How International Criminal Court has become a paper tiger

“The modern state, as it emerged in the sixteenth century, has remained to this day the primary unit of international politics.” Celebrated scholar of International Relations Hans J Morgenthau had given this quote in his much-acclaimed book “Politics among Nations: The struggle for power and peace”.

Although Morgenthau’s book was first published in the year 1948, the primacy of states as the basic unit of international relations remains true even today. Despite there being a push for liberal institutionalism in the last century as well as in the current century, nation-states continue to be the key driver of international politics. In fact, the recent years have been the greatest testament to this phenomenon where a waning West is holding on to fragile institutions in order to assert its hegemony while countries such as China and Russia are challenging them each passing day.

In such a scenario, the International Criminal Court comes across as a particularly weak institution, especially with the way it is issuing indiscriminate arrest warrants against sitting heads of state. In the last year, it has charged Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu, and Myanmar’s military chief Min Aung Hlaing with war crimes and has moved forward to prosecute them. In fact, Putin has been facing an arrest warrant since March 2023, now with all the ICC member countries obliged to arrest him in case he travels to their country.

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Recently the court has also initiated a process to convict the military chief of Myanmar for committing humanitarian crimes against Rohingya Muslims. If the Myanmar junta chief’s arrest warrant is also approved by the jury, then he will also face a fate similar to Putin’s, obliging the member countries to arrest him.

First set up in 1998 with just 60 countries that signed onto the Rome Statute, the ICC today has 124 member countries and is headquartered in The Hague, Netherlands. Despite boasting of a large membership, the truth is that the powers that matter are not even functional members of the organisation, with some big players, such as China, the United States, India, and Russia, either keeping out from the founding treaty or not ratifying the treaty in their national legislatures after signing it.

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The court still maintains jurisdiction over four categories of international crimes, including genocide, breach of international customary laws and conventions regarding war, crimes against humanity, and crimes of aggression by a political or military leader against another state.

Since its inception, the ICC has issued arrest warrants against many heads of state, including Putin and Netanyahu, as well as Omar al-Bashir, former president of Sudan, and former Libyan leader Muammar Gaddafi as well. Against Bashir, the arrest warrant was issued way back in 2009, and since then, 15 years have passed, but there has been no headway in the case.

Meanwhile, Bashir has travelled to multiple countries, including ICC member states, as well, but he has not been arrested to date. In fact, in 2015, Bashir had travelled to South Africa, an ICC member country, but not only did he attend the African Union summit without any punitive action, but he also successfully left the country after wrapping up his commitments. He also travelled with much impunity to other countries such as Egypt, South Africa, and Syria as well. In fact, in Syria, he even endorsed the repressive measures taken by the Bashar al-Assad regime against its rebellious people.

At that time, ICC had come under attack for being a paper tiger from the human rights groups who questioned its lack of effectiveness and credibility, but the body failed to come up with any satisfactory response.

While the heads of state have often made news when the ICC prosecutes them, the truth is that there is a long list of individuals, especially from the African continent, who have been charged with serious crimes by the ICC, and yet hardly anyone’s case has reached a logical conclusion.

What weakens ICC’s position to ensure action and deter crimes at the international level is its limited membership. There are more than 190 countries that are officially recognised by the UN, but not all of them, especially the important ones, are party to the Rome Statute. Any rule of law requires hard power to back it, which the ICC has none to boast. Then there is also an issue of UN Security Council referrals, which many states consider partial given the fact that the UNSC itself needs urgent reforms. In view of its general lack of effectiveness, there have been many calls to dissolve the organisation in the past, but that doesn’t prevent the ICC from acting like it can actually make a difference.

The problem with ICC is that it is operating in a world where tangible power matters the most. Unlike national courts that have a robust internal police to implement the rule of law, the ICC has no enforcement mechanism of its own. It has to rely on states and international organisations to implement its decisions where states have been inconsistent in their behaviour and have not cooperated with the ICC on many occasions. Some of them have been quite vocal in pointing out how ICC impinges on their territorial integrity and sovereignty, not knowing where to draw a reasonable line.

In fact, Israel used this ploy just recently when Benjamin Netanyahu was charged by the ICC, and he referred to Israel’s right to defend itself against terrorism. Some major great powers, such as the United States and China, have also straight away denied cooperation with the legal body, citing similar reasons.

Clearly, the way things have turned out for ICC in the last two decades since its formation, it is high time that it takes stock of its actual position in the bigger scheme of things. The world is only moving towards more use of force than rule of law, with key states such as Russia and even the US demonstrating more willingness to back individual state action than any vague notion of institutionalism.

The instances of powerful countries undermining the international court may become more frequent now. This means that there is a need for the ICC to reinvent itself and align with the current trend. It can use its influence to signal lawful behaviour to nation-states, but the way it is issuing arrest warrants that lead to no real-world conviction and punitive action would only make it more irrelevant.

The author is a New Delhi-based commentator on geopolitics and foreign policy. She holds a PhD from the Department of International Relations, South Asian University. She tweets @TrulyMonica. The views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect Firstpost’s views.