ICC faces legitimacy challenges on its 22nd anniversary over investigations in Palestine, Ukraine

By Selman Aksunger

THE HAGUE (AA) - As the International Criminal Court (ICC) marks its 22nd anniversary, it is facing criticism over its “double standards” for failing to investigate the genocide in Palestine as quickly as it did the war in Ukraine and is undergoing a crucial test to maintain its legitimacy

Since its founding treaty the Rome Statute entered into force on July 1, 2002, the ICC has faced numerous criticisms. Once again, it is undergoing a tough examination due to its different approach to the investigations in Palestine and Ukraine.

In its early years, the ICC concentrated its trials particularly on conflicts in Africa, and it continues to be at the center of discussions due to the progress it has made in the Ukraine investigation and its slow pace in the Palestine investigation.

- The ICC since its establishment

Anadolu has compiled the important cases handled by the ICC in its 22-year judicial process, the criticisms directed at the court, the different processes in the Ukraine and Palestine investigations, pressure from the US, Israel and the UK on the court, and the current status of the arrest warrants it has sought for Israeli officials.

The ICC is an independent institution outside the UN system and conducts judicial activities concerning four types of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.

The ICC has complementary jurisdiction and investigates crimes that states are unable or unwilling to prosecute at the national level.

The court issued its first conviction against rebel leader Thomas Lubanga Dyilo in March 2012 for using child soldiers in conflicts in the Democratic Republic of Congo. To date, it has convicted 11 individuals in 32 cases.

The weakness of the ICC was revealed in the withdrawal of Burundi in 2017 and the Philippines in 2019 from the court after investigations were launched against them, which showed that states can leave the ICC if they wish.

The fact that only 11 convictions have been issued to date demonstrates how slow the ICC’s investigation and prosecution processes are and also shows that it avoids targeting officials from powerful states, leaving many crimes unpunished.

- Africa and ICC's relations

While 33 of the 124 countries that are parties to the ICC are located on the African continent, 10 of the 17 active investigations by the court are focused on crimes committed in African countries.

All 32 defendants currently being actively prosecuted before the ICC are Africans, and despite nearly a quarter of the court's members being from African countries, the ICC continues to face growing criticism due to its entirely African case docket.

Recently standing out with the Ukraine and Palestine investigations, the ICC has been targeted since its establishment for focusing on Africa, and it is accused of using its judicial power to influence the political structure in Africa.

Its refusal to investigate alleged war crimes committed by British soldiers in Iraq and war crimes committed by US and Australian soldiers in Afghanistan draws the court into the middle of global political and structural inequalities.

- Non-ICC parties

Although the ICC's jurisdiction is potentially universal, as it can prosecute crimes committed in member states regardless of the perpetrators’ nationalities, more than 70 countries within the UN system are not parties to the ICC, limiting its jurisdiction.

Countries like the US, China, Russia, India, Israel, Türkiye, Iran, and Egypt, which represent more than half of the world's population, are not parties to the ICC, and the absence of many conflict-ridden states like Syria and Iraq from the court reduces its deterrence.

More than 20 years have passed since the Rome Statute, which established the ICC. Since then, powerful states have refused to participate in many investigations concerning serious violations and have hindered the process, forcing the ICC to adopt a patchwork approach rather than a universal one.

However, each prosecution still offers victims some possibility of redress and sends a message that impunity can be challenged.

It is noted that civil society, which played a key role in the establishment of the court, will continue to defend and work to strengthen the ICC.

- Criticism of double standards in Ukraine-Palestine investigations

Following former ICC Prosecutor Fatou Bensouda's completion of the preliminary examination of the situation in Ukraine on Dec. 11, 2020 and the subsequent opening of an investigation, the court announced arrest warrants in March 2023 for Russian President Vladimir Putin and Russian Children's Rights Commissioner Maria Lvova-Belova, in March 2024 for Lieut. Gen. Sergey Ivanovich Kobylash, then commander of the Long-Range Aviation branch of the Russian Aerospace Forces, and Admiral Viktor Nikolayevich Sokolov, then commander of the Russian Navy's Black Sea Fleet, and in June 2024 for Secretary of the Russian Security Council Sergey Shoigu, who is a former Russian defense minister, and Russian Chief of General Staff Valery Gerasimov.

Having issued arrest warrants for about six high-ranking Russian officials in the past year, the ICC is accused of applying double standards for not having issued any accepted arrest warrants or summons orders in the investigation concerning violations in Palestinian territories since it began in March 2021.

Despite ongoing mass war crimes, crimes against humanity and genocide in Gaza, the budget and human resources allocated by the ICC Prosecutor's Office for the Palestine investigation are much less than those allocated for Ukraine, leading to increasing criticism of “double standards.”

- Pressure on ICC from US, Israel

Meanwhile, the US is increasing its pressure to obstruct an investigation against the Israeli officials with letters from some senators warning that issuing arrest warrants for Israeli Prime Minister Benjamin Netanyahu and other officials would have negative repercussions for the court and its officials.

Besides the US, Israel is engaging in espionage and intimidation activities against the ICC to prevent investigations into the perpetrators of crimes committed in Palestine.

Although the Netherlands conveyed its discomfort with the obstruction of ICC investigations to the Israeli ambassador to The Hague by summoning him to the Foreign Ministry, Israeli intelligence’s threats in secret meetings with the ICC Prosecutor to stop the investigation reveal the extent of the pressure on the court.

- UK’s step to delay Palestine investigation

As ICC Chief Prosecutor Karim Khan is considering issuing arrest warrants for Israeli Prime Minister Netanyahu and Defense Minister Yoav Gallant, the ICC pre-trial chamber’s permission on June 27 for the UK to present legal arguments about the scope of the investigation is expected to delay the issuance of the warrants.

While ICC judges have yet to approve the arrest warrants, the UK’s request to present arguments in the ICC's Palestine investigation is expected to delay the investigation.

The UK is expected to oppose the issuance of arrest warrants for Netanyahu and Gallant, arguing that Palestine does not have the right to unilaterally apply for state recognition at the UN and join the ICC by accepting the Rome Statute and thus the ICC does not have jurisdiction over crimes committed in Palestinian territories.

The UK, which claims that the Oslo peace process that began in 1993 between Israel and Palestine does not allow Palestine to unilaterally gain state status, is known for supporting Kosovo's independence against Serbia in a similar situation.

Despite Palestine's “state status” being consistently confirmed by the UN and other international organizations, the UK is demanding that Palestine not be recognized as a state by the ICC. Along with the UK’s demand, the increasing pressure on the court, which is burdened with criticisms, is said to weaken its power.