“We will continue to carry out our mandate in order to fulfil the fundamental commitment forming the basis of the Rome Statute: that the lives of all human beings have equal value”

Karim A.A. Khan, ICC Prosecutor

The International Criminal Court (ICC) was established in 2002 to those responsible for the most serious crimes of concern to the international community. Yet, despite its mandate, the Court remains at the center of ongoing controversy. If the ICC plays such a crucial role in upholding international law, why do states resist its authority? Why do its decisions spark so much debate? This article explores the complexities of the ICC’s jurisdiction and the challenges it faces on the global stage.

The principle of complementarity and the ICC’s jurisdiction 

The ICC operates on the principle of complementarity, meaning it does not replace national judicial systems but intervenes only when a state is unwilling or unable to prosecute crimes itself. However, there is an important exception: when the United Nations Security Council (UNSC) refers a situation to the ICC (Article 13 of the Rome Statute). In such cases, the Court can claim jurisdiction even over non-member states, without their consent.

The 2022 Lisbon Conference on Complementarity emphasized that the ICC should not compete with national courts but rather support them in prosecuting international crimes. While the exact nature of this “positive complementarity” remains undefined, potential measures include sharing evidence, offering technical support, and providing legal training. This would position the ICC as both a mediator and a safeguard, ensuring fair trials while reinforcing national judicial capacities.

Yet, complementarity remains a double-edged sword. On the one hand, it legitimizes ICC intervention when national courts fail. On the other, it sparks accusations of judicial overreach, especially when states perceive the ICC as interfering with their sovereignty.

Case study: The Venezuela investigation

The ongoing case of Venezuela II exemplifies the ICC’s struggle to establish jurisdiction amid geopolitical tensions. In 2020, the Venezuelan government requested the ICC to investigate alleged crimes against humanity linked to U.S. sanctions imposed since 2014. While the ICC determined it could exercise territorial jurisdiction over crimes committed in Venezuela, it has yet to rule on whether unilateral sanctions qualify as an international crime.

The challenge lies in defining the legal framework:

• If unilateral sanctions are found to violate international law, the responsible state could face legal challenges in international courts like the International Court of Justice (ICJ), potential UN actions, ICC investigations if linked to crimes against humanity, or cases in regional or national courts, though enforcement remains uncertain.
• If the ICC recognizes sanctions as crimes against humanity, it would set a precedent in international criminal law.

Adding to the complexity of the matter is the ICC’s collaboration with Venezuelan authorities. While the ICC has expressed willingness to assist in judicial reforms, recent confidential agreements suggest the Court is also investigating the complicity of Venezuela’s judiciary in these crimes. In other words, striking a balance between ICC intervention and national sovereignty remains a pressing challenge.

Selective prosecution and political criticism

One of the most persistent criticisms of the ICC is its perceived selectivity in prosecution. Critics argue that the Court disproportionately targets individuals from weaker states, particularly African nations, while being hesitant to investigate crimes committed by powerful actors, such as NATO or Western states.

For instance, the ICC issued two arrest warrants for Sudanese President Omar al-Bashir, in 2009 and then 2010. Yet when Malawi and Chad – both Rome Statute signatories – refused to extradite him, the Court accused them of violating their obligations. This raises concerns about double standards: why does the ICC push smaller states to comply, while powerful ones ignore its rulings with little consequence?

A similar controversy surrounds the case against Kenyan President Uhuru Kenyatta. After post-election violence in 2010, the ICC launched an investigation, which continued even after Kenyatta became president. By 2023, the ICC dropped the case without securing any convictions, further fueling claims that its actions are politically driven rather than legally sound.

State resistance: the U.S., Brazil and the ICC’s challenges

The ICC’s authority is further undermined by direct opposition from major powers. In 2020, the United States imposed sanctions on ICC officials after the Court attempted to investigate alleged U.S. war crimes in Afghanistan. More recently, the U.S. fiercely condemned the ICC’s issuance of an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, with President Joe Biden calling it “outrageous” and asserting that “there is no equivalence – none – between Israel and Hamas.”

Meanwhile, Brazil’s official position questions the ICC’s ability to prosecute leaders of non-signatory states. In its 2023 legal observations, Brazil argued that state officials should retain immunity from ICC prosecution, particularly if their country has not ratified the Rome Statute. If this argument gains traction, it could severely weaken the ICC’s ability to prosecute state leaders, reducing its effectiveness even further.

The future of the ICC: reforms and strategic goals

The ICC’s challenges are not merely legal: they are deeply political. As states continue to resist its authority, the risk grows that the Court will be perceived as an instrument of selective justice rather than an impartial body upholding international law.

The ICC’s 2023-2025 Strategic Plan outlines key reforms aimed at strengthening its credibility, including:

• Expanding universal jurisdiction and cooperation between states.
• Increasing transparency and accountability in case selection.
• Improving evidence collection procedures to prevent politically motivated prosecutions.
• Prioritizing cases against lower-level perpetrators to secure convictions more efficiently.

For the ICC to succeed, it must balance legal integrity with political realities. A tribunal surrounded by hostile states cannot function effectively. It needs greater international support, clearer jurisdictional boundaries, and stronger enforcement mechanisms to fulfill its mandate.

Ultimately, the ICC’s future depends on whether it can restore confidence in its impartiality and convince the international community that it is a legal institution, not a political tool. Only then can it truly serve as a guarantor of justice and human rights protection on a global scale.

Sofiia Tuzhikova is a Master Student at the Kutafin Moscow State Law University, Moscow, Russia.

To quote this article or video, please use the following reference: Tuzhikova (2025), “Current challenges of the International Criminal Court Jurisdiction” https://crisesobservatory.es/current-challenges-of-the-international-criminal-courts-jurisdiction/

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