ICC Independence and Neutrality: Why It is Broken and How to Fix It
A Broken System?
In theory, the International Criminal Court (ICC) is an independent body that stands apart from international politics. Its effectiveness and fairness are crucial for international criminal justice, which pursues the lofty goals of achieving justice for all, ending impunity, deterring conflict, and preventing future war crimes. However, in an era of global superpower rivalry, this institution is being tested in unprecedented ways. The rapid fragmentation of the world, caused not least by the armed conflicts between Russia and Ukraine and in the Gaza Strip, is turning the global system back into two competing blocs with a “Global North” led by the United States and a “Global South” led by Russia and China[1]. While all three are permanent members of the UN Security Council (UNSC), they are not parties to the Rome Statute, the ICC’s founding treaty, indicating that all great powers of this new balance of power era seem to be looking at world politics through the prism of “global power” rather than international law. Furthermore, in recent years criticisms have emerged that the ICC might be more of a vehicle for some (western) states to assert their dominance over countries in the Global South, rather than an independent and purely law-bound institution for global justice. To understand the position of the ICC in the emerging multipolarity, the following analysis will focus primarily on the Office of the Prosecutor as a structural element of the ICC, explaining what makes the office holder the most influential figure in the court, what safeguards there are in place to ensure the prosecutor’s independence and neutrality, and which countries that are attempting to leverage the prosecutor’s extensive powers to further their geopolitical goals. These considerations are especially pertinent in the context of the Ukrainian and Palestinian crises, on which the court was compelled to act—albeit in a very different fashion.
Legal Status of the ICC Prosecutor
The ICC was established by the Rome Statute in 1997. Unlike previous international tribunals, the ICC is the first permanent body authorized by its founders to administer international criminal justice against individuals. A key element of the court’s structure is the Office of the Prosecutor, which investigates and prosecutes core international crimes, including genocide, crimes against humanity, crimes of aggression, and war crimes. The Rome Statute enshrines the legal status of the prosecutor, which can be divided into functional and procedural aspects.
Functionally, the ICC Prosecutor manages the Office autonomously. Given the importance of this position, the prosecutor undergoes a rigorous selection process by the Assembly of States Parties to the Rome Statute before being appointed. The position is currently held by Karim Khan, a lawyer from the UK. Two deputy prosecutors from Fiji and Senegal[2] assist him in leading the Office’s 380 staff members. As they deal with serious criminal offenses, international law guarantees them and their subordinates’ inviolability and diplomatic immunity from infringement by hostile states.
Procedurally, the ICC Prosecutor possesses extensive authority in both pre-trial and trial proceedings. Unlike judges, who passively wait for criminal cases to be presented to them, the prosecutor is the “master” of the criminal case. It is at the prosecutor’s discretion to decide whether to initiate a criminal case, whether to refer the case to court or to dismiss it at the pre-trial stage. The prosecutor is required to conduct a thorough, complete, and objective investigation of all circumstances surrounding the case to establish the truth, examining both incriminating and exculpatory evidence.
Based on the results of the investigation, the prosecutor has the power to indict former and even current heads of state and to arrest them with the authorization of the Pre-Trial Chamber. This power makes the prosecutor a significant actor in the geopolitical arena, as he can strip these individuals of their ability to govern, participate in international organizations, or negotiate peace treaties. In judicial proceedings, the prosecutor supports the prosecution and seeks just punishment for criminals. These functions illustrate the prosecutor’s unique powers, which are not found in other officials of international institutions.
The Rome Statute defines the independence of the ICC Prosecutor as freedom from any obligation to follow instructions from external sources. The prosecutor must not engage in any activities that could interfere with the performance of his prosecutorial functions or compromise his independence. The Code of Ethics for the prosecutor further details the list of inadmissible actions in the context of his independence[3]. Any interference in his activities is not only impermissible but also unlawful under its own status. The prosecutor’s independence means that he must be fully autonomous in his decision-making and is not required to provide clarification of his procedural decisions to anyone. There is, however, judicial oversight of the prosecutor’s activities, which serves a dual role: it acts as a check on the prosecutor’s substantial authority, while also preventing interference from other entities, apart from the court itself. For instance, upon a reasonable request from an involved party, the Pre-Trial Chamber may ask the prosecutor to reconsider his decision not to initiate an investigation. Thus, the neutrality of the ICC Prosecutor implies that he should not serve the political interests of any country and must act solely based on the Rome Statute. In return, the prosecutor is provided with the necessary premises and protection to investigate and prosecute international crimes independently, both functionally and procedurally. However, there are vulnerabilities that can be exploited by great powers to influence his activities, thereby undermining the international trust and legitimacy of the institution.
Russia and the Ukrainian Crisis
While the causes and motivations for the warfare between Russia and Ukraine are subject to strong disputes, the fact of civilian casualties in the armed conflict is not. Since February 2022, over 10,500 civilians have been killed. In March 2022, the ICC Prosecutor initiated a criminal investigation into possible war crimes. Based on the investigation’s findings, Russian President Vladimir Putin was charged with the crime in absentia and placed on an international wanted list with a warrant for his arrest. According to the investigation, Mr. Putin committed war crimes by unlawfully deporting and transferring children from the occupied territory of Ukraine to Russia[4]. The prosecutor has called on all countries to cooperate in holding the perpetrator accountable[5]. This decision is considered historic because it targets the sitting head of state of one of the five permanent members of the UN Security Council and the president of a nuclear power.
In response to these actions, the Russian Foreign Ministry asserted that such measures are illegal for several reasons[6]. First, Russia has never recognized the jurisdiction of the ICC. Second, it contends that an incumbent head of state possesses “absolute immunity from foreign criminal jurisdiction,” which is essential for fulfilling the duties of governing the country[7]. From a legal perspective, these claims are arguably justified, as they raise concerns about potentially violating the constitutional order of Russia, which prescribes a specific procedure for addressing allegations against the head of state through impeachment proceedings. In turn, Mr. Putin publicly denied the accusations against Russia, stating that Ukrainian children were not kidnapped but rather rescued through evacuation from the war zone. This action, he argued, aimed to prevent them from being left vulnerable in orphanages amidst artillery strikes[8].
Subsequently, the Investigative Committee of the Russian Federation initiated a criminal case and charged ICC prosecutor Karim Khan in absentia, placing him on a wanted list with authorization for his arrest[9]. According to the Russian investigation, Khan violated several articles of the Russian Criminal Code, including ” criminal prosecution of a person known to be innocent, as well as preparation for an attack on a representative of a foreign state enjoying international protection in order to complicate international relations.”[10] (Former Russian President Dmitry Medvedev even threatened to target ICC headquarters with Russian missiles[11]). Russian officials criticized especially the ICC for its “excessive reliance on political considerations” and highlighted the ” desire of certain States to exert undue political pressure on the ICC,”[12] specifically referencing actions and decisions by the United States against both former and current ICC prosecutors. The Chinese Foreign Ministry supported Russia’s stance, asserting that “the ICC should take an objective and fair position, respect the jurisdictional immunity of heads of state in accordance with international law, and avoid politicization and double standards.”[13]
The Russian Foreign Ministry further bolstered its argument by citing the ICC’s disregard for crimes allegedly committed by Georgian servicemen in South Ossetia, juxtaposed with its issuance of arrest warrants for certain South Ossetian citizens. Additionally, they noted the differing responses of the ICC Prosecutor to the crises in Ukraine and Palestine, as well as the disparate levels of funding allocated for investigating crimes in these regions.
In challenging the ICC prosecutor’s impartiality, Russia cited instances of what it perceives as selective justice targeting African leaders, prompting some to consider withdrawing from ICC membership[14]. One prominent case highlighted is that of Laurent Gbagbo, former President of Côte d’Ivoire, who became the first head of state to face charges before the ICC. During his tenure, the country faced political turmoil from 2002 onwards. Following disputed elections in 2010, violence erupted between government forces and supporters of opposition candidate Ouattara, backed by France. International intervention, including UN and French military involvement, led to Gbagbo’s arrest at his residence, in 2011, after which he was transferred to the ICC by Ivorian authorities. After nearly eight years of legal proceedings, Gbagbo was acquitted in 2019 due to insufficient evidence of his culpability. This case raises concerns that while the ICC prosecutor may have pursued legitimate aims, there are perceptions that his actions may have also aligned with the interests of powerful states, such as France, to remove an inconvenient president and favor a preferred candidate in a former colony.[15] Whether this criticism is justified or not, it appears certain at this point that Russia, China, and several African nations perceive the ICC prosecutor as lacking independence, possibly manipulated to serve Western interests. This perception undermines confidence in the ICC among countries of the Global South, potentially eroding its credibility and legitimacy.
Western countries and the Ukrainian crisis
Another factor adding to reservations from the Global South about the ICC’s independence relates to Western attitudes toward its prosecutions. While the U.S. welcomed the decision to arrest the Russian President, and expressed support for the ICC’s actions,[16] during the early 2000s, the U.S. government entered into anti-ICC agreements with 93 nations to preempt potential disputes over jurisdiction involving the U.S. President and ordinary citizens before the ICC prosecutor. The Bush and Trump administrations consistently opposed the ICC and refused to recognize its authority,[17] since the Rome Statute poses a potential threat of prosecution for U.S. officials (including the president) over national security decisions concerning counterterrorism, weapons proliferation prevention, and aggression deterrence. National law in the U.S. prohibits funding that could aid investigations or prosecutions of any U.S. citizen by the ICC. It also empowers the president to use “all necessary and appropriate means” to secure the release of any detained U.S. citizens[18]. Despite these legal restrictions, the U.S. government has devised methods to finance international criminal investigations that circumvent these prohibitions and bolster cooperation with the ICC, when it deems such actions beneficial.[19]
Two other permanent members of the UN Security Council (and members of the ICC), France and the UK, supported the ICC’s decision to arrest President Putin[20]. Traditionally, European countries are considered key allies of the ICC and supporters of Ukraine. Consequently, shortly after the conflict began, six General Prosecutors from EU member states, alongside their Ukrainian counterpart, established a Joint Investigation Team (JIT). Funded by Eurojust, this team is tasked with investigating serious crimes within Ukraine[21]. Despite historical differences between European countries and the US regarding the ICC, possibly influenced by power dynamics[22], they have found common ground this time. Participating countries in the JIT have signed a memorandum with the US Attorney General’s Office outlining practical measures for cooperation, information exchange, and US participation in coordination meetings supported by Eurojust[23]. Additionally, the UK played an active role in convening a conference attended by over 40 Justice Ministers globally, where many nations pledged increased funding for the court’s operations[24].
In light of the aforementioned details and the JIT’s reliance on funding from these nations, some scholars question the ICC prosecutor’s independence in the Ukrainian case[25]. They argue that the JIT’s focus on investigating crimes solely attributed to Russian authorities may overlook potential offenses committed by the Ukrainian military. In short, the Ukrainian crisis highlights the unprecedented financial, political, and organizational support from Western countries[26], notably with active participation from the United States, towards the ICC prosecutor’s efforts to investigate crimes involving Russian leadership.
The USA and the Israeli-Palestinian Conflict
The Israeli-Palestinian conflict has been a continuation of the global struggle for influence and the reshaping of the international landscape. Between October 2023 and June 2024, at least 37,000 civilians have perished in this conflict over territories once administered by Britain. Despite the glaring and unjustifiable civilian casualties, the ICC prosecutor’s approach to this conflict was notably delayed and differed markedly from that in Ukraine. Only after a prolonged period did the prosecutor request the Pre-Trial Chamber to issue an arrest warrant for Israeli Prime Minister Benjamin Netanyahu[27]. Mr. Netanyahu vehemently expressed his dissatisfaction with this decision through a video message[28].
While the United States previously welcomed and actively supported the ICC’s actions against Russia, it now not only condemned the ICC’s recent actions but also took direct measures to protect and shield Israel’s prime minister from international criminal prosecution by any means necessary. President Joe Biden condemned the decision as “outrageous,” stating that the U.S. “will always stand with Israel.”[29] Criticism from several U.S. senators followed, denouncing the actions of the ICC prosecutor for undermining the advancement of the global rule of law. They underscored Israel’s status as a functioning democracy with an independent judiciary, vowing measures to protect Israel from future ICC interventions[30]. In response, the U.S. House of Representatives passed legislation proposing significant economic sanctions and visa restrictions targeting ICC-affiliated individuals, judges, and their families[31]. Notably, the U.S. previously imposed sanctions on a former ICC prosecutor during President Trump’s administration for attempting to investigate crimes in Afghanistan, which were later lifted[32].
Those states that previously emphasized the critical importance of international justice for Russian war criminals and supported the ICC prosecutor have not, this time, taken adequate measures to counter the Israeli authorities’ attempts to obstruct an impartial investigation of alleged crimes. Recent revelations have indicated that former ICC prosecutor Fatou Bensouda faced significant pressure from Israeli authorities to halt the investigation into the Palestinian case. Reports suggest that Israeli intelligence services undertook extensive efforts to gather compromising information on Bensouda and her family members[33].
Facing a lack of customary political and financial support from the mentioned states, unlike in investigations involving African and Russian cases, the ICC prosecutor responded by condemning statements that undermined the independence of the prosecutor’s office and issued warnings of potential retaliatory actions. However, no substantial measures were taken, as he merely cautioned that such actions could potentially constitute crimes against the administration of justice.[34]
A spokeswoman from the Russian Foreign Ministry likened Washington’s response to the ICC charges against Israel’s leadership to a “scorpion stung by itself or a spider caught in its own web.”[35]
The UK, a significant political and financial supporter[36] of the ICC and the birthplace of Karim Khan’s career does not formally recognize Palestine as a state and acknowledges that Israel is not a signatory to the Rome Statute[37]. Using this rationale, the UK challenges the jurisdiction of the court over the Israeli Prime Minister, which has prolonged the judicial process of issuing an arrest warrant.[38] This issue should not have been contentious, considering that the procedures for recognizing the ICC’s jurisdiction by both Ukraine and Palestine were nearly identical.
In light of these developments, prominent UN experts expressed astonishment ” to see countries that consider themselves champions of the rule of law trying to intimidate an independent and impartial international tribunal to thwart accountability.” They urged all parties to safeguard the court’s independence[39], emphasizing the need for a coherent standard in the approach to international justice.
The Way Forward
While the Rome Statute establishes robust legal protections to ensure the prosecutor conducts impartial, neutral, and independent investigations and prosecutions of international crimes, both functionally and procedurally, these protections are not impervious to vulnerabilities that powerful countries can exploit to influence their activities. In the Ukraine conflict, Russia reacted to the prosecutor’s decision against Putin by issuing a warrant for his arrest—even threatening the ICC headquarters with missile strikes—leveraging its status as a nuclear power and China has aligned with Russia’s legal stance. Meanwhile, the other three permanent members of the UN Security Council—the US, France, and the UK—continue to extend substantial political, financial, and organizational support to the prosecutor. In the case of the Palestinian conflict, the first two UNSC members tacitly endorse the prosecutor’s move to issue an arrest warrant for Netanyahu, whereas the US has threatened sanctions against the Office of the Prosecutor and the UK has legally contested the court’s jurisdiction over Israel.
If the prosecutor, backed by legal assurances of independence, neutrality, and impartiality, were to investigate serious international crimes, he would face institutional threats such as collective political pressure, as seen in the case of African countries, or constraints on funding and economic sanctions. There are also personal threats, including the risk of arrest, visa restrictions, privacy violations, and threats to personal and family security. However, superpowers like Russia and the US tend to exert intimidation through the threat of military action or arrest, while countries such as the UK and Israel may employ different forms of influence and persuasion tactics. The legal safeguard protecting the prosecutor’s independence from interference by hostile nations is the authority to initiate criminal proceedings for crimes against the administration of justice. Yet, in practice, this recourse may prove insufficient against the influence wielded by superpowers.
Summarizing the above analysis, it becomes clear that major powers consistently aim to wield the ICC as a geopolitical instrument based on their strategic interests. Therefore, ensuring the neutrality and independence of the ICC prosecutor is essential. Firstly, implementing a more diversified funding mechanism for the ICC is crucial to reduce reliance on substantial contributions from influential states. One effective strategy could involve establishing an international criminal justice fund that is not earmarked for specific investigations. Secondly, it is crucial to forge broader coalitions of support within the Assembly of States Parties that transcend traditional Western powers. Including countries from diverse global regions aims to rebalance geopolitical influences within the ICC. Thirdly, enhancing the legal protections afforded to the ICC prosecutor against targeted sanctions, visa restrictions, and unjustifiable threats of prosecution is of utmost importance. In conclusion, the primary recommendation lies in fortifying the credibility and legitimacy of the ICC by guiding its judges and prosecutors with principles of fairness and equality in international criminal justice proceedings.
Picture Credit: “ICC Construction: June 2014” by *rboed* is licensed under CC BY 2.0.
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