The shattered hopes of the ICC

Five ideas to reform global justice

An article by Francesco Grillo for Il Messaggero

"The establishment of the Court is a gift of hope to future generations and a huge step forward on the path toward universal respect for human rights and the law." With these words, on July 17, 1998, the Secretary-General of the United Nations, Kofi Annan, concluded—together with Oscar Luigi Scalfaro, who was then President of the Italian Republic—one of those summits that marked history in the city that has always been at its heart. Kofi Annan was right to see the creation of the International Criminal Court (ICC) as one of the last great hopes produced by the century of multilateralism. However, that model likely reached its peak on that summer evening in Rome. From that moment on, the world of international organizations began a slow decline, and it is precisely that Court—now under harsh attack by the President of the United States—that has become a symbol of structures too fragile to ensure the substantial protection of rights that only make sense if they are universal.

The idea of a court to hold accountable those responsible for crimes beyond the borders of any single state was first introduced by entrepreneur Henry Dunant before he founded the Red Cross in 1864. It was the Geneva Conventions that proposed rights all states, even during wartime, would commit to respecting. Right after World War II, the Nuremberg and Tokyo tribunals judged the leaders of the Third Reich and Japanese generals, holding the first trials that gave tragic substance to a body of law striving to become international. With the Rome Statute, however, an attempt was made to go further than these tribunals, which were set up to address specific situations like the ethnic cleansing in the former Yugoslavia or the Rwandan genocide. The ICC was created as a permanent structure, with broad (but not global) jurisdiction.

In reality, the problems for the Court, headquartered in The Hague, began at that very meeting in Rome, chaired by Italian magistrate Giovanni Conso. Even though 120 UN member states voted in favor, the major military powers didn’t join. China and the United States have never been part of it. India and Israel, despite their strategic positions in global hotspots like the Middle East, also stayed out. Russia initially joined but later withdrew. Among the nuclear powers and permanent members of the UN Security Council, only the UK and France, along with the rest of the European Union, are members. This represents a significant weakness because, according to its own statute, the Court can only intervene if crimes occur in a country that has signed the agreement, if crimes are committed by a citizen of a member country, or if the member country with jurisdiction is unable or unwilling to prosecute.

As a result, the Court is often forced to chase cases where violations are committed by non-member countries on the soil of member states, as seen in Ukraine and Palestine, intervene in countries like Uganda that cannot act on their own, or operate based on rare UN Security Council resolutions, such as the 2011 warrant issued against Gaddafi, months before his death. This has led to a disappointing track record over the Court's 27 years of activity. Only 68 people have been investigated—barely more than two per year. This low number does not justify the 160 million euros annual cost of the Court and its 800 staff members. Arrest warrants have been issued in 12 situations, 9 of which are in Africa—a concentration that doesn’t reflect the actual distribution of global conflicts. Of those 68 individuals, only three are currently serving sentences, despite these crimes theoretically warranting multiple life sentences. Even cases like that of Osama Elmasry—the Libyan military officer convicted by the Court, arrested, and released by Italian authorities last week—highlight the slow process. He was convicted in 2024 for crimes dating back to 2015.

The Court, which was supposed to be at the forefront of international law development, isn’t functioning as intended. However, this isn’t a good enough reason to abandon its mission. Like all international organizations, starting with the United Nations, a reform of its operations is necessary if we don’t want to validate the criticisms from U.S. Presidents, with Trump not being the first—Biden also preceded him—who have mocked its legitimacy.

There are several ideas for building a reform. Some suggest scaling back ambitions to be more realistic, while others propose expanding its competencies. First, judges shouldn’t be asked to issue arrest warrants for crimes committed by third-party governments, especially their heads of state. Trying to arrest figures like Putin or Netanyahu only exposes the Court’s impotence. However, there’s still a need for an authority that, based on concrete facts, can publicly denounce large-scale violations of international law, even if they occur outside member states. Efforts should be made to involve non-member countries by allowing partial adherence to the Rome Statute, especially for violations of the Geneva Conventions, which have been at least partially signed by almost every nation. The Court could also address crimes against humanity of an environmental nature, which have international implications, like the sabotage of a gas pipeline in international waters. Finally, the Court’s staff should be adjusted according to the realistic objectives set by member states, to prevent the agency from falling victim to its worst enemy: the natural tendency of any public administration to preserve itself, even when its mission has changed. This applies not just to the Court but to all international organizations, often trapped by the desire of their staff to protect their jobs.

Keeping Kofi Annan's hope alive is a matter of survival in a world that will remain complex and interconnected, no matter the outcomes of future elections. International organizations must temper their rhetorical ambitions, but pragmatism and flexibility are essential to rethink all the tools that were supposed to protect us from horror.

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