The concept of an international criminal court emerged in the aftermath of World War II, but the establishment of the International Criminal Court (ICC) did not occur until 1998, when 120 states adopted the Rome Statute. Despite its noble objectives, the ICC continues to grapple with questions of legitimacy and efficacy in its role as an international tribunal.
JURISDICTION OF THE ICC
The ICC has two primary avenues for establishing jurisdiction over individuals:
- The state is a party to the Rome Statute (note that some states have withdrawn from the Rome Statute.
- The ICC may assert jurisdiction over states from non-member states if the state is found to not sufficiently investigate and prosecute war crimes within its own legal system.
THE LEGITIMACY OF THE ICC
Although the ICC can claim jurisdiction over non-member states, this approach risks damaging its legitimacy if such claims are not well-founded. Missteps in asserting jurisdiction especially over politically sensitive cases undermine trust in the court as an impartial arbiter of justice. Especially if their findings are not supported by the facts. A court's legitimacy stems from three key factors:
- Acceptance by the people and states.
- Competence in the development and application of law.
- The power to enforce its rulings.
ACCEPTANCE BY THE PEOPLE & STATES
Nations or people will rarely accept jurisdiction over themselves when they have better alternatives, unless they truly believe in the court’s ability to be fair (assuming they are looking for a fair court). For instance, during Maimonides’ era, Jewish courts in Egypt required litigants to opt into their jurisdiction. If individuals chose not to accept Jewish courts, they could turn to Egyptian courts instead. Maimonides’ challenge as a jurist was to ensure that Jewish courts were perceived as just and effective, so the Jewish people would submit to their jurisdiction. The ICC has had problems getting nations to accept their rulings the same way as many of the Jewish people did in the times of Maimonides. The ICC enjoys jurisdiction over member states, as they have voluntarily accepted jurisdiction to the Rome Statute. However, the ICC has not adjudicated any significant issues on the countries. A member state has not really accepted the court’s jurisdiction. Further many of the world's most powerful states have not joined the ICC. The United States, Russia, China, Saudi Arabia, and Israel, among others, have refused to join the ICC as member states.
COMPETENCE IN THE DEVELOPMENT AND APPLICATION OF LAW
The ICC’s laws and rulings must be perceived as reasonable and legally sound to gain legitimacy. Its handling of the October 7, 2023, conflict with Israel, has been criticized for its application of its law. Almost all of its criminal findings against Israel are not supported by the facts on the ground, and appear to be anti-Israel propaganda.
For example the ICC has alleged that Israel's actions against Hamas constitute genocide due to civilian casualties. This claim has been widely debunked for the following reasons:
- Israel’s actions were a direct response to Hamas’s unprovoked attack on October 7, which clearly constitutes an act of war.
- Civilian casualties alone are not evidence of genocide, as no war is without such tragedies.
- Accusations of disproportionate force were also debunked, as Israel demonstrated one of the lowest combatant-to-civilian death ratios in urban warfare history despite Hamas’ use of human shields.
- Allegations citing the biblical Amalek narrative to support genocide lack factual and contextual basis. Israel’s military response targeted Hamas, not the Palestinian population as a whole. The casualties would be much higher if they were trying to kill the entire Palestinian population based on their military capabilities.
Inconsistencies in the ICC's reasoning and failure to account for internationally recognized principles like self-defense undermine its credibility.
THE POWER TO ENFORCE ITS RULINGS
Historically the ICC has only prosecuted non-democratic countries ruled by dictators. Prosecuting Russian invasion of Ukraine, and brutal dictators did not draw much criticism from most people, but many like the United States were skeptical of the ICC. They were right, as that changed when the ICC decided to issue arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Secretary of Defense Yoav Gallant during Israel’s response to Hamas’s brutal attack on October 7, 2023.
These warrants seem to be racially motivated against the Jewish state, and the allegations for the warrant have largely been debunked. As a result many western countries that the ICC relies on for legitimacy have renounced the court.
Furthermore, the ICC lacks the practical ability to enforce its rulings against powerful states or their allies. The United States, for instance, has taken proactive measures to shield its citizens and allies from ICC prosecution. U.S. law authorizes the President to use military force against the ICC in The Hague, underscoring the court’s limitations in imposing its rulings on unwilling states. The court’s members have also faced economic sanctions from the United States.
CONCLUSION
While there is a vision for international justice, the ICC remains far from achieving true legitimacy. Its lack of acceptance among powerful nations, politically motivated rulings, and inability to enforce decisions undermine its legitimacy.
The court’s decision to prosecute Israeli officials following the October 7 Hamas attack risks further alienating key allies and eroding its credibility. There is great irony on how the ICC was aspired to stop genocide like the one perpetuated against the Jewish people in World War 2, accused Jewish officials of Israel of perpetuating genocide, while a genocide was being committed on them by Hamas. Without addressing these foundational issues, the ICC will struggle to gain legitimacy as an international body of law.
