In 2002, 125 nations came together to establish the International Criminal Court (ICC) as a judicial body dedicated to the prosecution of war crimes and crimes against humanity. The culmination of a project dating back to the aftermath of World War II, the ICC has conducted its work in the face of opposition from some of the world’s most powerful states, and faces an uncertain future. Keep reading to learn more.

Nuremberg, Tokyo, and “Victor’s Justice”

The earliest modern precedents for the International Criminal Court can be found in the tribunals held by the victorious Allied powers in the wake of World War II, which saw soldiers, politicians and bureaucrats from Nazi Germany and the Empire of Japan prosecuted, convicted, and sentenced for war crimes and crimes against humanity: the International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East^[1]James A. Mumm, International Military Tribunal for the Far East: A Legal Research Guide (2023). This book can be found in Spinelli’s Law Library Reference Shelf and is available for order as a physical edition. in Tokyo. However, the scope of these trials was somewhat limited, and interpreted to pertain solely to crimes carried out in the pursuit of war. Numerous offences that did not meet a strict definition of war crimes were excluded from the tribunal,^[2]Hilly Moodrick-Even Khen & Alona Hagay-Frey, Silence at the Nuremberg Trials: The International Military Tribunal at Nuremberg and Sexual Crimes against Women in the Holocaust, 35 Women’s Rts. L. Rep. 43 (2013). This article can be … Continue reading including the majority of atrocities commited during the Holocaust, which were discussed during the proceedings, but did not constitute the main focus of any trials, with the exception of the Einsatzgruppen trial^[3]Hilary Earl, Legacies of the Nuremberg SS-Einsatzgruppen Trial after 70 Years, 39 Loy. L.A. Int’l & Comp. L. Rev. 95 (2017). This article can be found in HeinOnline’s Law Journal Library.

Additionally, allegations of “victor’s justice”^[4]Carsten Stahn, Why Critiques of Victor’s Justice Never Went Away and How They Can Be Confronted Better, 59 Tex. Int’l L. J. 197 (2024). This article can be found in HeinOnline’s Law Journal Library. haunted the proceedings, which saw soldiers and politicians of the conquered states of Germany and Japan tried, prosecuted, and punished by jurists from the conquering Allies. At the same time, potential war crimes perpetrated by the victors went largely unpunished. Many legal scholars have pointed out that the Allied bombing campaigns against cities in Germany and Japan, which killed tens of thousands of civilians, met the criteria of war crimes^[5]Christopher Vail, The Legality of Nuclear Weapons for Use and Deterrence, 48 Geo. J. Int’l L. 839 (2017). This article can be found in HeinOnline’s Law Journal Library. under the 1949 Geneva Conventions.^[6]United Nations Treaty Series, Volume 75. These treaties can be found in HeinOnline’s United Nations Law Collection. However, no Allied airmen, nor their commanding officers, were ever prosecuted for the killing of civilians by bombardment from the air.

The experiences of many involved with the trials in Nuremberg and Tokyo led them to advocate for a more permanent, impartial venue for the prosecution of war crimes and crimes against humanity. Ben Ferencz, the American lawyer who served as chief prosector in the Einsatzgruppen trial, became a particularly passionate advocate for the establishment of an international criminal court in his published writings^[7]Benjamin B. Ferencz, International Criminal Courts: The Legacy of Nuremberg, 10 Pace Int’l L. Rev. 203 (1998). This article can be found in HeinOnline’s Law Journal Library. and lectures on the matter.

Rwanda and Yugoslavia

In the wake of the end of the Cold War, the 1990s ushered in a new era of multilateral conflict across the globe, which further highlighted the lack of an impartial venue dedicated to prosecuting war crimes and crimes against humanity. The widespread atrocities of the Yugoslav Wars throughout the decade and the horrors of the genocide in Rwanda in 1994 presented particular challenges, with each conflict involving multiple state actors and thousands of potential defendants.

The venue for justice in both cases was the United Nations Security Council, which established individual tribunals empowered to prosecute and punish war crimes and crimes against humanity perpetrated over the course of the Yugoslav Wars and the Rwandan Civil War and genocide. The International Criminal Tribunal for the Former Yugoslavia was established by Security Council Resolution 827^[8]48 Index to Proceedings of the Security Council 315 (1993). This document can be found in HeinOnline’s United Nations Law Collection. in 1993. The International Criminal Tribunal for Rwanda was established the following year by Security Council Resolution 955^[9]49 Index to Proceedings of the Security Council 327 (1994). This document can be found in HeinOnline’s United Nations Law Collection. in 1994.

However, like the tribunals following World War II, these were ad hoc proceedings. Each Resolution had to be drafted and negotiated separately, with provisions made for the prosecution, apprehension, and incarceration of individuals convicted. Each court was a temporary institution, established from the ground up for the sole purposes of prosecuting a narrow and specific (and much debated) set of individuals. The process was unwieldy, and its ad hoc character raised questions of jurisdiction, propriety, and fairness. As with the tribunals following World War II, allegations of victor’s justice haunted the proceedings, particularly in the case of Rwanda, which saw the tribunal decline to prosecute members of the Rwandan Patriotic Front,^[10]William A. Schabas, Victor’s Justice: Selecting Situations at the International Criminal Court, 43 J. Marshall L. Rev. 535 (2010). This article can be found in HeinOnline’s Law Journal Library. whose victory in the civil war put an end to the genocide, but was also accused of widespread human rights abuses and violations of the laws of war. Additionally, the inherent structural inequality of the Security Council, in which permanent members hold a veto over all decisions,^[11]Carrie Booth Walling, The United Nations Security Council and Human Rights, 26 Global Governance 291 (2020). This article can be found in HeinOnline’s Law Journal Library. presented a challenge to any attempts to prosecute citizens of those nations through ad hoc proceedings.

The Rome Statute

The call for a dedicated institution for international criminal proceedings was reneweded in 1989, when Trinidad and Tobago proposed establishing a court^[12]44 Official Records of the General Assembly, Summary Records of the Sixth Committee 1 (1989). This document can be found in HeinOnline’s United Nations Law Collection. to address crossborder drug trafficking. The UN tasked the International Law Commission (ILC) with exploring and drafting a proposal^[13]45 Resolutions and Decisions Adopted by the General Assembly 359 (1990-1991). This document can be found in HeinOnline’s United Nations Law Collection. for the establishment of a permanent, independent international criminal court. The task proved to be a challenging one, as the ILC itself articulated in a 1990 report on its work. One of the greatest challenges facing any international criminal court is the fact that “few States would be prepared to surrender even a small part of their sovereignty in respect of jurisdiction….It was difficult to see how major war criminals who were the rulers of an aggressor State could be brought before an international court^[14]Tuesday, 15 May 1990, at 10:05 a.m., 1990 U.N.Y.B. Int’l L. Comm’n 50 (1990). This document can be found in HeinOnline’s United Nations Law Collection. unless the State concerned had suffered a complete military defeat and surrendered unconditionally.”

Nevertheless, the work continued, with the experiences of the Tribunals on Rwanda and Yugoslavia providing extra impetus. After years of drafting and debate, the Rome Statute^[15]38544, 2187 UNTS 3 .This treaty can be found in HeinOnline’s United Nations Law Collection. established the framework for the international court by treaty in 1998. The process of drafting the statute was arduous and contentious, with numerous concessions being forced^[16]Stephen Eliot Smith, Definitely Maybe: The Outlook for U.S. Relations with the International Criminal Court during the Obama Administration, 22 Fla. J. Int’l L. 155 (2010). This article can be found in HeinOnline’s … Continue reading by the United States in particular. However, the United States was unable to achieve its primary goal in negotiations: securing the exemption of American military forces from any prosecution^[17]U.S. Policy regarding the International Criminal Court. This document can be found in HeinOnline’s U.S. Congressional Documents collection. for war crimes by the International Criminal Court. For the majority of the United Nations General Assembly, this was an unacceptable concession.

Ultimately, other member states made the decision to proceed over American objections, and the statute passed by a vote of 120 to 7 in 1998 in the United Nations General Assembly, with the United States being one of seven states voting against the measure (there were a further 21 abstentions). Despite American objections to fundamental aspects of the treaty, President Bill Clinton signed the Rome Statute in 2000. However, he declined to submit the treaty to the Senate for ratification. His successor, George W. Bush, likewise declined to sign the treaty, and went a step further, informing the United Nations of the United States’ intention to not ratify the treaty.^[18]U.S. Policy regarding the International Criminal Court. This document can be found in HeinOnline’s U.S. Congressional Documents collection.

How does the International Criminal Court work?

The International Criminal Court (ICC) works by the mutual consent of the 125 state parties that are subject to its authority. The ICC is an independent institution, housed in the Hague in the Netherlands. The jurisdiction of the court is “specifically limited to the crime of genocide,^[20]Bruce D. Landrum, The Globalization of Justice: The Rome Statute of the International Criminal Court, 2002 Army Law. 1 (2002). This article can becan be found in HeinOnline’s Law Journal Library. crimes against humanity, and war crimes, as defined by the Statute.”

The ICC is empowered to investigate, prosecute, and punish any individuals found guilty of perpetrating such offenses. Beyond the United States, three further countries withdrew their signatures from the Rome Statute in the years since its ratification in 2022: Israel, Russia, and Sudan. Additionally, there are a number of countries that never signed the treaty to begin with, including other major nuclear-armed states such as China and India.

However, crucially, referring an individual to the ICC does not require the consent of the state of which they are a citizen. This means that, in theory, citizens of non-signatory nations can be prosecuted for war crimes by the ICC; in fact, according to the letter of the law, it is the obligation of signatory states to investigate and arrest any individuals within their jurisdiction who have been charged with crimes by the ICC.

In practice, however, major military powers have remained largely exempt from prosecution by the ICC thus far. In 2002, George W. Bush signed the American Service-Members’ Protection Act^[21]2002 Supplemental Appropriations Act for Further Recovery From and Response To Terrorist Attacks on the United States., Public Law 107-206, 107 Congress. 116 Stat. 820 (2002). This document can be found in HeinOnline’s United States Statutes … Continue reading into law. Often referred to with the more colorful name “Hague Invasion Act,” the law explicitly authorizes the use of military force to free any American or allied servicemembers who are held in custody abroad. A similar law was recently introduced in the Russian legislature, the Duma, authorizing the use of armed force to free soldiers imprisoned for war crimes abroad. As with the American law, the proposed Russian legislation is widely seen as targeting the ICC.

The ICC Today

Despite opposition from major permanent members of the Security Council, in the decades since its establishment the ICC has issued 74 indictments and arrest warrants against 74 defendants. However, all 11 convictions thus far have been issued against citizens of African nations, with no convictions of any defendants from the West or other major powers. This has led some scholars to criticize the court as “a neo-colonial institution,”^[22]Tamanna Arora, The International Criminal Court and Africa: A Neo-Colonial Tool?, 2 City L. Rev. 54 (2020). This article can becan be found in HeinOnline’s Law Journal Library. whose rules are applied disproportionately to post-colonial states in Africa and Asia.

However, recent years have seen an expansion in the scope of ICC investigations and prosecutions beyond Africa. In 2023, the court issued a warrant for the arrest of Russian President Vladimir Putin for alleged war crimes committed over the course of the ongoing war between Russia and Ukraine. The following year, the court issued warrants of arrest for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for alleged crimes against humanity and war crimes in Gaza (while simultaneously issuing arrest warrants for a number of Hamas officials for alleged crimes committed during the same conflict). Investigations have also been initiated by Belgium, Brazil and other signatory states into Israeli soldiers visiting their jurisdictions over alleged crimes committed in Gaza.

The expansion of ICC investigations to a long-standing American ally provoked a backlash from the United States, with President Donald Trump signing executive orders issuing economic sanctions against 11 International Criminal Court officials, including the court’s chief prosecutor. To date, no arrests have resulted from charges filed against officials or soldiers for alleged actions in Ukraine or Gaza, although the warrants have promped both Vladimir Putin and Benjamin Netanyahu to cancel or alter travel plans to avoid arrest by signatories to the Rome Statute.

The United Nations in HeinOnline

Research for this post was conducted making extensive use of HeinOnline’s United Nations Law Collection. In an increasingly multipolar global order, the collection offers a fascinating look into the historical basis for international relations, and provides insights into contemporary international conflict. Titles of note include the Index to the Proceedings of the Security Council and the United Nations Yearbook of the International Law Commission, both of which extend back to the inception of their respective organizations.