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HISTORICAL CONTEXT: THE EXISTENCE OF THE INTERNATIONAL CRIMINAL COURT

And now onto our main discussion, regarding the dwindling influence of the international criminal court (also known as the ICC); and we ought to begin with some historical context. In essence, the establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force.

Following the Second World War, the allied powers established two ad hoc tribunals to prosecute Axis leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind prosecuted after World War II. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.

However, eventually, the General Assembly of what was then the United NAtions convened a conference in Rome in June 1998, with the aim of finalising the treaty to serve as the Court’s statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to seven, with 21 countries abstaining. The UN General Assembly also voted on the 9th of December in the year 1999 and again on the 12th of December in the year 2000 to endorse the ICC. And so, following 60 ratifications, the Rome Statute entered into force on the 1st of July in the year 2002, and the International Criminal Court was essentially formally established.

THE NOTABLE ISSUES WITH HOW THE INTERNATIONAL CRIMINAL COURT OPERATES

Let’s proceed to discuss the operational issues with the ICC. As we’ve already established, the ICC began operations on the 1st of July 2002, upon the entry into force of the Rome Statute. This statute is central to the functionality of the ICC and its operations, because it is a multilateral treaty that serves as the court’s charter and governing document. States which become party to the Rome Statute become members of the ICC, serving on the Assembly of States Parties, which administers the court. As of April 2025, 137 countries have signed the Rome Statute – indicating their intention to join – while 125 of them had formally ratified it, becoming full member states of the ICC. Here’s more.

Now what is also crucial to vote in the operation of the ICC is what it was intended to do. And, in essence, the ICC was intended to serve as the “court of last resort” – which immediately establishes an order, where domestic judicial systems should always supercede the jurisdiction of the ICC, until it is deemed necessary to resort to the ICC. This means that the ICC is supposed to complement existing national judicial systems and may exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals.

This duty to complement and not undermine domestic law, was however, not well considered in the case of the Lord’s Resistance Army (also known as the LRA). In this case, he International Criminal Court (ICC) issued arrest warrants on 8 July and 27 September 2005 against Joseph Kony, his deputy Vincent Otti, and the three LRA commanders Okot Odhiambo and Raska Lukwiya, deputy army commanders, and Dominic Ongwen, who was a brigade commander of the Sania Brigade of the LRA. The five LRA leaders were charged with crimes against humanity and war crimes, including murder, rape, and sexual slavery.

Now, these were the first warrants issued by the ICC since it was established in 2002. Details of the warrants were sent to the three countries where the LRA was active, being: Uganda, Sudan (in what is now South Sudan), and the DRC. But, as the arrest warrants were issued, the LRA leadership had long stated that they would never surrender unless they were granted immunity from prosecution; which meant that in addition to issued warrants, the ICC proceeded to also indict the accused in their absence – which is another curious operational procedure of the iCC.

Furthermore, the ICC’s order to arrest the LRA leadership raised DOMESTIC concerns that the insurgency would not have a negotiated end. This is to say that while the indictments received praise within the international community, the Acholi people showed concern because many felt that amnesty for the LRA soldiers and a negotiated settlement was the best hope for the end of the war. And indeed, in the end, the ICC’s intent to prosecute the leaders of the LRA reduced the army’s willingness to cooperate in peace negotiations.

Why is this important? Because the ICC disregarded the desires of the people in Uganda and Sudan, and their respective domestic justice systems, in pursuit of what the ICC deemed justice against the LRA. And while there is a more nuanced discussion to be had about whether we should negotiate with terrorist or insurgent entities, this case (which was the first time the ICC issued arrest warrants) showed that the ICC went against a crucial operational tenet in its mandate. Here’s more on the operational issues with the ICC.

Still looking at the operational issues with the ICC,  it is worth noting that the ICC  lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council. This has an annoying little loophole where nations that are not signatories to the Rome Statute, but are in the UNSC – such as the US – can influence the workings of the ICC, while never being subject to the powers of the ICC themselves.

In fact, the US’s policy concerning the ICC has varied widely. The Clinton administration signed the Rome Statute in 2000, but did not submit it for Senate ratification. During the George W. Bush administration, which was the US administration at the time of the ICC’s founding, this administration stated that it would not join the ICC. Then the Obama administration subsequently re-established a working relationship with the Court as an observer; while the second Trump administration has sanctioned the ICC.

But, primarily the US position on the ICC is that it is incompatible with the US Constitution – which is true, and offers a necessary refutation of the ICC’s manner of operation. Teh position, especially from conservatives in the US is that United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of US citizens for crimes committed on US soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses. This critique literally applies to all nations.

HUNGARY’S EXIT FROM THE ICC, AND HOW THIS UNDERMINES BOTH THE ICC AND THE EU

And so, let’s discuss a nation that has recently placed sovereignty over global politics. Recently Hungarian Prime Minister Viktor Orbán launched another attack on the pretentiously multilateral world order, and its institutions including the UN, the EU and the ICC. He invited Israeli Prime Minister Benjamin Netanyahu, who is under an arrest warrant of the International Criminal Court (ICC) for allegations of war crimes and crimes against humanity, for a state visit to Budapest. On this occasion, Orbán announced Hungary’s withdrawal from the ICC, which he defined as “a politically biased” institution. With this move, Hungary undermines the EU’s long-standing and consolidated support for the ICC.

Now, the EU is not a contracting party since the Statute is only open to sovereign States (Art. 125). From the outset, the EU actively promoted the further development of the ICC as a pillar of the international legal order. This resulted in the conclusion of a cooperation and assistance agreement between the EU and the ICC in 2006 and the adoption of what was called a CFSP Decision committing the EU and its Member States to support the ICC’s effective and efficient functioning. On the occasion of the 25th anniversary of the adoption of the Rome Statute, the EU Council reiterated “its unwavering support to the ICC for its central role in bringing justice to victims in all situations under its jurisdiction.”

Furthermore, the EU’s commitment to achieve universality and full implementation of the Rome Statute is a central tenet of its external action. In practical terms, this resulted in countless diplomatic demarches and statements in support of the ICC as well as the systematic inclusion of ICC clauses in agreements with third countries. For instance, Article 6 of the EU-Moldova Association Agreement provides that “the Parties agree to support the ICC by implementing the Rome Statute and its related instruments.”

BUT… Hungary’s withdrawal from the ICC undermines the credibility of the EU’s external action and leads to the exposure of double standards, in particular it shows how politicised the EU’s reactions are. For instance, after Russian President Putin visited Mongolia in September 2024, there was an immediate reaction condemning Mongolia’s disrespect for its obligations under the Rome Statute. When South Africa intended to invite Putin to a BRICS summit in 2023, the EU exerted diplomatic pressure. But, after Netanyahu’s recent visit to Budapest it has been remarkably silent in Brussels. There has been no official reaction on behalf of the EU institutions. Some Member State representatives communicated that they ‘deeply regret’ Hungary’s withdrawal from the ICC and expressed their concern, but that was the most significant reaction. Why?

I think it is because the EU realises that there is a surge of euroscepticism and nations like Hungary – who are constantly advocating for the protection of sovereignty are at the fore of this euroscepticism. And so, while it may be easier to press on nations like Mongolia, the stakes are much higher with nations like Hungary today.

ALSO, “INTERNATIONAL LAW” IS NOT REALLY LAW

In light of – especially the enforcement capacity of the ICC – I think this exposes a crucial and often not discussed fact about international law – which is that it is not actually a body of law, in that it doesn’t have a strict capacity to command compliance or enforcement. For instance, in the hierarchy of laws established in nations (which is typically highlighted in litigation), international law is usually at the bottom of that hierarchy because of the primary understanding that the law of the land (which would include the constitution, and acts of parliament) should take priority – which is good, because the law of the land tends to involve the will of the people, at least certainly more than international law.

Furthermore, international law is also inherently based on the buy-in of nations. This is to say that nations choose whether to enter into international treaties and whether to be bound by them. And so the whole system of international law is based on willingness – which is good, because the opposite would undermine the sovereignty of nations, but it does also mean that it is not necessarily a body of law that we can say commands authority or obedience.

Then on top of this, international law does not have any enforcement capacity, in that it does not have a body that ensures compliance. Again, this is because nations can choose whether they wish to comply with treaties or accords, and also because international law relies on nations to police themselves! At best, what other nations can do is to try to influence the decisions of other nations to comply through measures such as sanctions or trade benefits – but, even these measures do not necessarily guarantee compliance, and also ironically serve to highlight the incapacity of international law to command compliance.

Take the Treaty on the Non-Proliferation of Nuclear Weapons, for example. North Korea became a party to this treaty in 1985 as a non-nuclear weapon state. However, in 2003, North Korea announced its withdrawal from the NPT, citing concerns about its security and the lack of progress in denuclearisation negotiations. North Korea’s withdrawal was disputed, with some arguing that it remains bound by its obligations under the treaty; it even led to international condemnation and the imposition of sanctions by the UN Security Council. BUT, North Korea has since conducted six nuclear tests between 2006 and 2017, demonstrating its capability to develop and deploy nuclear weapons. In fact, it is estimated to have a stockpile of approximately 50 nuclear weapons and the fissile material for an additional 70-90 weapons. Another example is the US’s decision to exit the Paris Agreement through president Trump’s executive order on the 20th of January this year. There was some rebuke from other signatories, but the US has still withdrawn.

I say all this to say I do not think we should call international treaties or accords “law” – at best, they are agreements that nations voluntarily enter into, and can choose to opt out of at any time. Law commands authority and demands compliance, with an enforcement capacity. International law has none of these things – AGAIN which is good, because the laws of sovereign nations (made by governments who are accountable to their voters) SHOULD always trump international agreements made by leaders of nations or organisations that are not accountable to citizens. And so, this is all to say that we should call a spade a spade; and in this case international law is not really law.

Written By Lindokuhle Mabaso