In the midst of a world marked by conflict and accountability crises, the conspicuous absence of major powers like the United States, Russia and China from the International Criminal Court (ICC) casts a long shadow over the ideals of international justice.
Their refusal to sign up to the international court has sparked much heated debate since it was first set up in The Hague, Netherlands more than two decades ago.
Supporters of the International Criminal Court accuse the three global powers of hampering the court’s important investigations into war crimes, while opponents accuse the court of lacking political independence.
In short, the row is reflective of geopolitical tensions and national policies. The absence of these key players on the world stage is not merely a footnote in international law but a central chapter in the ongoing dialogue about accountability and sovereignty.
The three largest powers are not alone: other notable absences include Israel, Qatar, Iraq and Libya. Many of the ICC absentees have turbulent pasts and presents but they all have one thing in common: they prefer to avoid international legal scrutiny.
What Is the International Criminal Court?
What is the ICC? What’s its purpose?
Put simply, the ICC was established by an international treaty – the Rome Statute – in 1998 to prosecute anyone responsible for war crimes, genocide and crimes or violations against humanity. The main scenario in which this court acts is whenever a government, with or without a judicial system, is unwilling or unable to prosecute criminals in their own countries.
However, unlike other similar organisations such as the International Court of Justice, the ICC can prosecute individuals. That ability to claim jurisdiction over individuals unlikely to be prosecuted in national courts is probably one of the key reasons why some prominent nations like the United States, China and Russia continue to decline to sign this particular treaty agreement.
Accusations of Politicised Prosecutions
Often, common complaints and negative commentaries about international organisations arise due to their lack of concrete and successful actions. The ICC is no exception to this rule – particularly after its first conviction which only arrived more than ten years after the Rome Statute was first enforced.
That case was heard in 2012 when Thomas Lubanga, leader of a violent militia in the Congo in Africa, was convicted of a series of horrendous war crimes, relating mainly to his use of child soldiers.
However, Lubanga’s conviction and the fact that many of the ICC’s investigations and legal actions have centred on Africa have exposed the organisation to accusations of alleged anti-African bias by some nations.
However, it’s important to note the ICC’s involvement in African issues has been referred, in some cases, by the UN or even self-referred by a member state, which was the case with Uganda and its conflicts with the Lord’s Resistance Army (LRA).
How Does the ICC Operate?
It’s actually pretty straightforward. First, each country can nominate one judge candidate. If an independent action is needed, the panel of judges will approve the prosecution. The United Nations Security Council may also refer an investigation to a prosecutor.
The ICC claims to have jurisdiction over citizens of all countries, even if not a member state of the court. Non-member states can be compelled to cooperate with the ICC if the UN Security Council refers the case on. The organisation has no armed force, police force or enforcement body, so it relies on the cooperation of nations worldwide for support if it needs to make an arrest or transfer an arrested person for due process.
The International Criminal Court is financed only by its member states, though the US and other non-signatory or non-ratified nations have, on occasion, helped the court by sharing information and intelligence about fugitives and with logistical support in specific cases.
So, what’s the common opinion of the international community about the ICC? Does it enjoy broad support or is the idea of an international permanent court viewed with suspicion?
International cooperation on grave breaches of law may sound like the correct course for humanity, but it’s not always easy to achieve. Events such as Brexit or the election of President Trump in the United States have shown that an individual state’s national interests can take precedence over any sense of international cooperation – perhaps even shift things in the opposite direction.
Moreover, the International Criminal Court has been criticised for being inefficient and biased, prompting some former state members deciding to stop cooperating with the court.
Former ICC president Silvia Fernández is among those who recognise the difficulties faced by the ICC, commenting: ‘International criminal justice is a long-term project’. Still, as logical as her comments are, such views are still a hard pill to swallow for the victims of crimes against humanity.
Countries Not Part of the International Criminal Court
A closer look at some of the nations that are reluctant to have any involvement in the ICC throws up some interesting facts.
The United States
For some, this is the most surprising absence in the International Criminal Court while, for others, it’s a no-brainer.
After all, the ICC can exercise global jurisdiction and focus on high-level government officials who are usually difficult to prosecute by an international organisation. This enables the International Criminal Court to target individuals who are often not held accountable due to their high-ranking positions.
The US signed up to the treaty during Bill Clinton’s presidency but the move was later revoked by George W Bush, who was afraid of American soldiers being targeted by the international community.
In 2013, during a congressional briefing on human rights, the main speaker was Stephen Rapp, who pointed out the position of the United States administration towards intergovernmental organisations, specifically the International Criminal Court.
Rapp explained that his country’s decision to stand apart from the ICC is a matter of philosophical tradition. According to Rapp, Americans believe that they can better assist others than the international community. This implies that if the US were to become a member of an organisation like the International Criminal Court, its identity would be put at risk, as it would be required to abide by a set of external regulations and laws.
There is a concern that if the United States ever does decide to join the ICC, the global community could target them due to their aggressive foreign policy. This could lead to the court prosecuting American soldiers and other individuals involved in contentious actions overseas.
The George W Bush presidency was marked by a movement away from the International Criminal Court, seeing the international body as a threat to US interests. This was evident during the conflicts in Afghanistan under the Bush presidency, which some member states viewed as potentially criminal and deserving of investigation.
US concerns came to a head in 2002 when Congress passed the American Service Members’ Protection Act (ASPA), which asserted the ICC had no authority over prosecuting US service members.
The United States justifies their lack of cooperation with the International Criminal Court by claiming to work continually and diligently to help victims of international crime and prevent further acts against humanity.
Russia
Russia was one of the superpowers that supported the ICC almost from its inception in 1998, first engaging with the court in 2000. However, in 2016, President Putin decided to withdraw from the organisation. This was more of a symbolic move because Russia never actually approved the treaty. Russia had simply cooperated with the court while staying out of its jurisdiction.
In the immediate run-up to Russia’s withdrawal, the ICC’s lead prosecutor commented that the conflict between Russia and Ukraine had developed into an international armed conflict.
Meanwhile, 2016 was a rough year all round for the International Criminal Court. From September to November, Gambia, South Africa and Burundi also withdrew from the organisation, displeased by the fact that nine of the ongoing investigations at the time were in Africa. Alleged anti-African bias in how ICC cases are selected remains one of the major criticisms of the international community towards the ICC.
In the immediate aftermath of Russia’s disengagement, the country’s Minister of Foreign Affairs, Sergey Lavrov, declared that ‘the court did not live up to the hopes associated with it and did not become truly independent’, labelling it ‘one-sided and inefficient’.
At the time, Russia stood accused of war crimes during its military intervention in Syria and some international observers pointed to the allegations as the trigger for Russia’s ultimate decision to no longer be part of the court.
Recently, the relationship between Russia and the International Criminal Court has further deteriorated. In March 2023, the International Criminal Court issued an arrest warrant for Russian president, Vladimir Putin, on suspicion of unlawfully deporting children and transferring people from Ukraine to Russia.
Russia responded by announcing that they did not recognise the International Criminal Court’s decision or its jurisdiction, declaring: ‘any decisions of this kind are null and void for the Russian Federation from the point of view of law’.
In response to the arrest warrant issued for Putin, Russia issued arrest warrants for multiple International Criminal Court officials, including the ICC’s president and vice president.
Israel
Although Israel supported the court at its inception, ultimately it never ratified the treaty. After decades of conflict with the Palestinians and dozens of accusations of war crimes, it’s apparent why Israel isn’t a part of the ICC.
Palestinian representatives, who have been members of the International Criminal Court since 2015, have been submitting evidence of alleged war crimes by the Israeli army to the court for some years now. However, there hasn’t been much action from the organisation besides a recognition of the issues and the need to address them. Israel has also accused the Palestinians of war crimes.
Violence erupted once again in October 2023, when the Hamas paramilitary group killed more than 1,000 Israelis and foreign nationals. These October 7 murders sparked an ongoing military invasion of Gaza by the Israel Defense Forces (IDF), resulting in more than 32,000 deaths to date with women and children have borne the brunt of the killings. However, even the death tolls in Gaza are disputed.
The never-ending conflict between Israel and Palestine has been a diplomatic nightmare in which many nations – both ICC members and non-members – are currently involved, supporting one side or the other.
Libya
Oil-rich, but socially and politically unstable with an ongoing civil war, Libya is another absentee from the International Criminal Court. That doesn’t mean it is beyond the reach of the ICC – as outlined above, the ICC can, according to its charter, engage with cases referred to it by the UN Security Council acting on behalf of the UN General Assembly. Under those circumstances Libya, as a non-member, is compelled to cooperate with the ICC.
In 2017, the International Criminal Court issued an arrest warrant for the Libyan militant, Mahmoud Mustafa Busayf al-Werfalli, of the Libyan National Army.
He was one of the key combatants in 2011, at the outset of Libya’s civil war, fighting what was referred to in the West as the ‘tyranny’ of then Libyan dictator, Colonel Muammar Gaddafi. Accused of committing war crimes, including violent executions, Werfalli became the fourth Libyan prosecuted by the ICC since it opened the case less than a decade ago.
Among the other arrest warrants issued by the court was one for Gaddafi himself – he was subsequently killed by the rebels – and Gaddafi’s son, Saif al-Islam Gaddafi. In November 2016, it was reported that Saif al-Islam was free to travel around Zintan in Northwestern Libya while still officially a prisoner. In 2017, he allegedly survived an assassination attempt by local militias.
The International Criminal Court finally charged him with crimes against humanity and war crimes but allowed Libya’s courts to try him, which later sentenced him to death.
Unsurprisingly, both Russia and the US were involved in the Libyan conflict, each with its own particular reasons. Russia made allies on both sides, while the US maintained that its sole ambition was to continue the fight against the Islamic State group of militants and assist the UN.
China
China’s omission from the ICC is particularly interesting as its concern isn’t about the potential prosecution by the court of its nationals or military.
Instead, China’s difficulties centre on its allies and international relationships. Being part of the ICC means cooperating with the court in its pursuit of fugitives, helping build cases against alleged war criminals, gathering evidence or providing logistical assistance where needed.
The problem for China is that its international relations can sometimes become controversial and strained, such as in the case of Syrian President Bashar al-Assad, who has been accused of war crimes, including the use of chemical weapons.
Russian support for al-Assad’s government is no secret, but a lesser-known sponsor for the Syrian president is China.
China’s relations with Syria go back to the 1990s when it started providing weapons for Bashar’s father and former president, Hafez al-Assad. Its current interest in Syria’s situation is centred around potential economic gain.
The International Criminal Court is often at the centre of analysis and speculation with international observers regularly reading ‘between the lines’ of statements by countries like the United States and China.
So, when China’s President Xi Jinping stated his willingness to help the ICC with issues that won’t directly affect his nation’s own interests, most ICC-watchers understood the underlying message as far as Syria was concerned: the Chinese won’t help any international organisation target al-Assad.
As of 2024, the Syrian civil war no longer dominates international headlines, supplanted in recent years and months by Ukraine and Gaza. In the meantime, the civil war itself has largely subsided, reaching a stalemate meaning China is no longer under any pressure to come clean about its economic interests in Syria and or become a member of the ICC.
Chief among China’s concerns about the ICC is its vulnerability to political influence and interference, since any of its individual prosecutors can make the decision to begin an investigation. China objects to the fact the court has the power to judge whether a state is able or willing to prosecute its own nationals. Finally, China believes that the court’s jurisdiction over what it can prosecute weakens the United Nations Security Council.
Qatar
There’s a word commonly used in the international community to describe Qatar’s Emir, Tamim Al Thani, and his country’s foreign policy: pragmatic. The Arab country prizes good relations with all sides of some of the major international conflicts of the last decade.
Qatar is an incredibly rich country with one of the largest natural gas and oil reserves in the world. It has one of the highest income rates per capita in the world and is classified by the UN as a country of very high human development.
Still, Qatar managed to make enemies out of the United Arab Emirates, Bahrain, Egypt and Saudi Arabia because of its alleged relations with radical groups and terrorist organisations like Hamas and ISIS.
What’s remarkable here is that, despite its Arab neighbours’ accusations that it funded and harboured terrorists, Qatar has somehow managed to maintain good relations with the United States.
How does all of this relate to the ICC?
Many of Qatar’s problems and concerns could start to diminish if they decided to enter the ICC and ratify the Rome Statute. The main concern revolving around Qatar’s potential move to join the International Criminal Court relates to its connections with the Palestinian terror group, Hamas.
However, the situation is complex, with both sides benefiting from Qatar’s connections. For example, since the recent outbreak of conflict in Gaza, Qatar has played a crucial role, along with Egypt and the US, in attempting to broker a ceasefire agreement between Israel and Hamas.
Thanks to their knowledge of and access to Hamas, Qatari officials were able to negotiate the release of several hostages, including some US citizens, and continue to work towards the further release of Israeli hostages.
Time will tell whether Qatar will choose to join the ICC.
Significance of the ICC
It’s been a bumpy ride for the organisation based in The Hague. There have been some setbacks along the way, including the withdrawal of some influential nations and the compromise of the court’s legitimacy in the eyes of some.
Still, with over 120 nations supporting the International Criminal Court and its work, the creation of the court has largely been a win for the international community and one can only hope that the remaining, reluctant countries understand that global cooperation is the right course to take.
It’s clear that the world’s dictators will do their best to stay out of the ICC while trying to delay its growth. It’s also true that nationalism remains the number one enemy of globalisation and its endorsement of supra-national organisations like the ICC.
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