The world has been carefully watching the recent evolving scenario about the International Criminal Court (ICC). Analyst Andrew Firmin has in this context drawn attention to a recent Wall Street Journal piece, where US Secretary of State Marco Rubio pledged to 'dismantle' the International Criminal Court (ICC). The Trump administration appears to put pressure on States to take measures to quit the Court through threats of sanctions, travel bans, visa restrictions and 'increased scrutiny' of States that are helping to keep the ICC functional. Firmin has drawn attention to the fact that such a move is bound to affect the Court's ability to stand with victims of the gravest of human rights crimes.
In 1994, the ILC presented its final draft Statute for the International Criminal Court to the General Assembly and recommended that a conference be convened to negotiate a treaty that would serve as the Court's Statute. To consider major substantive issues in the draft Statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After considering the Committee's report, the General Assembly created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the Preparatory Committee were held at the United Nations headquarters in New York City, during which NGOs provided input and attended meetings under the umbrella organisation of the Coalition for the International Criminal Court (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an inter-sessional meeting in Zutphen in the Netherlands to technically consolidate and restructure the draft articles into a draft.
Finally, the General Assembly 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 seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the U.S., and Yemen. Israel's opposition to the treaty stemmed from the inclusion in the list of war crimes "the action of transferring population into occupied territory", a provision added during the Rome Conference at the insistence of Arab countries with the specific intention of targeting Israeli citizens.
The UN General Assembly voted on December 9, 1999 and again on December 12, 2000 to endorse the ICC. Following 60 ratifications, the Rome Statute entered into force on July 1, 2002 and the International Criminal Court was formally established. The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on March 11, 2003. The Court issued its first arrest warrants on July 8 2005, and the first pre-trial hearings were held in 2006. The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers.
In 2010, the State parties of the Rome Statute held the first Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda. The Review Conference led to the adoption of two resolutions that amended the crimes under the jurisdiction of the Court. Resolution 5 amended Article 8 on war crimes, criminalising the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts. Resolution 6, pursuant to Article 5(2) of the Statute, provided the definition and a procedure for jurisdiction over the crime of aggression.
The International Criminal Court (ICC) is an intergovernmental organisation and international tribunal seated in The Hague, Netherlands. Established in 2002 under the multilateral Rome Statute, the ICC is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is intended to complement, not replace, national judicial systems; it can exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals. It is distinct from the International Court of Justice, an organ of the United Nations that hears disputes between States.
The ICC can generally exercise jurisdiction in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council.
As of October 2024, there are 125 States who are parties to the Rome Statute, which are represented in the Court's governing body, the Assembly of States Parties. Countries that are not party to the Rome Statute and do not recognise the court's jurisdiction include China, India, Russia, and the United States.
Donald Trump appears to be determined to defend his ally, Israeli Prime Minister Benjamin Netanyahu. It may be recalled that in November 2024, the ICC issued arrest warrants for crimes against humanity and war crimes against Netanyahu, former Defence Minister Yoav Gallant and also Hamas Commander Mohammed Deif, later confirmed to have been killed by Israel. Israel doesn't recognise the Court, but the warrants stand because Palestine does.
Netanyahu's warrant is back in the headlines because he's due to visit New York for the annual high-level opening of the UN General Assembly in September. Mayor Zohran Mamdani has called for his arrest, but the Trump administration has confirmed it will ignore the warrant. This may have fuelled the latest offensive, which goes further than the Trump Administration's 2025 decision to impose sanctions on nine ICC judges and officials.
It may be recalled that early in his Second Presidency, Trump issued an executive order that declared a 'national emergency', arguing the Court was a threat to the USA and Israel, and pledged sanctions against anyone who takes part in its investigations. The order was used to impose sanctions on Francesca Albanese, the UN Special Rapporteur on the Occupied Palestinian Territories.
The Trump administration's attack on the ICC is however part of a broader assault on the international system, and particularly ICC's human rights functions. Three military-run Sahel allies - Burkina Faso, Mali and Niger - have also begun their withdrawal from the ICC, a process that takes a year. They previously quit the Economic Community of West African States, including its Community Court of Justice, leaving victims of human rights atrocities amid jihadist insurgency with no international routes to justice. Others have rallied to the Court's defence. A European Union spokesperson said the Bloc 'stands firm' behind it. Hungary, which under right-wing nationalist Viktor Orbán had committed to pulling out has however reversed that decision under its new government.
The Court issued its first arrest warrants in 2005, and issued its first judgment in 2012. Indicted individuals have included Heads of State and other senior officials. In recent years, notable cases include arrest warrants issued against Russian President Vladimir Putin, in connection with the invasion of Ukraine.
Since its establishment, the ICC has faced significant criticism. Opponents, including major powers that have not joined the court, question its legitimacy, citing concerns over national sovereignty and alleging susceptibility to political influence. The court has also been accused of bias and of disproportionately targeting African leaders. Others have questioned the court's effectiveness, pointing to its reliance on state cooperation for arrests, its relatively small number of convictions, and the high cost of its proceedings.
The ICC held its first hearing in 2006, concerning war crime charges against Thomas Lubanga Dyilo, a Congolese warlord accused of recruiting child soldiers; his subsequent conviction in 2012 was the first in the court's history. The Office of the Prosecutor has opened twelve official investigations and is conducting an additional nine preliminary examinations.
It would be pertinent at this juncture to refer also to how the Court establishes its jurisdiction. The process to establish the court's jurisdiction may be "triggered" by any one of three possible sources: (1) a State party, (2) the Security Council or (3) a Prosecutor. It is then up to the Prosecutor to initiate an investigation under the requirements of Article 15 of the Rome Statute. The procedure is slightly different when referred by a State Party or the Security Council, in which cases the Prosecutor does not need authorization of the Pre-Trial Chamber to initiate the investigation. Where there is a reasonable basis to proceed, it is mandatory for the Prosecutor to initiate an investigation.
The Court's subject-matter jurisdiction means the crimes for which individuals can be prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed in Article 5 of the Statute and defined in later articles: genocide (defined in Article 6), crimes against humanity (defined in Article 7), war crimes and crimes of aggression (defined in Article 8 ) (since 2018).
Article 8 defines crimes of aggression. This Statute originally provided that the Court could not exercise its jurisdiction over the crime of aggression until such time as the States parties agreed on a definition of the crime and set out the conditions under which it could be prosecuted.?
The Statute, as amended, defines the crime of aggression as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations The Statute defines an "act of aggression" as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."
As of January 2025, 125 States are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. However, further 29 countries have signed but not ratified the Rome Statute. The law of treaties obliges these States to refrain from "acts which would defeat the object and purpose" of the treaty until they declare they do not intend to become a party to the treaty. Four signatory states have informed the UN Secretary General that they no longer intend to become States parties and, as such, have no legal obligations arising from their signature of the Statute. They are Israel as of 2002, the United States since May6, 2002, Sudan since August 26, 2008, and Russia on November 30, 2016. Forty-one other States have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court
Song Sang-hyun was the President of the ICC from 2009 to 2015. As of March 2024, the President has been Tomoko Akane from Japan, who took office on March 11, 2024, succeeding Piotr Hofmanski. Her first term will expire in 2027.
The ICC is necessary for the world to ensure peace and accountability. Disparaging the institution is just not acceptable.
Muhammad Zamir, a former Ambassador is an analyst specialiyed in foreign affairs, right to information and good governance.
