As many are by now acutely aware, the International Criminal Court (ICC) relies on state cooperation to investigate and arrest individuals charged with international crimes. This is not new. What is new is the seriousness, complexity, and extent of the political resistance that the ICC is currently facing after issuing an arrest warrant for a Western ally. The court risks collapse.
The arrest warrant for Israeli Prime Minister Benjamin Netanyahu is the first against a sitting head of state in a so-called liberal democracy, writes Kjersti Lohne. Benjamin Netanyahu in 2024. Photo by Kent Nishimura/Getty Images
Double Standards and Attacks against the ICC
A total of 125 states are members of the ICC, but not the world’s most powerful ones. Despite the ICC having jurisdiction in Ukraine over war crimes committed on its territory, Russia does not accept the Court’s charges against its President Putin and other Russian officials. Indeed, Russia has reacted by issuing arrest warrants against ICC staff, including Chief Prosecutor Karim Khan and several of the Court’s judges. Serious cyberattacks — aimed at espionage — have become part of the Court’s everyday life.
It is important to remember that the ICC’s charges against Putin were made possible after a massive legal mobilization for international criminal law from Western states, including Norway and the USA. Less than a year ago, Biden ordered the Pentagon to cooperate and share evidence with the ICC on war crimes allegedly committed in Ukraine.
The arrest warrant against Israeli Prime Minister Netanyahu is the first against a sitting head of state in a so-called liberal democracy. Israel is also not a member of the ICC, but since Palestine is, the Court has jurisdiction over crimes committed on Palestinian territory. This fall, The Guardian revealed that the Israeli intelligence service Mossad has actively opposed the ICC’s investigation — for over nine years — by spying, surveilling, and threatening ICC staff, especially former Chief Prosecutor Fatou Bensouda and her husband.
The final blow, however, seems to be coming from the USA. The proposed Illegitimate Court Counteraction Act will impose sanctions — visa bans and freezing of assets — against foreign individuals and their family members who contribute to ICC investigations the USA does not like. In addition to prosecutors, judges, and other ICC staff, the sanctions could impact witnesses, individuals, and generally human rights work, such as war crimes documentation. The sanctions could also affect Norwegian citizens contributing to such work, in addition to employees of the many international organizations and human rights organizations collaborating with the ICC.
Human rights activists in the USA are also concerned about what the sanctions will mean for their own citizens and companies, as there is a risk of further sanctioning (including criminalization) of interactions with sanctioned individuals. At the ICC Assembly of States Parties meeting in The Hague last month, where I was an observer, the atmosphere was slightly panicked: will the sanctions also affect service providers like Microsoft, which make up the Court’s digital infrastructure? According to the ICC President, the sanctions imply the collapse of all cases where the ICC is involved, including in Ukraine, and threaten the very existence of the Court.
Member States Undermining the Court
At the same time, some of the ICC’s European member states are also undermining the work of the Court: When the ICC Chief Prosecutor sought an arrest warrant against the leadership of Israel and Hamas, the previous British government suggested that the ICC might not actually have jurisdiction in Palestine. This intervention is viewed by most commentators as a conspicuous attempt to delay the arrest warrants. The latest hit — so far — comes from France. Recently, the French Foreign Ministry stated that Netanyahu has immunity as a head of state from a non-member country, and that France would not enforce the ICC’s arrest warrant.
How does one now imagine arguing for the enforcement of Putin’s arrest warrant?
A Moment of Fate for the Liberal Legal Order
The idea that no one is above the law — not even heads of state — is the very foundation of international criminal justice. It is built on values that certain crimes are so heinous they victimize humanity itself — genocide, crimes against humanity, and war crimes. This is the legacy of Nuremberg that Western states championed — a rule-based liberal international order.
However, although international criminal justice promotes universal values, it has — since Nuremberg — also been criticized for double standards and a selective application of justice. The very fact that in its first 20 years, the ICC was almost exclusively involved in African conflicts while the violence of powerful Western states went unpunished answers poorly to declarations of universal justice. Instead, it has been criticized for serving Western states’ interests – of being a neo-colonial and imperialist Court.
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At this moment, we are at a geopolitical turning point. As the Court has responded to this previous criticism and is now going after Western and powerful state leaders, we see very clearly how politicized international criminal justice is. It is with an irony of fate that the ICC is now at risk of collapsing due to sabotage from Western states that in many ways are the main architects behind the liberal legal order the ICC represents.
- This text was first published in Norwegian by Aftenposten 18 December 2024
- Kjersti Lohne is Research Professor at PRIO and professor of criminology at the University of Oslo
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