We Built International Law to Stop Atrocities. Then We Made It Voluntary.

There is something you notice about the International Criminal Court building in The Hague, something you see before you understand what it means. The entrance has security checkpoints, metal detectors, bulletproof glass. But the parking lot has no barriers. Anyone can drive up to within fifty meters of the building. The reason is simple: no one the Court has indicted has ever tried to reach it. They know they do not need to.

I am thinking about this because it is May 2026, and the mechanisms we built to prevent genocide and punish war crimes are intact and functioning and completely irrelevant. The International Criminal Court issued fifty-six arrest warrants between 2002 and 2024. Eleven people are in custody. The rest are living openly in their home countries, addressing parliaments, commanding armies, accepting diplomatic credentials. Omar al-Bashir, indicted for genocide in Darfur in 2009, traveled to eight countries after his indictment. None arrested him. He was deposed in a coup in 2019. The charges remain. He lives in Khartoum.

This is not an accident. It is the design.

The Architecture of Impunity

The Rome Statute, which created the ICC in 1998, was negotiated by 160 countries over five years. It defines genocide, crimes against humanity, war crimes, and the crime of aggression. It establishes jurisdiction. It sets out procedures. What it does not establish is enforcement. Article 86 says states "shall cooperate fully" with the Court. Article 87 says the Court "may invite" states to comply. Article 89 says a state "shall" arrest an indicted person on its territory. But if it does not, there is no penalty. The Rome Statute has no mechanism to compel compliance.

This was not an oversight. It was the price of consensus. The United States refused to ratify the treaty unless American citizens were exempted from prosecution. Russia and China refused to grant the Court any enforcement power. The compromise was a court with jurisdiction but no police force, with warrants but no marshals, with verdicts but no way to execute them. We built international law the way we build everything we want to exist but do not want to work: we made it voluntary.

The pattern is visible from the beginning. The first arrest warrant the ICC issued was for Joseph Kony, leader of the Lord's Resistance Army in Uganda, in 2005. Kony has not been arrested. He is believed to be in the Central African Republic or South Sudan. The second set of warrants was for five LRA commanders. Two are dead. Two were never apprehended. One, Dominic Ongwen, was arrested in 2015—by former LRA members who handed him to U.S. special forces, who transferred him to the Court. The ICC did not find him. He was delivered.

What We Choose to Prosecute

The ICC opened a preliminary examination into alleged war crimes by British forces in Iraq in 2014. The examination lasted sixteen years. In December 2020, the Prosecutor decided not to pursue charges, finding that while there was evidence of war crimes, the scale was insufficient to meet the Court's gravity threshold. The United States has not ratified the Rome Statute. In 2002, Congress passed the American Service-Members' Protection Act, which authorizes the president to use "all means necessary and appropriate" to free U.S. personnel detained by the ICC. The law is informally known as The Hague Invasion Act.

In March 2023, the ICC issued an arrest warrant for Vladimir Putin for the unlawful deportation of children from Ukraine. Putin has not been arrested. He traveled to Kyrgyzstan, a Rome Statute signatory, in October 2023. He was not detained. He attended a summit in Mongolia, also a signatory, in September 2024. Mongolia said it was "unable to execute the Court's request" due to its energy dependence on Russia. The European Union issued a statement expressing disappointment. There were no sanctions, no consequences, no follow-up.

I know what the counterargument is. I have heard it from international lawyers, from diplomats, from scholars who have spent careers building the architecture of international justice. The Court was never meant to replace national systems. It was meant to be a backstop, a last resort, a signal that impunity has limits. It was meant to change norms, not arrest every war criminal. And perhaps that is true. Perhaps the ICC has deterred some atrocities we cannot see. But what we can see is this: the system deters no one with the power to ignore it.

The Precedent We Cannot Escape

There is a historical analogy that keeps surfacing, and it is not the one anyone wants. The Nuremberg trials prosecuted twenty-four Nazi leaders in 1945 and 1946. Twelve were sentenced to death. Ten were executed. The trials worked not because international law compelled compliance but because the Allied powers occupied Germany and controlled the defendants. Nuremberg was not international justice; it was victors' justice backed by military force. It worked because it could be enforced.

The International Criminal Tribunal for the former Yugoslavia, created in 1993, indicted 161 individuals. Most were arrested only after NATO forces intervened in Bosnia and Kosovo and the regimes that sheltered them collapsed. Slobodan Milošević, indicted in 1999, was arrested in 2001—not by the Tribunal but by Serbian authorities after his government fell. Radovan Karadžić, indicted in 1995, was arrested in 2008, thirteen years later, living under an assumed name in Belgrade. Ratko Mladić, indicted in 1995, was arrested in 2011, sixteen years later, also in Serbia. They were caught not because the law compelled their surrender but because the political conditions changed.

What Enforcement Would Require

If we wanted international justice to work, we know what it would require. It would require an enforcement mechanism—sanctions, asset freezes, travel bans—that automatically triggered when a state failed to execute a warrant. It would require UN Security Council authorization to use force to apprehend indictees when member states refused. It would require that signatory states treat ICC arrest warrants like Interpol Red Notices, executed upon sight. It would require the withdrawal of diplomatic recognition from governments that harbor indicted fugitives. It would require that states choose between membership in the international order and complicity with war criminals.

None of this exists. And none of it will exist, because the powers that would need to enforce it are the same powers that insisted it remain voluntary. The United States will not subject its soldiers to ICC jurisdiction. Russia will not allow the Court to issue warrants for its leaders. China will not permit ICC investigations into Xinjiang. The system was built to prosecute the defeated and the marginal, not the powerful.

I am not arguing that the ICC should be abolished. I am arguing that we should stop pretending it is what we say it is. It is not a court of last resort for the world's worst crimes. It is a court of last resort for the world's weakest criminals. It prosecutes those who lose wars and fall from power, not those who win them and keep it.

The Moral Hazard We Have Created

There is a case that clarifies everything. In November 2024, the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant for alleged war crimes in Gaza. The warrants cited systematic attacks on civilians and the use of starvation as a weapon of war. Within forty-eight hours, the United States announced it would not recognize the Court's jurisdiction. Germany said it would "examine" whether it was obligated to arrest Netanyahu if he entered German territory. The United Kingdom said it would "study" the implications. France said enforcement was "legally complex." Netanyahu addressed the Knesset the next day. He has not been arrested.

The message is unambiguous: international humanitarian law applies to those without the power to resist it. It is enforced when convenient and ignored when enforcement would carry political cost. This is worse than having no court at all, because it creates the illusion of justice while demonstrating that justice is conditional. It tells war criminals in weak states that they will be hunted. It tells war criminals in powerful states that they will be immune. It tells victims that their suffering matters or does not matter depending on who inflicted it.

What It Means to Live Without Enforcement

I am thinking of a woman I met in Goma, in eastern Democratic Republic of Congo, in 2019. Her village had been burned by a militia whose commander was under ICC indictment. She knew his name. She had seen his photograph. She knew he was wanted by the Court in The Hague. She asked me when he would be arrested. I did not know what to tell her. He is still free. His militia still operates. The warrant is still outstanding.

This is what it means to build a system of justice without enforcement: it means telling victims that their claims are valid but not actionable, that their suffering is documented but not redressed, that the law recognizes the crimes committed against them but cannot stop those crimes from continuing. It means building an architecture of accountability that functions as theater, a performance of justice that substitutes for the real thing.

The alternative is difficult to articulate without sounding naive or brutal. Either we create real enforcement mechanisms—which would require powerful states to submit to a system that could prosecute them—or we acknowledge that international justice is not justice at all but a consolation prize offered to those without the power to demand more. Either the law applies to everyone or it is not law. Either war crimes are prosecuted regardless of the criminal's power or we are simply prosecuting the losers of wars and calling it justice.

The Reckoning We Refuse

We tell ourselves stories about international law, about the arc of history bending toward justice, about the slow accumulation of norms and precedents that will someday make atrocity impossible. But the story we are actually living is simpler and darker: we built a legal system to prosecute war crimes, and then we made compliance with that system optional for anyone powerful enough to refuse it. We created a court, and then we ensured it would have no way to enforce its rulings. We wrote laws, and then we made them applicable only to the defeated.

This was not an accident. It was a choice, made by the same states that wrote the Rome Statute and funded the Court and sent their foreign ministers to The Hague to deliver speeches about the importance of accountability. They built a system that could hold others accountable but never themselves. They created international justice as a tool to be deployed, not a principle to be followed.

And so we have what we have: a court that issues warrants no one enforces, indictments no one executes, verdicts that matter only if the defendant is already powerless. We have international law that applies internationally only in theory. We have justice that is administered selectively, which is to say we do not have justice at all.

I am not sure what I expected when the ICC was created, but it was not this. I did not expect that twenty-eight years later, we would still be explaining why war criminals walk free. I did not expect that the Court would become proof not of the reach of justice but of its limits. I did not expect that international law would become another name for the rules that apply only to those without the power to break them.

But that is what we built. And until we decide that enforcement matters more than sovereignty, that justice matters more than geopolitics, that the law applies to everyone or it applies to no one, that is what we will continue to have: a court without power, warrants without arrests, a system of international justice that exists everywhere in theory and almost nowhere in fact.