The ICC Issues Warrants. Then the Accused Get State Dinners.

It requires a particular kind of institutional courage to issue an arrest warrant for a head of state and then wait politely for him to turn himself in. This week, Omar al-Bashir, wanted by the International Criminal Court since 2009 for genocide in Darfur, was reportedly golfing in Khartoum. Vladimir Putin, indicted in March 2023 for the deportation of Ukrainian children, attended a state dinner in Mongolia—an ICC member state—in September 2024. The Mongolian government issued a statement expressing its 'competing obligations.' One is tempted to ask what obligation competes with arresting a man accused of kidnapping children, but international law, it turns out, is largely theoretical when the accused controls an army.

The International Criminal Court was established in 2002 to prosecute genocide, war crimes, and crimes against humanity when national courts could not or would not act. It was the culmination of a century of legal ambition, from the Nuremberg tribunals to the International Criminal Tribunal for the former Yugoslavia. The architects of the Rome Statute envisioned a permanent institution that would end impunity, deter atrocities, and vindicate the principle that no one is above the law. What they created instead was a court with prosecutors, judges, and 123 state parties—but no police force, no enforcement mechanism, and no way to compel compliance. It is a judicial system that outsources the most critical function of justice—arrest—to the very governments it seeks to hold accountable.

The Precedent We Forgot

This is not, of course, without precedent. The problem was diagnosed and solved once before, in 1945. The Nuremberg trials succeeded not because of legal architecture but because the Allied powers occupied Germany, controlled its borders, and arrested the defendants. Hermann Göring did not surrender voluntarily; he was captured by American troops in Bavaria. The International Military Tribunal had jurisdiction because the victors imposed it. Justice was possible because enforcement was guaranteed.

The ICC, by contrast, was built on a different theory: that states would voluntarily cooperate in their own prosecution, or in the prosecution of their allies. This has not happened. Al-Bashir visited South Africa, an ICC member, in 2015 for an African Union summit. South Africa did not arrest him. It issued an apology to the court and a legal brief explaining that arresting a sitting head of state would violate diplomatic immunity and destabilize the region. The ICC's judges responded with a ruling that South Africa had violated its treaty obligations. South Africa responded by threatening to withdraw from the treaty. Al-Bashir attended another summit the following year, this time in Jordan, also an ICC member. Jordan also did not arrest him. The pattern is now well-established: issue warrant, watch accused travel freely, issue strongly worded ruling, repeat.

The Argument They Haven't Made

The standard defense of the ICC is that it deters future crimes even if it cannot punish past ones, and that symbolic justice is better than no justice at all. This argument might be more persuasive if there were evidence for it. The court opened investigations into the situation in Darfur in 2005. Al-Bashir was indicted in 2009. Between 2009 and 2020, an estimated 300,000 additional people were killed in Sudan's internal conflicts, including renewed violence in Darfur. The indictment did not deter the crimes; it arguably entrenched the accused, who calculated—correctly—that surrendering to the court would mean life imprisonment, while remaining in power would mean impunity.

The same logic applies in Ukraine. The ICC issued an arrest warrant for Vladimir Putin on March 17, 2023, citing evidence of systematic deportation of Ukrainian children to Russia. The Kremlin dismissed the warrant as 'null and void.' Putin has since traveled to Kyrgyzstan, China, Mongolia, the United Arab Emirates, and Saudi Arabia. Mongolia, bound by the Rome Statute, hosted him anyway. The others are not ICC members and had no legal obligation. The result is a two-tiered system: leaders of weak states without powerful allies can be arrested and tried; leaders of strong states, or leaders protected by strong states, cannot. Joseph Kony is a fugitive. Uhuru Kenyatta was a sitting president when indicted, and the charges were eventually dropped. The difference was not the evidence—it was the geopolitical weight of Kenya versus the Lord's Resistance Army.

What Enforcement Could Look Like

There are exactly two ways to make international criminal law enforceable. The first is to give the court its own enforcement capacity—an international police force with the authority to arrest indictees in non-compliant states. This would require a standing military force, operating under UN or ICC authority, with rules of engagement, airlift capacity, intelligence infrastructure, and the willingness to violate sovereignty in pursuit of justice. It would, in other words, require the international community to declare that arresting war criminals is worth going to war over. No state has proposed this, because no state wants a precedent that could be used against its own leaders.

The second option is to make non-compliance prohibitively expensive. The Rome Statute allows the ICC to refer non-compliant states to the Assembly of States Parties or the UN Security Council. In practice, this has meant symbolic rebukes with no consequences. A credible enforcement mechanism would impose automatic sanctions—asset freezes, travel bans, suspension from international organizations, exclusion from trade agreements—on states that refuse to arrest indictees. South Africa's failure to arrest al-Bashir in 2015 should have triggered immediate suspension from the UN General Assembly, the African Union, and the World Trade Organization. It did not, because the Rome Statute has no enforcement clause, and states prefer symbolic condemnation to costly action.

The Objection, and Why It Fails

The objection to enforcement is always the same: it would politicize the court, undermine its legitimacy, and make it a tool of Western imperialism. This argument is correct about the risk and wrong about the alternative. The ICC is already politicized—by its inability to prosecute the powerful. Every time al-Bashir boards a plane, every time Putin attends a summit, every time an ICC member state shrugs and invokes 'competing obligations,' the court signals that its jurisdiction is decorative. The perception in much of the Global South is not that the ICC is a neutral arbiter but that it prosecutes African warlords while giving Western leaders a pass. This perception is accurate. The court has opened ten investigations, eight of them in Africa. The exceptions—Georgia, Ukraine, Palestine, and Afghanistan—have produced warrants for Russians, Hamas officials, and Taliban commanders, but no Americans, no Israelis, no French, no British.

The response to this critique should not be to weaken enforcement but to strengthen it and make it universal. If the ICC is serious about ending impunity, it must be willing to indict American generals, Israeli prime ministers, French arms dealers, and British intelligence officers when the evidence warrants it. And it must have the power to arrest them. Anything less is not justice—it is a system in which the weak are punished and the strong write the rules.

The Numbers Don't Lie

In 24 years of operation, the ICC has issued 57 arrest warrants. It has successfully tried and convicted ten individuals. Six convictions have been upheld on appeal. All ten convicted individuals are African. The court has spent approximately €2 billion, funded primarily by European states. Its annual budget for 2026 is €179 million. For comparison, the city of The Hague, which hosts the court, spends €1.2 billion annually on municipal services. The ICC costs less than garbage collection in a mid-sized Dutch city, and has achieved a conviction rate of 17.5% among those indicted and less than 1% among those credibly accused of mass atrocities in situations under investigation.

The Policy the Court Will Never Propose

Here is what a functional international criminal court would look like. It would have a standing arrest and detention unit, staffed by personnel seconded from national police and military forces, operating under ICC command. It would have intelligence-sharing agreements with Interpol, Europol, and national intelligence agencies. It would have an enforcement division empowered to request UN Security Council authorization for extraterritorial arrests in cases of non-compliance. It would have automatic sanctions protocols: any state that fails to execute an ICC arrest warrant within 90 days of an indictee entering its territory would face suspension from the UN General Assembly, freezing of development aid, and exclusion from international financial institutions.

It would also require a Charter amendment allowing prosecution of nationals from non-member states when crimes occur on the territory of member states or when referred by the Security Council—closing the loophole that currently allows the United States, Russia, and China to exempt their citizens from ICC jurisdiction. And it would require that states parties accept universal jurisdiction: that crimes within ICC mandate can be prosecuted by any state, not only the territorial state or the state of nationality.

None of this will happen. The ICC will continue to issue warrants, watch them ignored, and publish reports lamenting non-compliance. States will continue to invoke sovereignty, diplomatic immunity, and 'regional stability' as reasons not to arrest war criminals. And the international community will continue to pretend that a court without enforcement is a meaningful deterrent to genocide.

What History Suggests

There is a precedent for what happens when an international institution is built without enforcement power and expected to police powerful states through moral suasion. The League of Nations, established in 1920 to prevent war through collective security, collapsed within 19 years. It issued condemnations when Japan invaded Manchuria in 1931, when Italy invaded Ethiopia in 1935, when Germany remilitarized the Rhineland in 1936. It imposed no meaningful sanctions. The aggressor states ignored the League, then withdrew from it, then started the Second World War. The lesson was clear: institutions without enforcement are aspirations, not constraints.

The architects of the United Nations learned that lesson and built the Security Council with enforcement powers: economic sanctions, arms embargoes, and authorization for military force. The system is imperfect—veto power makes it selective—but when it functions, it can impose real costs. The ICC learned the opposite lesson. It was designed to avoid the political compromises of the Security Council by creating an independent judicial body. The result is an institution with moral authority and no leverage—a court that can shame but not compel, indict but not arrest, condemn but not punish.

The international legal order is now littered with institutions that issue rulings no one obeys. The International Court of Justice ruled in 2020 that Myanmar must take steps to prevent genocide against the Rohingya. Myanmar's military junta ignored the ruling and intensified the campaign. The ICJ has no enforcement mechanism. The European Court of Human Rights has issued over 20,000 judgments; approximately 40% remain unexecuted. The Inter-American Court of Human Rights has a similar compliance problem. The pattern is universal: courts without enforcement become filing systems for atrocities, not mechanisms for justice.

The Choice We're Pretending Not to Make

The question is not whether the ICC should have enforcement power. The question is whether the international community wants a justice system or a therapeutic exercise. If the goal is accountability—if the claim is that no one is above the law—then someone must be empowered to arrest those who break it. If the goal is to document crimes, provide a forum for victims, and occasionally convict a warlord unlucky enough to lose a civil war, then the current system is adequate.

But we should stop calling it justice. Justice is not the ritual condemnation of crimes while the perpetrators hold office. Justice is not a warrant that doubles as a travel advisory. Justice is not a court that costs €179 million a year and produces six final convictions in a quarter-century. We have built an elaborate monument to the principle that mass atrocities are unacceptable. We have staffed it with prosecutors, judges, and legal scholars. We have written a statute, opened investigations, and issued indictments.

What we have not done is build a system capable of delivering the one thing justice requires: consequences. Until we do, the ICC will remain what it is now—a court where the accused get indictments in absentia and state dinners in person, where international law is solemnly invoked and systematically ignored, and where the only thing more predictable than the crimes is the impunity that follows them.