangerous.” On the other side of the aisle, Hakim Jefferies called such action “shameful.” Previously, a bipartisan group of influential pro-Israel Senators, including Graham, Cardin, Thune, Blumenthal, Ernst, and Fetterman, put the Hague on notice, warning that “any action by the Court regarding arrest warrants for Israeli officials…would cast doubt on the Court’s actions, and jeopardize the credibility of the ICC more broadly.” Undoubtedly, in the eyes of pro-Israel powerbrokers in the US, the Court’s recent decision to issue warrants against Netanyahu and Gallant has done just that.

Since its inception in 2002, the Court has faced finger-pointing from both sides of the international aisle. Those in the global south label it an “instrument of imperialism,” while UN Security Council members like the US, Russia, and China never deigned to join, citing its vague legal stipulations and the adequacy of their domestic judicial systems to prosecute such crimes. If Rome Statute signatories like Mongolia and South Africa continue to waver in their responsibilities, or the West rescinds its support, the Court faces jurisdictional collapse. Thus, the ICC faces a dilemma that strikes at the heart of its identity: feign impartiality and continue its piecemeal prosecution of non-state actors and terrorist groups with the West’s support, or pursue heads of state and risk rendering itself impotent. A much-needed dose of realpolitik is in order. Arguably, if the ICC cannot recognize the futility of neutrality in a multipolar world, the Court will find itself left out in the cold, repudiated by authoritarian leaders due to its regard for human rights, and discarded by a West that could not bring it to heel.

To better understand the present situation the ICC faces—and how it might be rectified—we must examine the Court’s founding principles and the legal mechanisms that constitute its jurisdictional claims. Since it was enacted on July 1st, 2002, the Court’s purview has encompassed four principal crimes: genocide, crimes against humanity, war crimes, and the crime of aggression first established in the Nuremberg and Tokyo trials. The Rome Statute, the ICC’s founding charter, specifies that “[the Court] shall be complementary to national criminal jurisdictions” in pursuit of such criminals. This phrase, so subtle in the founding document’s parlance, outlines the “principle of complementarity” and binds the Court to the legal principle of ne bis in idem (“not twice in the same matter”). This sentiment, reflected in the Fifth Amendment’s “double jeopardy” clause, essentially means the Court thus cannot prosecute offenders for crimes against humanity if those selfsame crimes have been addressed in state courts as ordinary crimes such as rape or murder.

Moreover, the “principle of complementarity” requires that the ICC respect good-faith attempts of states to hold offenders accountable and allow proper buffer time for states to investigate. However, these principles greatly restrict the Court’s powers, limiting them under Article 17 of the Statute to cases where “the State is unwilling or unable genuinely to carry out the investigation or prosecution…[or] the State has decided not to prosecute the person concerned.” The vagueness of these clauses raises pressing questions, as noted by Linda E. Carter, a law professor and consultant to the defense at the ICC from 2018-2022, in her article, “The Principle of Complementarity and the International Criminal Court: The Role of Ne Bis in Idem.” What if, as provided for in Articles 17 and 20 of the Rome Statute, the state holds a “sham trial designed to shield the accused from responsibility,” thereby cleverly negating ne bis in idem? Such a proceeding would turn the Court into a farce and could be used to diminish and exploit the Court’s jurisdiction in all states. Such possibilities must encourage the Court to acknowledge the fragility inherent in its jurisdictional claim. If the Court rushes to issue warrants or does not give a wide berth to nations with well-functioning judiciaries—as it has been accused of in recent months—it risks compromising its legitimacy altogether.

Hidden within the complementarity principle, despite the gaping chinks in its armor, lies the Court’s true strength: pressure. If the Court attempts to engage with the whole—yet illusory —scope of its supposed jurisdictional powers, it will inevitably fall short for all the world to see.  Recriminations between the ICC and Israel stemming from the pretrial judge’s decision to issue arrest warrants for Netanyahu and Gallant presented such a scenario—wherein member states are forced to pick a side. While the Court argued that Israel’s investigations are disingenuous, Israel contended that its legal system is capable of addressing such issues internally and accused the ICC of being a biased actor. Instead of issuing controversial—and likely ineffective—arrest warrants for heads of state, the Court should look to its past to remember its real influence: the capacity to create real costs to international appearance and meaningfully prosecute small-time war criminals. 

For example, a Russian court recently sentenced two Russian soldiers to life in prison for murdering a Ukrainian family of nine, with prosecutors arguing—in language reminiscent of the Rome Statute—that the perpetrators were “motivated by political, ideological, racial, national, or religious hatred.” While international onlookers, enraged by Russian atrocities in Ukraine, might label such action paltry and insufficient, I believe that it presents a true victory for justice, however small. Such proceedings should encourage the Court to invest its energies in the documentation of crimes, rather than in harmless warrants or trials in absentia. Despite past allegations that the ICC unfairly targets war criminals in Africa, the Court should instead refocus on such non-state actors, often bereft of any state protection, as opportunities to exercise its power while creating impactful justice. Despite its challenges, the ICC has demonstrated its value in cases like the prosecution of Congolese warlord Thomas Lubanga, whose trial set a precedent for addressing the use of child soldiers. Through a realistic understanding of its scope and authority in the international sphere, these successes show the Court can instead use its powers to arrest warlords and pressure rogue state actors, generating viable incentives for states to protect their reputation by curtailing violations and even spurring begrudging state judiciaries into action.

Thus, the ICC must recognize the debilitating jurisdictional weaknesses imposed by the complementarity principle and the absurdity of any attempt to detain a head of state armed with nuclear weapons, restricting its functional authority to non-state actors in failed states. While Russia and Israel appeal to raison d’etat—unalterable policies necessary for national survival—in excusing their extraordinary wartime tactics, the Court must do so as well. The ICC, like any state in a time of crisis, must, in the words of Hannah Arendt, make concessions to “[the] stringencies of Realpolitik, in order to preserve power and thus assure the continuance of the existing legal order as a whole.” By narrowing its focus, refraining from issuing unenforceable warrants against heads of state, and working within the constraints of its limited enforcement powers, the Court can retain broader international support and align its actions with practical geopolitical realities. Abandoning its myopic obsession with massive interstate conflicts and redirecting its focus to regions where its rulings can stop non-state or low-level war criminals, the ICC will finally choose real justice over pyrrhic grandeur. Following such a course, the ICC could build partnerships with regional organizations, such as the African Union or ASEAN, to address crimes within specific geopolitical contexts. In doing so, the Court would once again be able to confidently rely on compliant states to execute its mandates, shielding its authority, avoiding the ire of UN Security Council members, and ensuring the noble ideals in its charter live to see another day.

Will Vogel is a junior at Brown University studying Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu.

Cat Gao is a sophomore at Brown University studying Philosophy and Literary Arts at Brown University. She is a blog editor for the Brown Undergraduate Law Review and can be reached at cat_gao@brown.edu.