Q & A: International Criminal Court
Today, on the anniversary of the day when the International Criminal Court’s founding treaty was approved, we asked our Senior Director of Accountability Adam Keith some questions about the ICC, its founding, and how it impacts global accountability.
What is the International Criminal Court (ICC)?
The ICC is a court based in the Netherlands that countries anywhere in the world can choose to join. It is considered a “court of last resort” that steps in when national authorities are failing to provide accountability for certain crimes. The crimes that it can investigate and prosecute are war crimes, crimes against humanity, and genocide – but only when those crimes happen on the territory of the court’s member states, or are committed by the nationals of those member states. The ICC also has the ability to prosecute the crime of aggression (i.e., starting a war between states) under much more limited circumstances.
As of July 2024, 124 countries have joined the ICC, with Europe, Latin America, and Africa most heavily represented. Three other countries have either accepted the court’s jurisdiction without formally joining the court (Ukraine) or had some or all of their territory placed under the court’s jurisdiction by the UN Security Council (Sudan, Libya). Most U.S. allies have joined the court, including nearly all of NATO’s member states and more than half of the “major non-NATO allies.”
How did the ICC begin?
After the Second World War, states failed to build on the precedent of the trials of Nazi leaders at Nuremberg. But when the Cold War ended and tensions between superpowers diminished, the international community responded to atrocities in the former Yugoslavia and Rwanda by creating temporary war crimes tribunals focused on those situations. States also negotiated the creation of the ICC as a permanent tribunal. The ICC’s doors opened in 2002 after 60 states had joined its treaty, the Rome Statute. It opened its first investigation in 2004, focusing on the conflict in northern Uganda; its first trial began in 2006, focused on war crimes in the Democratic Republic of the Congo.
Who does the court aim to prosecute? Who and where has it actually prosecuted?
The ICC is only able to prosecute a handful of cases in any given investigation, and it tends to focus on senior officials or others responsible for crimes at a high level. As of July 2024, the ICC has charged a total of 54 different individuals with war crimes, crimes against humanity, or genocide, and an additional eight for related offenses such as witness intimidation. (See Human Rights First’s ICC case tracker here.) Eleven defendants have been convicted and 24 are still at large.
The first nine investigations that the ICC opened were in sub-Saharan or north African countries. Since 2015, though, new investigations have covered a broader geographical range, including countries in Europe (Georgia, Ukraine), Latin America (Venezuela), Asia (Bangladesh/Myanmar, Afghanistan, the Philippines), the Middle East (Palestine), and sub-Saharan Africa (Burundi). Most of the court’s current fugitives are accused of crimes in Ukraine, Darfur, Georgia, and Libya.
What is the relationship between the U.S. and the ICC?
The United States has not joined the ICC. As a result, the ICC generally does not have jurisdiction over crimes committed on U.S. territory, and it would only have jurisdiction over U.S. military personnel or other U.S. citizens for their acts in ICC member states.
The ICC prosecutor concluded in 2017 that U.S. torture of detainees in Afghanistan and other ICC member states may have amounted to war crimes under the court’s jurisdiction, but a later prosecutor decided under pressure to “deprioritize” those crimes in its Afghanistan investigation.
The United States has never provided funding to the ICC, though it has provided other forms of support to several of the court’s prosecutions on a case-by-case basis. U.S. law restricts the ways in which the United States can support the court, though Congress loosened several of these restrictions in 2023. U.S. support has included helping transfer a Congolese and a Ugandan fugitive to the ICC in 2013 and 2015 and sharing evidence of war crimes with the court’s Ukraine investigation beginning in 2023.
The ICC’s active role in investigating Russian war crimes in Ukraine since 2022 spurred a thaw in U.S. relations with the court and a bipartisan push to increase U.S. support for its work. Conversely, the U.S. reaction to the ICC prosecutor’s announcement in May 2024 that he is seeking arrest warrants against Israeli officials for war crimes in the court’s Palestine investigation has spurred congressional threats of sanctions. Civil society advocates and others have condemned those threats, but it remains unclear how U.S. support for the court will be affected.
How do national courts and the ICC work together?
In situations where national governments welcome the ICC’s intervention, national law enforcement institutions and the ICC’s prosecutor will sometimes share information and divide up the labor of pursuing accountability. Ukraine, for example, has made clear it welcomes the ICC’s focus on Russian abductions of children and attacks on civilian energy infrastructure; investigators from the ICC, Ukraine, and supportive third countries have shared evidence with each other.
When a government is openly or quietly opposed to the ICC’s intervention, cooperation is less likely. In such situations, the ICC is more likely to scrutinize national investigations and take its own action if those investigations fail to cover the relevant allegations and perpetrators of crimes, or if they appear to be a sham.
What is the difference between the ICC and other international courts?
Some other international courts have been created for a specific, temporary purpose and focused on crimes committed in a single conflict or crisis (e.g., the Rwandan genocide, Sierra Leone’s civil war). The ICC, on the other hand, is permanent and focuses on crimes that are sufficiently grave in any of its member states. While the international courts created by the Security Council had primacy over national institutions, the ICC generally must defer to national institutions when they investigate crimes themselves.
Who funds the court?
The ICC’s member states fund it, making annual contributions in proportion to the size of their economies. Congress has generally prohibited the United States from contributing funds to the court, though a 2023 law loosened this prohibition and a 2024 law appropriated $5 million for the ICC and its Trust Fund for Victims. It is not clear whether those funds have been provided.
What good can the International Criminal Court do?
In the best case, the existence of the ICC and the threat of its intervention will help encourage national justice systems to credibly investigate and provide accountability for serious crimes. But securing justice at the national level can be incredibly difficult when the perpetrators of crimes or their allies hold power. Survivors of atrocities and other advocates benefit from having the ICC as an independent venue where they can share evidence, seek action, and have their rights vindicated. Whether justice is provided locally or in The Hague, it can help break cycles of impunity that fuel continued conflict and instability.
