The Court Built to Stop Atrocities Has Arrested Thirty-One People in Twenty-Four Years

There is a way in which the waiting room tells you everything you need to know. I visited The Hague in the winter of 2024, sat in the public gallery of the International Criminal Court, and watched lawyers in pressed suits debate procedural motions in a case that had been open for nine years. The defendant was not present. He had been indicted in 2015, and was still, as of that morning, commanding militias in the Democratic Republic of Congo. The gallery held eleven observers. I counted.

The International Criminal Court has been operational since July 1, 2002. It was built to do what the Nuremberg Tribunals did for Nazi war crimes: establish that individuals, not just states, bear responsibility for genocide, crimes against humanity, and war crimes. It was designed to end impunity. Twenty-four years later, the Court has issued arrest warrants for fifty-nine people. It has convicted ten. Thirty-one individuals remain in some stage of proceedings. The rest are dead, at large, or had their cases dropped.

I am not sure what I expected, but it was not this.

The Architecture of Non-Enforcement

The Rome Statute, which established the ICC, was drafted by diplomats who believed that law could substitute for force. It created a court with no police, no army, and no power to compel states to comply with its orders. Article 86 requires member states to "cooperate fully" with the Court. Article 89 requires them to arrest individuals subject to warrants when those individuals enter their territory. There is no enforcement mechanism. There is no penalty for refusal.

In June 2015, South Africa hosted Omar al-Bashir, the president of Sudan, for an African Union summit. The ICC had issued an arrest warrant for al-Bashir in 2009 for genocide in Darfur. South Africa, a signatory to the Rome Statute, did not arrest him. Al-Bashir attended the summit, delivered a speech, and flew home. The ICC referred the matter to the UN Security Council. The Security Council took no action. South Africa faced no consequences. In 2017, it withdrew its ratification of the Rome Statute. It rejoined in 2020, but the message had been sent.

The problem is not that the Court lacks jurisdiction. The problem is that jurisdiction without enforcement is a statement of preference, not a system of justice. The Rome Statute imagined a world in which states would cooperate because they believed in the rule of law. What it created instead was a court that can only prosecute individuals who are either already defeated or who make the mistake of traveling to countries that decide, for reasons of their own, to comply.

What Nuremberg Had

The Nuremberg Tribunals, held between November 1945 and October 1946, prosecuted twenty-four Nazi officials. Twelve were sentenced to death. The defendants were in custody because Germany had been occupied by the Allied powers. The prosecutors had access to documents, witnesses, and a defeated state apparatus that could no longer protect its officials. Nuremberg worked because it was backed by the force that had just won the war.

The ICC was designed to avoid this problem. It was designed to prosecute individuals regardless of whether their governments had been defeated. This was the innovation, and it was also the fatal flaw. A court that prosecutes the powerful requires either the consent of the powerful or the ability to compel them. The ICC has neither.

The pattern is not hard to see. The Court prosecutes individuals from weak states, or from states in the midst of civil conflict, or from states that refer their own citizens to the Court as a political tool. It does not prosecute individuals from powerful states, because powerful states do not comply with arrest warrants, and the Court has no mechanism to make them.

The Arrangement

The United States is not a party to the Rome Statute. Neither is Russia, China, India, or Israel. These five countries account for more than half of global military spending and have been involved in conflicts responsible for hundreds of thousands of civilian deaths over the past quarter-century. None of their officials have been prosecuted by the ICC. None will be.

In March 2023, the ICC issued an arrest warrant for Vladimir Putin for the unlawful deportation of Ukrainian children. It was the first time the Court had indicted a sitting head of state from a nuclear power. Putin did not appear. Russia is not a party to the Rome Statute. In September 2023, Putin traveled to South Africa for a BRICS summit. South Africa, which had arrested no one under its ICC obligations since it rejoined the treaty, announced that Putin would not attend in person. He appeared by video link. The warrant remains outstanding.

In November 2024, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for crimes against humanity in Gaza. The United States condemned the decision. The European Union issued a statement supporting the Court but did not commit to enforcement. Netanyahu continues to govern. Gallant remains free. The warrants, like most ICC warrants, are statements of legal opinion with no practical consequence.

This is the arrangement. The Court exists. It issues warrants. Weak states comply. Strong states do not. The Court files the warrants. The warrants accumulate in a database. Atrocities continue.

What Enforcement Would Require

There are two models for enforcing international humanitarian law. The first is consent: states agree to be bound by a legal framework and accept the jurisdiction of an impartial court. This is the model the ICC was designed to follow. It does not work when powerful states refuse to consent, and there is no penalty for refusal.

The second model is force: states or coalitions of states enforce humanitarian law through military intervention, economic sanctions, or coercive diplomacy. This is the model used in Kosovo in 1999, Libya in 2011, and, nominally, in the establishment of the International Criminal Tribunal for the former Yugoslavia. It requires political will, military capacity, and a willingness to bear the costs of enforcement. It is also selective, inconsistent, and often driven by strategic interests rather than legal principle.

A functioning system of international justice would require a mechanism that bridges this gap. It would require either universal jurisdiction—every state bound by the same legal obligations, with no permanent members of the Security Council able to veto enforcement—or a standing international police force capable of executing arrest warrants. The ICC has neither. The UN has neither. The result is a court that documents atrocities but cannot stop them, and a body of law that defines crimes but cannot punish perpetrators.

Who Benefits

The existence of the ICC benefits states that wish to appear committed to international law without bearing the costs of enforcement. It allows European governments to condemn atrocities while continuing trade relationships with regimes that commit them. It allows the United States to fund the Court's operations while remaining outside its jurisdiction. It allows China and Russia to veto Security Council resolutions that might authorize enforcement actions while presenting themselves as defenders of sovereignty.

The Court also benefits the legal profession. The ICC employs more than nine hundred people, most of them lawyers, investigators, and translators. Its annual budget in 2025 was 170 million euros. It has generated an entire ecosystem of academic research, NGO advocacy, and policy analysis. The Court provides careers, conferences, and a framework for discussing justice. What it does not provide is justice.

What It Means to Lose

I spoke to a woman in Goma, in the Democratic Republic of Congo, in the spring of 2025. Her village had been burned in 2018 by a militia affiliated with the government. Forty-three people were killed. The commander responsible had been indicted by the ICC in 2020. He was still commanding troops. She had given testimony to investigators twice. She had traveled to Goma to meet with ICC representatives. She had been promised that the investigation was ongoing. Seven years later, the commander was living sixty kilometers from her village.

She asked me when he would be arrested. I told her I did not know. She asked if anyone would arrest him. I said I did not think so. She asked why she had been told to testify if nothing would happen. I had no answer.

This is what it means to lose. Not the absence of a court, but the presence of a court that cannot act. Not the absence of law, but the presence of law that does not bind the powerful. Not the absence of documentation, but the presence of documentation that changes nothing.

The Reckoning

The question is not whether the ICC should exist. The question is whether a court without enforcement serves justice or undermines it. A legal system that prosecutes only those already defeated is not a legal system. It is theater. And theater, no matter how elaborate, does not stop atrocities.

There are three possible paths forward. The first is to create a true system of enforcement: universal jurisdiction, binding on all states, with penalties for non-compliance. This would require a fundamental restructuring of international institutions and the surrender of sovereignty by powerful states. It will not happen.

The second is to accept that international justice depends on power, not law, and to build coalitions willing to enforce humanitarian norms through coercive means. This was the NATO model in Kosovo, the UN model in Libya. It is selective, expensive, and subject to the political will of states with the capacity to act. It is also the only model that has ever worked.

The third is to continue as we are: to maintain the ICC as a symbol of international commitment to justice, knowing that it prosecutes a vanishingly small number of perpetrators, and that those prosecutions are largely limited to officials from weak or defeated states. This is the path we are on. It is a path that documents atrocities but does not stop them, that names crimes but does not punish them, that provides victims with testimony and paperwork but not safety.

I know what I am talking about here. I have watched the system work for two decades. I have seen the warrants issued, the suspects at large, the trials that take years and produce limited results. I have met the victims who testified and then returned to villages where the perpetrators still command. The system is not broken. The system is working exactly as it was designed to work. The question is whether we are willing to admit that design was never meant to stop atrocities. It was meant to acknowledge them.

There is a way in which the waiting room tells you everything you need to know. Eleven people in the gallery. Nine years on the docket. The defendant still at large. This is not justice. This is documentation. We have built an archive of atrocities, bound in legal language, maintained by an institution that cannot enforce its own orders. We tell ourselves this is progress. The question is who we are telling the story to, and what we expect them to believe.