On March 17, 2023, the International Criminal Court issued an arrest warrant against Vladimir Putin for "illegal deportation of children." As Russia found itself bogged down in Ukraine, it seemed conceivable that international justice might finally be able to make a firm stand to end war crimes. However, this was merely an illusion. In reality, it remains difficult for international organizations to judge political leaders responsible for such crimes, especially those from the West, despite the urgent need. Could it ever be conceivable for the Court to take on cases that have significantly disrupted or even damaged the international order?

THE CURRENT FAILURE OF THE INTERNATIONAL JUDICIAL SYSTEM

In its stride towards peace, in the aftermath of the Second World War, the international community attempted to engrave in the United Nations Charter its desire to end armed conflicts between states, which had twice in less than a century brought humanity to the brink of abomination and cruelty. It also equipped itself with tools to carry out its mission, that of maintaining peace at all costs under the guidance of its Security Council. Among these tools, the International Court of Justice (ICJ) was conceived to resolve disputes between states. However, it is distinct from criminal tribunals as it is "not competent to judge individual persons accused of war crimes or crimes against humanity. As it is not a penal jurisdiction, it does not have a prosecutor who can initiate prosecutions." In defense of state sovereignty, the ICJ cannot therefore take on a case that would encroach on the jurisdiction of a national court. It is even less able to judge a political leader suspected of having committed war crimes.

Faced with the horrors that marked the 20th century, the need became apparent. On July 17, 1998, the Rome Statute established the International Criminal Court, a judicial body specifically tasked with judging individuals. This international jurisdiction, also based in The Hague, Netherlands, comprises 123 member states and a prosecutor who can take on cases involving war crimes, crimes against humanity, genocide, and crimes of aggression. This body thus promised to judge and punish the physical perpetrators (not the states) of these crimes. However, after the treaty was signed, 31 states did not ratify it. Among them, the United States, Iran, Russia, Israel, India. China, for its part, did not even sign the treaty.

Officially, the United States does not oppose the Court but highlights the possibility that it might "encroach" on the mission of the Security Council, of which they are a permanent member. To put it simply, while Democratic administrations were somewhat inclined to engage with the Court without joining it, Republican administrations, on the contrary, have been particularly hostile. For instance, George W. Bush withdrew the United States' signature in May 2002, enacted a law allowing American nationals residing in a member state's territory to be exempt from the Court, and pressured Latin American states that might consider joining. This climate of threats was renewed under President Trump with the adoption of sanctions targeting ICC personnel.

In its December 31, 2000, declaration, Israel boasted of being "at the origin of the idea of an International Criminal Court" while expressing its "deep disappointment and regret that provisions designed to meet the political objectives of certain states had been inserted into the Statute." This refers to the inclusion of acts of colonization as war crimes. China did not sign the treaty, arguing, among other things, that such a Court would go against state sovereignty. Finally, Russia, having signed the Rome Statute at the last minute in 2000, withdrew its signature in 2016.

In truth, these countries are well aware of the risks they expose themselves to by ratifying the treaty. Because those responsible for the "international disorder" are often among their leaders. Multiple American interventions, some without the approval of the Security Council, have considerably destabilized many regions around the world, caused the death of millions of civilians, and encouraged international terrorism and forced migrations. Russia's imperial ambitions have led to a massive rearmament among its neighbors, uprooted and separated entire families. China imposes its law, through a dual economic and demographic power, on Asian countries regarding terrestrial and maritime zones it intends to defend, and sometimes even on its partners worldwide, or continues to violate human rights within its own population. Israel disregards the numerous resolutions condemning its actions in the Palestinian territories, invades, and bombs Lebanon or the West Bank under the pretext of security. There are no less than fifty resolutions calling on the Israeli state to respect international law. All these examples have either already profoundly transformed international relations or are about to do so. The failure to ratify the Rome Statute thus prevents the Court from prosecuting individuals who engage in large-scale operations that only undermine the already fragile agreements among the diplomacies of the great powers.

WESTERN IMPUNITY PARALYZING THE UNITED NATIONS

Regrettably, it is currently impossible to fully prosecute those responsible for war crimes. As a result, numerous criticisms have emerged regarding the ICC, particularly because it tends to focus on countries of the "Global South," especially Africa. Indeed, the vast majority of individuals tried by the Court are African. This is primarily because many African countries have ratified the Rome Statute, and also because Africa is a politically unstable continent.

However, the entire European Union has also ratified the statute. Yet, to this date, no European leader or former leader has been troubled by the ICC. Perhaps because Europe has lived in peace since the end of World War II ? In the realm of international relations, the scope is broad. The crime of aggression, in particular, remains very difficult to establish. In its official definition, it is "the use by a State of armed force against the sovereignty, territorial integrity or political independence of another State," an indictment established at the Nuremburg trials, which now represents the highest possible charge in international relations and the one with the strongest political dimension. Its creation was intended to limit as much as possible the Westphalian footprint that characterized state relations through the endless cycle of wars and peace treaties. In this context, is it inconceivable that Western leaders could be accused of such crimes?

Russia uses Libya as its favorite argument to legitimize its belligerent actions

The case of Libya in 2011 remains quite emblematic. While the Responsibility to Protect (R2P) could be incumbent upon the United Nations Security Council since 2005, resolution 1973 provided for the establishment of a no-fly zone open to all states, simply to protect the Libyan population after alarming threats from its leader Muammar Gaddafi. However, France under Nicolas Sarkozy and Great Britain under David Cameron greatly exceeded the rights granted by the resolution by bombing Gaddafi's forces, leading to his downfall. Barack Obama was furious, but this was nothing compared to the Russians and Chinese who felt deceived after abstaining. Following the Iraqi model, Libya became a failed state where militias clashed and terrorist groups proliferated, while Russia made it its favorite argument to legitimize its belligerent actions.

Shouldn't Western leaders who have conducted illegal raids on a sovereign country, leading to such destabilization, be held accountable by a Criminal Court?

This action, carried out under the nose of the Security Council, did not lead to any sanctions by the ICC against the French and British leaders. This is surprising. By not ratifying the Rome Statute, Americans directly protected their former leaders responsible for the chaos in Iraq (George W. Bush enjoys a peaceful retirement on his Texas ranch, while Colin Powell and Donald Rumsfeld ended their days untroubled by justice), but shouldn't Western leaders who are part of the ICC and have conducted illegal raids on a sovereign country, leading to such destabilization, be held accountable by a Criminal Court? In this context, it does not seem impossible to take on the Libyan case and judge the leaders who made such decisions. This is where the sense of impunity becomes fully apparent, and it seems easier to make Mohammed Bin Salman a pariah for his role in the assassination of Jamal Khashoggi than to condemn a former Western president for contributing to a regional transformation that has seriously damaged the international security architecture.

Western impunity is likely to be difficult for the leaders of countries more at risk of being troubled by the ICC to accept. This impunity also contributes to paralyzing the UN Security Council. With the power games continuously expanding since the end of the Cold War, the grip of the permanent members only increases tensions. While it is impossible to know if the indictment of leaders going against the UN Charter and leading to dramatic consequences would have a deterrent effect on future decisions, it could at least facilitate the adoption and implementation of some resolutions. However, today, the Council is no longer the guarantor of any dialogue or compromise, because each power that composes it plays only for its interest or that of its allies, or even against the interests of its own adversaries. In this regard, no one seems able to contest that, thanks to the American veto, the State of Israel, or the Syrian regime through the Russian veto, are almost permanent members of the Security Council.

While the UN still manages to stabilize explosive situations, it is now constantly weakened by those who wanted and created it. They fashioned it in their image and according to their will. Questioning it is now vital. This involves, among other things, the need to judge those who, by overstepping their rights, create chaos in multiple regions to serve their electoral interests.

THE CONSEQUENCES OF IMPUNITY ON INTERNATIONAL ORDER

For a long time, impunity was considered a "necessary evil" even within the United Nations, and amnesties and self-amnesties remained part of the political life of many states. Indeed, it was believed that impunity would facilitate democratic transitions or the withdrawal of militaries from the political spectrum. A kind of "permissive pragmatism" that made sense, for example, in a Latin America particularly plagued by military dictatorships. However, the impunity of the major powers has very different consequences for international order because it fosters a particular interest within a collective environment. Moreover, the creation of various international tribunals to judge crimes committed in the former Yugoslavia or Rwanda gradually invalidated this discourse and immediately strengthened international law

The lack of significant repercussions for these acts underscored the limits of the UN's authority and contributed to a widespread sense of injustice and imbalance in the application of international law principles

The impunity granted to certain leaders of global powers seriously undermines the legitimacy and effectiveness of international institutions, such as the UN and the International Criminal Court. When there are no judicial consequences for wrongful acts and international norms can be violated without fear of sanction, there is an erosion of trust in these institutions, compromising their role as guarantors of justice and global order. Worse still, it seems that the UN Security Council has sometimes become the opposite of what it was created for. Should unilateral use of force be permitted there? Normally, any recourse to force is not allowed without the consent of the Security Council. The US-led invasion of Iraq without its approval in 2003 not only questioned the legitimacy of military interventions on the international stage but also highlighted the impunity enjoyed by some major actors in the international system. The absence of significant repercussions for this act emphasized the UN's authority limits and contributed to a generalized sense of injustice and imbalance in the application of international law principles. This situation exacerbated skepticism about the ability of international institutions to act fairly and effectively, especially when it comes to holding major powers accountable for their actions.

The lack of prosecution for those responsible for war crimes and aggression, among other things, encourages other actors who patiently wait before resorting to force, thus perpetuating the cycle of violence and instability. Impunity can serve as a precedent, encouraging new aggressions in the absence of fear of sanctions. If September 11, 2001, marks the beginning of a new era, one in which the West can no longer shape the world at will, then its components have not been fully grasped. This is the difference with the power games, political support, and alliances that accompanied the Cold War. In the early years of the 21st century, Western leaders failed to grasp the evolution of the international game. While inequalities between "North and South" countries still largely exist, the latter are increasingly confident in their strengths, understand the ins and outs of global diplomacy, and no longer blindly align with the wealthiest, even if it may serve their short-term interests. They are aware of the difference in treatment by international justice and use past actions to justify reprehensible acts. Even today, the military intervention in Libya remains a turning point for international institutions, both for the lack of UN authority and for justifying attacks on the sovereignty of other countries. Vladimir Putin's desire to invade Ukraine also stems from this unpunished action.

Of course, it is said to be impossible for French, British, or American leaders to have any foresight into the medium or long-term consequences of their decisions. However, international law remains a solid foundation to prevent such acts. The fabrication of evidence for a country's invasion presented in the Security Council remaining unpunished encourages international disorder. Unfortunately, as we have seen, the only jurisdiction capable of judging and punishing the perpetrators of mass crimes is not recognized by all international actors, especially not by the primary concerned parties.

TOWARDS A REFORM OF INTERNATIONAL ORGANIZATIONS AND JUSTICE

In reality, it remains of course crucial to broaden the recognition and jurisdiction of the International Criminal Court. This would mean that more states ratify the Rome Statute and accept the ICC's jurisdiction over their territory, including for crimes of aggression. Alas, it is absolutely impossible to ensure that all states ratify the Statute. Moreover, with the alternation of parties that characterizes democracy, many leaders would quickly withdraw once elected. To ensure that political and military leaders are held accountable for their actions, the creation of a special tribunal or the integration of a new chamber within the ICC could be considered. This entity would be specifically tasked with judging crimes of aggression, thus filling a significant gap in the current international judicial system. However, without recognition, the contribution of this chamber would remain symbolic and primarily serve to feed the media. A kind of "communication justice" that cannot be ignored in the age of social media. Without being able to guarantee the conviction of the leaders involved, a specialized entity within the ICC could, under the auspices of the UN, have the right to communicate the results of its investigations and submit them to both the Security Council and the General Assembly as well as civil society.

It is primarily the establishment of a new multilateral legislative framework that becomes urgent. This is because international relations have evolved significantly since the end of the Cold War, and even more so since the end of World War II, but also and especially because the consequences for all states, including those that have benefited from near-total impunity for several decades, prove disastrous each time. It is important to focus on reforms that aim to increase, in the long term if necessary, the effectiveness of international justice by ensuring that no one, regardless of their status or the power of their country, stands above international laws. By strengthening the authority of the ICC and establishing clear mechanisms for judging crimes of aggression, the international judicial system could become a deterrent tool against violations of international law and contribute, if not to lasting peace, at least to preventing large-scale aggression.

THE IMPERATIVE OF JUSTICE FOR PEACE

International justice can no longer be perceived merely as a utopian ideal but as an essential pillar for establishing a more equitable and stable world order. It was, in 1945 (and officially still is), the primary role of the UN and its very foundation. Therefore, the ability to judge leaders responsible for international disorder remains crucial to prevent the repetition of abuses of power. The successful establishment of special tribunals has proven both the effectiveness and importance of justice in the process of reconciliation and healing for peoples. Nearly 80 years after the creation of the UN, it is time for a judicial body to evolve towards greater efficiency.

To overcome the challenges posed by impunity and the shortcomings of existing institutions, it is imperative that the international community acts in concert. This requires a renewed political will to rebuild the mechanisms of international justice and to commit firmly to respecting international law. The adoption of an international convention against impunity, modeled on the convention against torture, could be a significant step forward. Such a convention would compel states to prosecute or extradite individuals accused of serious international crimes, thereby strengthening the principle of universal justice.

This imperative requires serious avenues to be explored as soon as possible. Current conflicts may further delay the willingness for reform, and it is highly likely that nothing will be undertaken before peace negotiations, especially in Ukraine and the Middle East. Negotiations that are unlikely to occur this year for the Russo-Ukrainian conflict (not before the results of the European and American elections at least) and that should revolve around the issue of a two-state solution for the Israeli-Palestinian conflict, a solution that, in any case, seems doomed to failure.

Despite this, several reform paths must be initiated within international bodies, among which:

Universality of the ICC

Encourage more states to ratify the Rome Statute and accept the jurisdiction of the ICC, including those who are major players on the international stage but are currently not parties to the Rome Statute. Strengthen cooperation between member states and the ICC, particularly in terms of arresting and surrendering suspects.

Independence and impartiality

Ensure the total independence of the ICC's judges and prosecutors from political pressures, to guarantee fair judgments based solely on evidence.

Complementarity and international cooperation

Strengthen the principle of complementarity, which gives priority to national judicial systems to prosecute international crimes while providing the necessary international support to carry out these prosecutions. Improve international cooperation in terms of intelligence sharing and judicial assistance to facilitate investigations and prosecutions.

Reform the UN Security Council

Revise the rules of veto power within the Security Council to prevent crucial actions in the field of international justice from being blocked by the political interests of a few states. For example, a veto could only be authorized in exchange for concrete proposals to amend a resolution. Expand the P5: offer a permanent member seat to a country from Africa, Latin America, and Oceania.

Expansion of crime categories

Consider expanding the categories of crimes under the jurisdiction of the ICC, especially regarding the crime of aggression, specifying the conditions under which leaders can be held responsible for such acts (perjury, evidence fabrication, etc.).

Support mechanisms for victims

Strengthen support and reparations mechanisms for victims of international crimes, ensuring that justice takes into account their needs and rights.

Awareness and public engagement

Improve awareness and public engagement around the activities of the ICC and the principles of international justice to strengthen global support.

Communication of investigation reports

Provide free access to investigation reports written by the ICC.

Funding and resources

Ensure adequate and stable funding for the ICC and other international justice mechanisms, so they have the necessary resources to effectively fulfill their mandates.

These reforms aim to create a more robust international justice system capable of holding leaders accountable fairly and effectively while respecting state sovereignty and committing to a justice that is truly international and not influenced by politics or power. While the challenges facing international justice are significant, the need for reform and accountability is undeniable. Building a more just and peaceful world depends on the international community's ability to ensure that acts threatening global peace and security do not go unpunished. The pursuit of this vision requires not only solid legal mechanisms but also a continuous commitment to the principles of justice and international law.