The Case for Abolishing the International Criminal Court: Toward a Democratic and Accountable Global Justice Mechanism Under the United Nations

 By: Atty. Arnedo S. Valera

International  Law and Security Analyst

I. INTRODUCTION

The International Criminal Court (ICC), established under the Rome Statute in 2002, was envisioned as a beacon of global justice: an impartial and permanent tribunal to prosecute individuals for the most egregious crimes — genocide, war crimes, crimes against humanity, and aggression. Yet over two decades later, the ICC has become a deeply controversial and increasingly discredited institution — marred by accusations of political manipulation, double standards, selective prosecutions, and internal dysfunction.

The ICC has not only failed to gain the trust of the world's most powerful nations but has actively alienated them through its politicized actions and selective enforcement. Its arrest warrants are often ignored by states — including democratic and autocratic ones — revealing the Court’s lack of global enforceability. Cases against powerful leaders like Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu remain legally symbolic but practically unenforceable. Even former and sitting U.S. presidents have been shielded from ICC authority by law and policy.

This paper argues for the formal abolition of the ICC and the establishment of a new international accountability mechanism under the United Nations, grounded in democratic principles, equal state representation, and clear judicial accountability. We propose a tribunal where each UN member-state has one vote, and which ensures impartiality, due process, and the non-politicization of justice.

II. HISTORICAL OVERVIEW AND THE ROME STATUTE FRAMEWORK

The Rome Statute, adopted in 1998 and entered into force in 2002, created the ICC as a court of last resort — meant to complement, not supplant, national legal systems. It claimed universality and neutrality but was rejected from the outset by many of the world’s most powerful nations. These include:

• United States: Signed the Rome Statute under President Bill Clinton, but formally “unsigned” by President George W. Bush in 2002. The American Service-Members’ Protection Act authorized the use of force to prevent any U.S. citizen or official from being surrendered to the ICC. The law also restricts military aid to countries that ratify the Rome Statute unless they grant immunity to U.S. citizens.

• Russia: Withdrew its signature in 2016 after being criticized by the ICC for its annexation of Crimea. The Kremlin stated the ICC “failed to meet expectations and did not become truly independent.”

• China and India: Have consistently refused to sign or ratify the Rome Statute, citing sovereignty concerns, lack of accountability mechanisms, and fears of politicized prosecution.

• Philippines: Ratified the Rome Statute in 2011 but withdrew in 2019, citing foreign interference and violation of sovereign rights amid the investigation into its anti-drug campaign.

III. CRITICAL FAILURES AND POLITICIZATION OF THE ICC

A. Disproportionate Targeting of African and Developing States

Nearly all ICC investigations have been concentrated in Africa. The African Union has repeatedly denounced the Court as a “neocolonial instrument” manipulated by Western interests. Former AU Chair Hailemariam Desalegn called it a “race-hunting court.” Even leaders like Paul Kagame of Rwanda have condemned the ICC for targeting African leaders while ignoring war crimes by Western powers.

B. Politicization and Erosion of Judicial Integrity

The ICC has been used selectively — or more accurately, weaponized — to pursue political agendas:

• Kenya: The collapse of the ICC’s case against Uhuru Kenyatta and William Ruto due to weak evidence and witness intimidation revealed procedural flaws.

• Sudan: The issuance of an arrest warrant against Omar al-Bashir during ongoing peace negotiations sparked backlash for undermining fragile stability.

• Israel/Palestine: The 2024 ICC arrest warrant against Prime Minister Benjamin Netanyahu for alleged war crimes in Gaza has been outright rejected by Israel and many Western allies, including the U.S., which denounced it as “morally indefensible.” No steps have been taken to enforce it.

• Russia: An ICC arrest warrant against President Vladimir Putin for alleged war crimes in Ukraine has had no enforcement. Putin continues to travel freely in ICC member and non-member states, exposing the Court’s lack of actual power.

• United States: Despite ICC inquiries into U.S. actions in Afghanistan, the U.S. has aggressively pushed back. Under President Donald Trump, then-Secretary of State Mike Pompeo imposed economic sanctions and visa bans on ICC personnel in 2020. The Trump administration formally declared the ICC “a thoroughly broken and corrupted institution.”

C. Internal Dysfunction and Corruption

The ICC has spent over $2 billion and delivered fewer than a dozen convictions in 20+ years. The 2020 Independent Expert Review revealed:

• Lack of strategic vision

• Administrative inefficiency

• Ethical lapses, bullying, favoritism, and sexual harassment

• Poorly managed investigations and trials

The resignation of Judge Christoph Flügge in 2019 cited political pressure from NATO states and loss of judicial independence.

IV. CASE STUDY: THE PHILIPPINES — A SOVEREIGN NATION POLITICALLY TARGETED

The ICC's actions against the Philippines provide a clear illustration of jurisdictional overreach and politicization:

1. Violation of Complementarity and Sovereignty

Article 17 of the Rome Statute allows ICC action only when national courts are "unwilling or unable" to prosecute. But:

• The Philippine judiciary was fully functional and actively pursuing cases.

• Police reforms, disciplinary actions, and Senate inquiries were in place.

• The ICC’s action ignored these internal processes and usurped sovereign judicial authority.

2. Politically Motivated Expansion of “Crimes Against Humanity”

By labeling the Duterte administration's anti-drug policy as a "crime against humanity," the ICC extended its jurisdiction to:

• A non-war context

• A domestic law enforcement policy

• A democratically sanctioned national campaign

This opens the door to labeling any controversial domestic policy — from immigration crackdowns to counterinsurgency operations — as “crimes” prosecutable under international law.

3. Voluntary Surrender and Political Weaponization

Initial cooperation by the Philippine government (under a former Justice Secretary) in submitting communications was a political miscalculation. Though later reversed by the country’s withdrawal in 2019, the ICC has continued the investigation, violating the Philippines’ sovereign right to disengage from an international agreement.

4. The Only Nation Targeted for Anti-Drug Policy

Despite widespread extrajudicial killings in Latin America’s narco-wars and Asia’s tough anti-drug campaigns, only the Philippines faces an ICC investigation. This selective focus confirms a politically motivated agenda rather than a universal application of justice.

V. THE NON-ENFORCEMENT OF ICC WARRANTS: POWER OVER PRINCIPLE

The ICC’s legitimacy crisis is compounded by its inability to enforce its own warrants against powerful state leaders:

• Netanyahu (Israel): ICC arrest warrant in 2024 for Gaza bombings — non-enforced, widely rejected.

• Putin (Russia): ICC arrest warrant for Ukraine war crimes — ignored, Putin continues international travel.

• U.S. Presidents: Despite ICC inquiries, none have been held accountable under ICC jurisdiction.

• Trump Administration's ICC Sanctions: In 2020, the U.S. imposed asset freezes and visa bans on ICC officials under Executive Order 13928. The U.S. declared the ICC had “no jurisdiction” and was “illegitimate.”

These demonstrate a two-tiered system of justice: one for weak nations, another for powerful ones. The ICC cannot compel cooperation from major powers and thus cannot be called universal or impartial.

VI. A PROPOSAL FOR A NEW UN-BASED GLOBAL TRIBUNAL

We propose a Global Tribunal for Crimes Against Humanity (GTC) under the UN with these principles:

• One Nation, One Vote – All member-states participate equally in decision-making and judicial appointments.

• Respect for Sovereignty – Jurisdiction only when national systems collapse or are proven fraudulent.

• Transparency and Oversight – Judges and prosecutors nominated by states, confirmed by the UN General Assembly.

• Regional Partnerships – Empowerment of regional courts to address local crimes with international supervision.

• Strict Jurisdictional Limits – Crimes narrowly defined and politically neutral, avoiding expansion into domestic policies.

VII. A COURT NO LONGER FIT FOR PURPOSE

The ICC has lost credibility, failed to enforce its mandates, and become a tool for political manipulation. Rather than advancing justice, it has perpetuated inequity, impunity for powerful states, and disrespect for sovereignty.

The time has come to abolish the ICC and create a truly democratic, accountable, and enforceable global justice system. Under the United Nations, a new mechanism can serve as a shield for all — not a weapon wielded by a few.

References

• Rome Statute of the International Criminal Court (1998)

• American Service-Members' Protection Act (2002)

• Executive Order 13928 – Blocking Property of Certain Persons Associated With the ICC (2020)

• Independent Expert Review of the ICC (2020)

• Philippine Supreme Court, G.R. No. 238875 (2021)

• ICC arrest warrants: Netanyahu (2024), Putin (2023)

• Flügge, Christoph. (2019). Resignation Statement

• African Union Assembly Decisions on ICC (2013–2019)

• Statements from U.S. State Department and Israeli Government (2024)

Atty. Arnedo S. Valera is the executive director of the Global Migrant Heritage Foundation and managing attorney at Valera & Associates, a US immigration and anti-discrimination law firm for over 32 years. He holds a master’s degree in International Affairs and International Law and Human Rights from Columbia University and was trained at the International Institute of Human Rights in Strasbourg, France. He obtained his Bachelor of Laws from Ateneo de Manila University.  He is an AB-Philosophy Major at the University  of Santo Tomas ( UST). He is a professor at San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances.