Tested, Not Broken: Re-architecting ICC against Geopolitical Coercion

Wendy Vidal

The International Criminal Court (ICC)  is confronting an existential test unlike any in its history. The Court is currently facing U.S. economic sanctions against its officials, consecutive member state withdrawals over accusations of selective justice, and the removal of Prosecutor Karim Khan. These pressures intensified after the ICC issued arrest warrants against major power figures such as Vladimir Putin for war crimes in Ukraine, and Israeli leaders like Prime Minister Benjamin Netanyahu and his minister of defence, for war crimes and crimes against humanity. These actions demonstrate that the Court is actively pursuing high-stakes accountability rather than remaining a politically safe tribunal limited to Global South states. Contrary to what media and critics describe as the “decline of the ICC”, the current circumstances demonstrate the predictable structural friction generated when an increasingly independent Court exercises jurisdiction over powerful global actors.

To understand why the ICC seems to be under attack from every corner and faces limited capacity to defend itself, it is necessary to review the context in which the ICC was established. The origins of the ICC can be traced back to continuous efforts to hold individuals accountable after World War II. Later, at the end of the Cold War, with the genocides in Rwanda and Yugoslavia in the 1990s, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), which laid the practical foundation for a permanent court. Ultimately, these international efforts landed in the Rome Statute, adopted in 1998 by 120 countries, which created the ICC. The statute came into force in 2002, when the ICC began its official operations in The Hague, Netherlands. The Court was created with a mandate to investigate and prosecute individuals responsible for genocide, crimes against humanity, war crimes, and, more recently, the crime of aggression. The Court’s jurisdiction is complementary to national criminal jurisdictions, which means it handles cases where national courts are unwilling or unable to prosecute such crimes.

In this post-Cold War context, the founders of the Court envisioned global support, but major powers such as the United States, Russia, China, and Israel did not join the ICC in the end. Built on principles of international cooperation and complementarity, the institution did not fully anticipate how the absence of major power backing would undermine its stability, marking the beginning of predictable friction between the ICC and non-member states.

These historical roots explain the Court's vulnerability to political pressure, setting the stage for an examination of the specific challenges currently testing its resilience.

Geopolitical Coercion and External Lawfare

U.S. Sanctions

On July 13, 2026, U.S. Secretary of State Marco Rubio announced Washington’s diplomatic campaign to dismantle the ICC “brick by brick”. On August 12, U.S. Defence Secretary Pete Hegseth urged Latin American members of the Americas Counter-Cartel Coalition (A3C) to withdraw from the ICC, accusing the tribunal of undermining national sovereignty. This rhetoric builds on decades of tension, as the United States signed but never ratified the Rome Statute. By signing, the U.S. initially engaged the Article 18 VCLT obligation, which binds signatory states to refrain from acts that would defeat the treaty's object and purpose. This interim obligation persisted until Washington formally declared its intention not to become a party. Currently, under Trump’s presidency, this friction has escalated significantly. 

During Trump’s first administration, tension between the ICC and the United States escalated after then-Prosecutor Bensouda requested authorisation to investigate U.S. personnel for alleged war crimes in Afghanistan. Despite opposition, the ICC authorised the investigation in March 2020, which prompted Trump to issue Executive Order 13928 imposing sanctions on Bensouda and a senior staff member. Although her successor, Karim Khan, deprioritised the investigation in Afghanistan in 2021, he continued inquiries into the situation in Palestine. In May 2024, Khan requested arrest warrants for Israeli Prime Minister Netanyahu and his minister of defence, and Hamas Leaders. In response, the Trump administration proposed the Illegitimate Court Counteraction Act, which was blocked by Congress.

At the beginning of Trump’s second term, he issued Executive Order (EO) 14203 “Imposing Sanctions on the International Criminal Court”, on 6 February 2025. Appendix A of the EO added Khan and nine ICC judges to the list of Specially Designated Nationals and Blocked Persons. This EO authorises the United States government to impose significant penalties on ICC officials involved in investigating or prosecuting U.S. citizens or allied nations who have not consented to ICC jurisdiction. The sanctions include entry bans into the United States for the designated individuals, the blocking of property or assets under United States control, and a prohibition preventing anyone, including United States citizens, from providing funds, goods, or services to them. This legislation is based on the International Emergency Economic Powers Act, which authorises the president to declare a national emergency to deal with unusual threats to national security, foreign policy and the economy of the United States. The EO establishes that ICC investigations constitute an unusual and extraordinary threat to the national security and foreign policy of the United States. Moreover, Trump argues that the ICC lacks jurisdiction in the Palestine case since Israel is not a member state of the Rome Statute.

The collateral effect of these sanctions has severe implications for Court officials. Although sanctions formally target property within United States jurisdiction, in practice, they translate to sweeping disruptions in global banking. European banks frequently over-comply with United States sanctions, leaving ICC staff members unable to access bank accounts or credit cards and directly threatening their livelihoods. As a preemptive measure to shield personnel from sudden liquidity shocks, the Court has even resorted to paying staff salaries months in advance. Collectively, these sanctions restrict the fundamental freedoms of ICC personnel and expose the Court's structural vulnerability to major powers. 

Trump´s abuse of power represents a direct assault on the rule of law and judicial independence, ultimately undermining the Court's capacity to prosecute the most serious crimes under international law. Consequently, the fact that European banks adhere to United States-driven compliance demonstrates the urgent need for the EU bloc to shield the Court from extraterritorial financial pressure.

Russian counter-warrants against the ICC

Another incident of retaliation targeting the ICC comes from Russia. In 2023, the ICC issued arrest warrants against President Vladimir Putin and other Russian officials for war crimes in Ukraine. The Kremlin dismissed the actions as null and void under international law. In response, on December 12, 2025, the Moscow City Court convicted ICC Prosecutor Khan and eight ICC judges in absentia on charges related to the unlawful prosecution of Russian citizens. Prosecutor Khan received a 15-year prison sentence, while the other defendants received terms ranging from 3.5 to 15 years, and all were placed on a Russian federal wanted list.

These proceedings constitute another attempt to undermine judicial independence and intimidate ICC officials. They also violate Russia’s obligations under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) regarding the right to a fair trial and due process. Trials in absentia without proper notification violate these standards, as defendants must be duly notified to secure independent legal counsel and prepare a defence. In this case, announcements from the Kremlin indicate that no such procedural safeguards were provided.

The hostile actions taken by the United States and Russia constitute clear acts of retaliation against the ICC’s investigations in Palestine and Ukraine. In doing so, both nations have targeted ICC staff with punitive sanctions merely for carrying out their official duties, violating the functional immunity guaranteed to them under Article 48 of the Rome Statute. These threats foster a culture of impunity and set a dangerous precedent, signalling that domestic legal systems can be weaponised to persecute ICC officials. Such personal attacks on staff highlight a critical gap in the Court’s ability to protect its personnel against state-sponsored reprisal.

Both the United States and Russia assert a lack of ICC jurisdiction to prosecute nationals of non-State Parties, arguing that such actions violate state sovereignty. These arguments are often spread to cause confusion and misinformation among the public, particularly for those who are unfamiliar with the mandate of the Court. In fact, Article 12(2)(a) of the Rome Statute explicitly establishes that the Court has territorial jurisdiction over crimes committed within a State Party, regardless of whether the alleged perpetrator is a national of a non-member state. Regarding the United States' critique of the Palestinian investigation, because Palestine is a State Party, the Court holds legal authority to investigate crimes committed there. In the case of Russia, Ukraine’s formal acceptance of ICC jurisdiction empowers the Court to investigate crimes committed on its territory.

In both instances, the Court does not bypass domestic legal systems. Rather, ongoing conflict has prevented Palestine and Ukraine from conducting these investigations themselves, justifying ICC intervention under the principle of complementarity provided in Article 17.

Beyond jurisdictional challenges, the United States and Russia frequently invoke the traditional doctrine of head-of-state and official immunity under customary international law, arguing that state leaders and senior government officials possess absolute immunity from the jurisdiction of international tribunals. This argument collides directly with Article 27 of the Rome Statute, which explicitly dictates the irrelevance of official capacity and establishes that personal or functional immunities cannot prevent the Court from exercising its mandate. Although both non-member states claim this immunity shields their leadership, international legal doctrine establishes that territorial states like Ukraine and Palestine can lawfully delegate their inherent competence to investigate atrocity crimes to the ICC, allowing the tribunal to step into the shoes of the territorial state. Consequently, by weaponising traditional concepts of state immunity, the U.S. and Russia attempt to protect high-ranking figures from accountability, highlighting a deeply contested fault line over whether international tribunals can lawfully supersede sovereign protections for nationals of non-party states.

Governance Crises & Internal Misconduct

On July 24, for the first time in the history of the ICC, the Assembly of States Parties (ASP) voted to remove Karim Khan from his position as Prosecutor of the ICC for serious misconduct and breach of duty. This was the result of a prolonged investigation into the Prosecutor that had begun two years earlier. In May 2024, allegations of sexual misconduct against Khan reached the Independent Oversight Mechanism (IOM). The IOM did not open an official investigation at the time because the alleged victim declined to present a formal complaint. In October 2024, anonymous social media accounts circulated details of the claims and identified the alleged victim. Later that month, Khan requested that the IOM open an investigation into the misconduct, which he claimed was part of a disinformation campaign against his office.

The ASP then commissioned an external investigation by the United Nations Office of Internal Oversight Services (OIOS) to ensure that the inquiry was conducted with a victim-centred approach and full impartiality. In May 2025, Khan took a temporary leave of absence while the investigation continued, leaving the two deputy prosecutors to assume leadership of the Office of the Prosecutor (OTP). After more than a year of investigation, the OIOS submitted a 150-page report to the ASP President, who referred it to the Bureau of the ASP. The report found that there was evidence supporting the allegations of misconduct.

In March 2026, the process entered a new phase when the ASP Bureau submitted the OIOS report to an ad hoc panel of three independent judges: Justice Leona Theron of South Africa’s Constitutional Court, Judge Paul Lemmens of Belgium, and Sir Seymour Panton of Jamaica. The panel was tasked with reviewing whether the facts established by the OIOS met the legal threshold for misconduct or breach of duty under the Court's legal framework. After reviewing the OIOS materials, the judicial panel unanimously concluded that the established facts and evidence did not establish misconduct or a breach of duty. However, the Bureau disagreed with the judicial panel's advisory opinion and decided that the material required further examination. In June 2026, the Bureau determined that Khan had committed serious misconduct, suspended him, and referred the decision to the plenary, which ultimately voted to remove him from office during a special session on July 24.

Fragmented institutional design

The removal of Khan highlights procedural gaps within the ICC’s existing framework for removing the Prosecutor. This is predictable since the OTP was originally designed with extensive independent powers to prosecute the most serious crimes without relying on external authorisation (Art. 42). The Prosecutor was intended to be an official holding the highest level of responsibility, making a removal scenario something the Court's framers scarcely envisioned. Thus, it is not that Prosecutor Khan was granted excessive discretionary powers in comparison to his predecessors.

To date, the debate surrounding Khan's removal has been primarily framed around whether the evidence established sexual misconduct. However, what is truly problematic from a rule-of-law perspective is the lack of an institutional structure to adjudicate these types of allegations without political interference.

The ICC’s disciplinary framework features a fragmented institutional design where the investigative stage is increasingly formalised, while the final decision-making remains unstructured. This imbalance is evident in the division of competences, with Article 46 authorising the ASP to remove officials, while Article 47 and Rule 30 grant the Bureau lesser disciplinary powers. Essentially, the legal framework fails to properly bridge these phases. Neither the Rome Statute nor the Rules of Procedure and Evidence (RPE) specifies how investigative findings translate into legal outcomes. Therefore, in this case, the fact-finding record compiled by the OIOS was handed back to the Bureau and the ASP without clear evaluative standards. As a result, the ad hoc panel was left to navigate complex questions, such as how to apply rigorous standards like beyond a reasonable doubt to a written investigative record compiled without witness testimony. This institutional void forces the ASP to rely on ad hoc workarounds, such as appointing an external panel of judges to assist the Bureau. Ultimately, this highlights a design failure: the legal framework does not establish a procedure to connect fact-finding with definitive legal consequences.

Another problematic aspect is the implicit premise that the Bureau and the ASP, as political bodies composed of diplomats, could outperform professional legal experts. The judges on the ad hoc panel were naturally far better positioned to evaluate evidentiary thresholds and make rigorous factual findings. It is paradoxical that these political organs disregarded the advice of the external judicial panel, despite having explicitly requested its involvement. In doing so, they assumed quasi-judicial functions, including the assessment of evidence, legal characterisation of conduct, and deciding an elected official’s tenure. This demonstrates a fundamental lack of procedural coherence and undermines the perceived impartiality of the political organs.

In addition, the investigation against Khan did not occur in isolation; it unfolded amidst broader geopolitical pressure on the ICC. The proceedings took place in the midst of U.S. sanctions, an explicit campaign to dismantle the Court, and a wave of withdrawal threats from member states. Concurrently, several states began questioning the legality of the OTP's arrest warrants, culminating in Israel’s official request for the ICC to withdraw its warrants against Netanyahu and former Defence Minister Gallant. In this high-pressure context, the risk of politicisation cannot be ignored given that the ASP and the Bureau are political bodies. This geopolitical climate exposes a critical vulnerability in the ICC’s prosecutorial oversight mechanisms, highlighting the urgent need to protect institutional integrity. Hence, the preservation of the Court's legitimacy requires accountability frameworks entirely insulated from political interference.

State Withdrawals and Selective Justice

Recently, the ICC has received a wave of withdrawal notifications from member states. In just two months, five countries announced their departure from the Rome Statute: Mali, Burkina Faso, Niger, Venezuela, and Chad. Under Article 127, these exits will take effect one year after formal notification.

Some of these announcements were largely anticipated. The Alliance of Sahel States (Mali, Niger, and Burkina Faso) first announced its attempt to leave in September 2025. However, it waited until June 2026 to submit official notice to UN Secretary-General António Guterres. Venezuela followed on 24 July, submitting its formal notice to the UN. Just three days later, Chad submitted its notice as well. According to the Chadian Foreign Ministry's website, this step followed a direct request from the United States.

The Sahelian states justified their withdrawal, mentioning that the ICC’s jurisdiction “has transformed into an instrument of neo-colonial repression in the hands of imperialism, thereby becoming the global example of selective justice”. Likewise, Venezuela and Chad accompanied their announcements with sharp criticism of the Court. They accused the ICC of disproportionately targeting African and Latin American countries, thereby reflecting an institutional bias against the Global South. Such arguments mirror a rhetoric long voiced by the African Union and major non-party powers like the United States and Russia.

While allegations of anti-African bias are widespread, they remain largely unfounded. Factually, the majority of situations and trials before the Court since its inception have involved African nations. However, most of these cases originated from voluntary self-referrals by African governments seeking international assistance to prosecute grave crimes committed on their territories. For instance, the situations in Uganda, the Democratic Republic of the Congo, Mali, Côte d’Ivoire, and the Central African Republic were all referred directly by their respective governments; in contrast, those in Darfur and Libya came from the UN Security Council. Furthermore, the ICC acknowledges regional imbalances in its docket, but attributes them to cooperation limitations rather than structural bias. This is reflected in the Court's expanded focus on situations in Ukraine, Georgia, Myanmar, and the Philippines.

Defenders of the Court highlight that many docket situations originated from voluntary state self-referrals. Yet, legal scholars caution that this mechanism introduces severe political distortions. Empirical analyses show that incumbent governments frequently leverage self-referrals and international arrest warrants. Regimes use these tools to marginalise political opponents and exert coercive pressure on rebel groups to force compliance or structure peace deals on state-preferred terms. By directing international scrutiny exclusively at external adversaries, this dynamic strategically protects state security forces from independent accountability.

Another essential consideration is the principle of complementarity under Article 17 of the Rome Statute. The ICC was established to address impunity for the world’s most serious crimes, but only when domestic courts are unwilling or unable to prosecute. In other words, the ICC intervenes solely when national judicial mechanisms fail. This ensures that primary prosecutorial authority rests with the locus delicti, the sovereign state on whose territory the offences occurred. Beyond trial deferral, respect for national sovereignty is built into the very structure of the Statute. Rather than operating as an arbitrary Court, the system relies on state consent, allowing governments to exercise their sovereignty when choosing to accede to the treaty under Article 125, accept ad hoc jurisdiction under Article 12(3), or initiate formal withdrawal under Article 127.

Although political contexts vary across jurisdictions, scholars frequently identify that a strong correlation exists between state withdrawals from the ICC and weak domestic rule of law, often characterised by authoritarian governance or compromised judicial systems. For instance, in 2018, the Philippines withdrew under President Rodrigo Duterte’s administration as it faced intense international scrutiny and impending investigations into extrajudicial killings. Similarly, Burundi’s exit from the ICC in 2017 occurred amid a severe domestic political crisis, serving as a tactic by the government to block international oversight. Within these contexts, state withdrawal can function as a strategic buffer to evade accountability.

Nevertheless, a notice of withdrawal does not serve as an immediate escape hatch from accountability. Under Article 127, withdrawal takes effect one year after formal notification to the UN Secretary-General and does not discharge states from obligations incurred while party to the Rome Statute. Exit notifications, specifically, neither stop ongoing investigations nor relieve states of their duty to cooperate during active proceedings. Accordingly, states remain legally bound by their statutory obligations for twelve months post-notification, preventing withdrawal from being weaponised as a shortcut to impunity.

While withdrawals represent an exercise of state sovereignty that signals genuine dissatisfaction and institutional mistrust, they also serve a more strategic purpose. In many instances, threats of withdrawal are weaponised by major powers as instruments of geopolitical coercion. Nevertheless, the Court cannot compromise its prosecutorial standards to appease departing or hostile states, as sacrificing treaty integrity inflicts far greater damage on the institution than state withdrawals themselves. Fundamentally, structural reform is imperative to fortify state cooperation and protect the ICC's core mandate of global accountability.

Confronted with political interference, external intimidation, and the unprecedented removal of its prosecutor, the ICC is under severe pressure, but it is far from broken. In fact, these trials highlight an institution under intense stress precisely because it is doing what it was designed to do: challenging impunity among powerful actors. Rather than signaling a decline, the capacity of States Parties to navigate such turbulence demonstrates that the system is capable of self-correction. Thus, protecting the ICC from ongoing geopolitical coercion requires moving past crisis management to adopt concrete institutional shields.

Institutional Countermeasures to Geopolitical Coercion

To protect the Court's statutory mandate from external pressure, States Parties must deploy concrete institutional countermeasures. The following framework outlines actionable solutions designed to reinforce the Rome Statute while insulating the Court from political pressure.

Beyond Diplomacy: Activating the EU Blocking Statute

The primary legal defense to shield the ICC from unlawful U.S. sanctions is the activation of the EU Blocking Statute (Council Regulation (EC) No 2271/96). By amending the regulation’s annex, the European Union would legally prohibit EU-based banks and commercial operators from complying with extraterritorial foreign penalties, finally ending the current regulatory limbo.

Although critics often point out that blocking statutes have historically struggled with enforcement and private-sector compliance, it remains the most viable legal defence since it utilises an established framework rather than requiring new legislation. The European Parliament has repeatedly promoted this measure through urgent resolutions to fulfil the EU's formal 2006 cooperation commitments with the ICC, the European Commission still remains hesitant. The Commission considers diplomatic outreach the most effective solution for this matter, leaving Court’s judges and officials completely unprotected. Given the intensity of the U.S. campaign to dismantle the ICC, informal diplomacy lacks the binding force required to deter external coercion. Furthermore, U.S. economic sanctions constitute an attack on the Court’s judges' human rights; in consequence, activating the blocking statute would translate Europe's human rights rhetoric into enforceable legal protection.

Internal Governance and Ethical Oversight

Under the current framework, Articles 46 and 47 alongside Rule 30 of the RPE grant ultimate disciplinary and removal powers to the Bureau and the ASP. To mitigate this vulnerability, the ICC should replace ad-hoc political adjudication with a permanent judicial or quasi-judicial disciplinary board to evaluate high-level misconduct using objective legal standards.

Currently, Rule 26 governs initial complaint handling by the IOM, but the legal framework provides no bridge to translate investigative findings into definitive legal outcomes or established standards of proof. A reform of the Rome Statute and RPE is necessary to establish explicit evidentiary thresholds and prevent political bodies from arbitrarily overriding expert judicial panel findings.

Finally, Article 42 regulates the election of the Prosecutor by the ASP based on broad criteria requiring "high moral character," yet it lacks structured and proactive screening. During the nomination phase, the ICC must establish a mandatory, independent vetting mechanism to conduct thorough background checks and confidential evaluations. Introducing this screening before candidates take office safeguards the integrity of the OTP at the nomination stage.

Operationalising complementarity during state withdrawals

Because the ICC operates on complementarity, it intervenes only when national systems are genuinely unable or unwilling to prosecute. Evaluating a state's actual capacity to prosecute is essential, particularly during obstructive withdrawals. In cases where a state leverages Article 127 and its one-year transition period to run out the clock and shield perpetrators, the OTP can bypass this blockade through a dual operational approach.

First, the OTP should autonomously integrate public archives from independent sources like UN fact-finding missions and regional monitoring bodies such as the IACHR. Rather than relying on uncooperative national authorities, these vetted dossiers provide the objective baseline needed to penetrate the legal black box of sham domestic proceedings, allowing prosecutors to verify whether a country is genuinely willing to prosecute or merely masking impunity.

Second, anchoring complementarity assessments to these external reports and their universal criteria directly addresses persistent accusations of political bias. By replacing subjective prosecutorial discretion with a standardised baseline applied across regions, the Court would increase its ability to identify bad-faith trials wherever they occur. This consistency ensures interventions are driven by verifiable systemic judicial failure rather than ad hoc geopolitical choices, thereby shielding the ICC's admissibility decisions from critiques of selective enforcement.

Conclusion

At this juncture, the structural tension confronting the ICC does not mean the system is broken; instead, it is the inevitable price of challenging major state powers. Even so, moral authority alone cannot shield the Court from economic warfare and political pressure. To navigate this increasingly hostile geopolitical landscape and strengthen its institutional capacity, States Parties must move from passive endurance to proactive defense. Thus, activating legal safeguards, establishing independent ethical oversight, and building permanent regional partnerships have become existential imperatives rather than optional measures. By implementing these reforms, States Parties can reinforce the Court's resilience and prove that global accountability is a functional reality, not an unattainable ideal.