Recap: Can the ICC Survive?

Can the ICC Survive_Updated

Ngofeen Mputubwele: [00:00:00] In late January of 2025, we did an episode about the ICC, the International Criminal Court. Donald Trump had just been inaugurated. He had sanctioned ICC prosecutors during his first term and gave every indication that he would do it again in his second. In early 2025, we wanted to know what exactly is the ICC and where did it come from?

Would it survive 2025? It did. The ICC is still kicking. And after you listen to the episode, I'm gonna give you a little update on what's happened since we first posted it. 

Can you just list for me the four crimes? 

Richard Dicker: Genocide, crimes against humanity, war crimes, and the crime of aggression. [00:01:00] 

Ngofeen Mputubwele: When the most ghastly human rights crimes happen around the world, there's one body that we hear about a lot, the International Criminal Court.

Archival: There have been tens of thousands of Israeli military strikes in the Gaza War. One this October stands out. Israel hit a five-story building housing an extended family of well over 100 people. 

The Russian president, Vladimir Putin, is now a wanted man after the International Criminal Court formally issued a warrant for his arrest over the war in Ukraine.

ICC prosecutors issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant over Israel's military operations in Gaza. 

The chamber pronounces the following individual sentences. 

Judges at the International Criminal Court sentenced Al Hassan to 10 years in prison for war crimes.

"Not enough," says those who have survived his form of justice in Timbuktu.[00:02:00] 

Ngofeen Mputubwele: One of the benefits of being close to Human Rights Watch is that I can talk to people who know about the institution, not just theoretically but in practice, which is how I met Richard Dicker. 

Richard Dicker: Well, I'm an old guy. 

Ngofeen Mputubwele: The founder of the International Justice Program at Human Rights Watch. Richard Dicker has seen things.

Richard Dicker: I dropped out of college- Okay ... uh, and then spent, uh, more than 10 years as a labor and community organizer in inner city Detroit. 

Ngofeen Mputubwele: Do not let his mild manner fool you. With every pause, Richard chooses his words with precision. These words have taken him to sit and chat with a president, to the carpeted offices of US senators and secretaries of defense, and the halls of the United Nations.

[00:03:00] He is the one in this episode who's going to help us understand the ICC and what the world considers the most serious human rights crimes, those four crimes that we started with. 

Richard Dicker: Each one of those are defined in excruciating detail. Each one of them are composed of various elements that the prosecutor has got to prove.

For example, crimes against humanity, murder on a widespread or systematic basis carried out against a civilian population as a result of a state or organization policy You've got the crime against humanity of [00:04:00] murder, and murder has its own particular elements. You've got the crime against humanity of torture.

Ngofeen Mputubwele: Mm-hmm. 

Richard Dicker: And torture has its particular elements that the prosecutor must successfully prove to even get an arrest warrant issued, let alone a conviction at trial. 

Ngofeen Mputubwele: Here, now, in early 2025, a very important thing is happening in the US which affects the ICC. The bill is passed. 

Archival: The US House of Representatives has voted to sanction the International Criminal Court.

America is passing this law because a kangaroo court is seeking to arrest the prime minister of our great ally, Israel. What the ICC is doing with their arrest warrants is legitimizing the false accusations of [00:05:00] Israeli war crimes. 

Ngofeen Mputubwele: The US Congress is setting up a system that would allow the government to freeze assets and place travel bans on ICC officials.

Can you help me understand, um- 

Richard Dicker: This train is going off the, the rails come January 20th- 

Ngofeen Mputubwele: Hmm ... 

Richard Dicker: because the tracks are gonna collapse. 

Ngofeen Mputubwele: But it's not just the US. Some countries and political figures around the world have laid accusations at the court's feet. For instance, a court in Europe that prosecutes people in Africa.

Wow, that sounds pretty fair. Which, legitimate criticism. Countries have taken pretty particular actions. In the last two years, Russia issued arrest warrants for some of the ICC's judges and prosecutors and criminalized cooperation with the court after the judges in The Hague issued an arrest warrant for President Vladimir Putin for alleged crimes in Ukraine.

[00:06:00] Israel's parliament has passed a law criminalizing cooperation with the ICC. 

Archival: The ICC said it noted the bill with concern. In a statement to Reuters, the ICC said, quote, "The Court firmly condemns any and all actions intended to threaten the Court and its officials, undermine its judicial independence and its mandate, and deprive millions of victims of international atrocities across the world of justice and hope."

In November, ICC judges said there were reasonable grounds to believe Netanyahu and Gallant were criminally responsible for acts including murder, persecution, and starvation as a weapon of war, as part of what the court called a, quote, "widespread and systematic attack against the civilian population of Gaza."

Israel has rejected the jurisdiction of the Hague-based court and denies war crimes in Gaza. The court also issued- 

Ngofeen Mputubwele: There's a real conflict happening. That's why we got to try to understand the ICC, like how it came to be, why it's so controversial, and why it affects everything that we're seeing in the news all the time when it comes to the world's most serious [00:07:00] crimes.

This is Rights & Wrongs, a podcast from Human Rights Watch. I'm Ngofeen Mputubwele. I'm a writer, lawyer, and radio producer. Human Rights Watch asked me to look at the human rights hotspots around the world through the eyes and the ears of the people on the front lines of history. On this episode, the ICC

The International Criminal Court is in the Netherlands in a city called The Hague. The ICC is not a court that investigates anything and everything, obviously. So first off, whose cases does it hear and preside over? The ICC does not cover disputes between countries. That's the ICJ, the International Court of Justice.

That's the court where South Africa sued Israel alleging genocide in Gaza. Both courts, [00:08:00] ICC, ICJ, are in The Hague, so they often get confused. But the ICC is not for disputes at all. It is a prosecutor filing criminal charges against criminal defendants. Okay, so then what kinds of charges, what kinds of cases does the court cover?

It's those four crimes, crimes against humanity, genocide, war crimes, aggression, all of which are very meticulously defined. For instance, genocide means something very specific. Genocide is acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. These are the legal definitions that, like, the vast majority of countries in the world have agreed upon in a treaty.

So the ICC is actually pretty young. It's just over 20 years [00:09:00] old. And for the last 20-odd years, the ICC has been working away at prosecuting these four crimes. Richard Dicker was there in the early to mid-'90s. 

Richard Dicker: These discussions would take place in these huge UN conference rooms- 

Ngofeen Mputubwele: Mm ... you know, 

Richard Dicker: with just gazillions of people speaking sometimes in six different languages.

Mm-hmm. And these were overwhelmingly lawyers. And the detail and terminology was like ancient Greek to me. 

Ngofeen Mputubwele: Do you remember any of the words that would go by and you'd be like, "What are they talking about?" 

Richard Dicker: Yeah. Uh, things like, uh, proprio moto, command responsibility, individual criminal liability, and the detail and the precision [00:10:00] of the back-and-forth discussion over draft Article 81, Paragraph 6, small Roman numeral three.

I, yeah, I had gone to law school- 

Ngofeen Mputubwele: Mm-hmm ... 

Richard Dicker: but this was a whole other universe- 

Ngofeen Mputubwele: Mm ... 

Richard Dicker: for me. 

Ngofeen Mputubwele: What was the thing that caused- The decision of like, okay, we should start drafting a treaty for the ICC. The answer to this question honestly is some of the gravest human rights violations imaginable, uh, in the '90s.

And there's this moment in the interview with Richard where, um, I'm asking him sort of about being at the signing of the treaty in Rome. Uh, I just try to embody this question which I have, which is like, okay, I understand that this is an institution, but like before it existed as an institution, it wasn't around that long, so like before it existed, why would you have said that this thing matters?

And I, [00:11:00] I, I want to understand better the answer to that question. Pretend that I am a colleague of yours when you're in Rome. 

Richard Dicker: Okay.

Ngofeen Mputubwele: Um, I don't get why this matters. Like you seem really excited about this. Yeah. But I don't, I don't quite get it. Like we have the UN. Richard, why are you so ... You seem like really into this.

Yeah. Why are you so fired up about it? 

Richard Dicker: Well, first let's talk about very recent events. 

Archival: A hundred-day killing spree that took one million lives. 

Richard Dicker: What occurred in the former Yugoslavia and Rwanda. Mm-hmm. I mean, the most serious crimes that exist committed against civilians on the basis of their nationality, ethnicity, religious belief, whole villages slaughtered, women kept as sex slaves for the [00:12:00] prevailing military force of the moment, ethnic cleansing, which was movement by force of whole communities of Bosnian Muslims out of their homes and communities where they had lived for hundreds of years.

I mean, these were ugly, ugly things that were being done, and the news media covered it. 

Archival: Mm-hmm. 

Richard Dicker: We didn't have cell phones back then, for sure, but it was on the television news, the scenes of concentration camp-like situations in 1992. Uh, I mean, my God, in Europe- Mm ... no less, and then followed almost immediately by genocide in Rwanda.

Ngofeen Mputubwele: Mm-hmm. 

Richard Dicker: I would say this is [00:13:00] important because even today, these kinds of crimes are being committed against civilian populations being slaughtered. There needs to be some permanent standing international court, okay? 

Ngofeen Mputubwele: Mm-hmm. 

Richard Dicker: That's why I see this as, as being so important. Horrors were unfolding in Sierra Leone.

Ngofeen Mputubwele: Mm-hmm. 

Richard Dicker: Horrors of the similar type in East Timor. A few years later, ethnic cleansing against Kosovar Albanians. The victims of these crimes need to be honored And determination of guilt or innocence needs to be made by a court of law in the case of those accused of carrying out genocide, [00:14:00] crimes against humanity, and war crimes.

Ngofeen Mputubwele: To respond to Yugoslavia, to respond to Rwanda, the UN creates, um, a set of temporary international criminal tribunals. 

Richard Dicker: For the first time ever in 45 years, an international criminal tribunal- Mm ... that would address the most serious international crimes, and I'm talking genocide, crimes against humanity, and war crimes.

Ngofeen Mputubwele: By 45 years, Richard means this hadn't happened since World War II, since Nuremberg and Tokyo. And after they create these ad hoc temporary international tribunals, criminal tribunals, then they're like, "Okay, we can't just be creating international criminal tribunals all the time. We gotta create something permanent, something fixed."

Richard Dicker: We need something with broader jurisdiction, broader authority, permanent, not temporary as [00:15:00] the two tribunals were.

Ngofeen Mputubwele: Were you at any of the conferences? Like, were you at the conference? 

Richard Dicker: I, I was at the conference in Rome from before the first gavel banged down on the table- Mm-hmm ... to the very end, and I considered it really the high point of my professional experience, and I was hardly alone in that feeling.

Archival: Adopted. 

Perfect Worldwide created an international treaty in 1998. The countries ratifying the treaty started to grow, and it took effect in 2002, officially establishing the International Criminal Court, or ICC. 

Ngofeen Mputubwele: The start of the ICC was a very, very big deal. 

Archival: The court is unique in that it was created by a treaty and not by the United Nations, [00:16:00] which it cooperates with but remains independent from.

Ngofeen Mputubwele: Why was the idea of an ICC controversial? 

Richard Dicker: Well,

Ngofeen Mputubwele: now this is where the ICC's history connects to its present. The US Congress, Russia, debates over whether Netanyahu as a wanted man can visit Europe. It connects in this way. From the start, the ICC was controversial precisely because of the job it was being asked to do.

The controversy isn't just a little logistical bump in the story of the court that I should skip. It is the story. The initial controversy sows the seeds of leaders like Donald Trump and others', um, skepticism of the institution. 

Richard Dicker: roughly three camps. 

Ngofeen Mputubwele: In a nutshell, there were three different positions.

Camp one. 

Richard Dicker: interest and support from all those states that had recently transitioned from dictatorship to democracy and had dealt with some [00:17:00] of these very same crimes in their national courts. For example, in Argentina- Yeah ... delegates were fully on board and enthusiastic. 

Ngofeen Mputubwele: Camp two. 

Richard Dicker: There were mixed feelings, frankly, from some of the most powerful Western states.

T- I include the United States, United Kingdom, and France. Uh, yeah, they were supportive of it, but They wanted to retain control over it. Hmm. They wanted to be able to turn this new court on and off as if it were a light switch. 

Ngofeen Mputubwele: Camp three. 

Richard Dicker: India, Saudi Arabia, Pakistan, Iran, countries with repressive rule did not warm up to the [00:18:00] idea that there would be a permanent International Criminal Court that theoretically even could have authority over some of their officials for war crimes, crimes against humanity.

Ngofeen Mputubwele: In fact, 120 countries signed, 21 abstentions, seven nos. The United States signed but never ratified the ICC treaty. Why not? 

Richard Dicker: That all has to do, I submit, with this deep, deep notion of American exceptionalism. 

Ngofeen Mputubwele: Yeah. 

Richard Dicker: Something to the tune of we are the greatest country in the world. And while there might be a need for an International Criminal Court, and in fact there is, we have to stand above it or apart from it because any time there's a crisis anywhere in the world, [00:19:00] the national authorities often ask for US help in the form of US troops in keeping the peace.

So while the International Criminal Court may be appropriate for Brazil or Belgium, the United States, A, we don't need it. We're the greatest country in the world. We've got the best judicial system in the world, and we deploy troops all over the world, making ourselves and those troops into a pol- easy political target.

Ngofeen Mputubwele: And basically Richard tells me every administration has had its own approach to the court, but they've essentially all agreed on a sort of like distance or skepticism of the court to varying degrees. 

Richard Dicker: The US Secretary of Defense at that point, William Cohen, former Senator [00:20:00] of Maine, in early May 1998, Secretary Cohen said to me "Unless you can give me an ironclad guarantee that no US service member will ever appear before this court, I cannot recommend to the president that we, the United States Senate, should ratify whatever treaty comes out of the conference."

That was how clear the US demands were. 

Ngofeen Mputubwele: You see a similar thing happening, for instance, in Israel. 

Archival: The Trump administration has gone further, calling the ICC corrupt, ineffective, and biased. 

Ngofeen Mputubwele: Okay, so when we come back, what's happening with the court now? 

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Ngofeen Mputubwele: Can you tell me who you are? What, what is your name and what do you do at Human Rights Watch? 

Liz Evenson: Uh, I'm Liz, Liz Evensen, and I'm [00:22:00] the director of our International Justice Program. 

Ngofeen Mputubwele: So now it's time to talk to someone to understand what is the status quo with the ICC getting challenged, like, right now. What is happening right now, and how does it compare to other times when the ICC has been challenged?

Liz Evenson: So the US doesn't belong to the ICC, but over the life of the ICC, you know, it's had, like, ups and downs. Sometimes it's really supported the ICC, really actually even helped arrest two defendants, um, to make sure they ended up in The Hague, and sometimes it's gone on the offensive and really tried to prevent the Court in the first instance from even being created.

And then at different pain points, including today, we see efforts from US elected officials to try to really undermine and impede and make it impossible for the, for the Court to do its job. And the pain point for the US, um, has always been the prospect that the ICC could prosecute Americans or that the ICC could prosecute [00:23:00] allies, and right now that really boils down to, to Israel.

As you said, there's an, there's an arrest warrant for the, for the prime minister of Israel. This isn't the first time, unfortunately. The, the previous Trump administration also imposed sanctions against the ICC, partly over the prospect of, of prosecutions of, uh, of Israel and partly over the idea that the, the ICC prosecutor might go after Americans, uh, for torture in Afghanistan.

So what we're seeing now started last year already under the previous Congress, a move to put back in place, uh, sanctions that could be used against ICC officials, uh, who are involved in the investigation and prosecutions arising out of the, the Court's investigation in Palestine. They haven't happened yet.

The House has voted in favor of them. The Senate is expected to look at it, and it's possible that the president could also just act on his own to put these sanctions back in place. The idea there is to just, you know, put maximum pressure on the Court to get [00:24:00] it to back away from, you know, doing what it's really been set up to do, which is to make sure that there is a place for victims to turn, uh, when there, you know, there's no hope of justice, um, at home.

Ngofeen Mputubwele: I'm in New York and so I, I'm talking from the perspective of an, of an American, but it sounds like this idea of sanctioning the court or limiting the court's work is something that's beyond just the US. 

Liz Evenson: Right. So the ICC has one of the most difficult jobs, right? Like, it was set up to make sure that no one was above the law, and so that means that there are a lot of people out there with a lot of power who might have something to fear from accountability.

And so the court has seen different kinds of attacks. Uh, Russia, uh, has issued arrest warrants for, uh, ICC judges, for the ICC prosecutor. That's in retaliation for the fact that the ICC also has an arrest warrant against the, the Russian president. We've seen other kind of threats to criminalize cooperation with the court.

The US [00:25:00] sanctions are not, you know, alone in that, and the ICC is always gonna face these kinds of threats. But US sanctions are particularly powerful because of, you know, the US's influence and weight in the world. They pose in, in some ways a unique risk to the court, not just these individuals who might get sanctioned, but because there will be a concern on the part of, of others to work with the court on the fear that they themselves could end up, you know, being sanctioned or, you know, find themselves afoul of the US authority to enforce those sanctions.

So that's why they have this sort of unique possibility to really affect the work in ways that as much as the court has seen other threats and survived other threats, that these stand out, uh, so significantly. 

Ngofeen Mputubwele: With all these challenges stacked up against the ICC, here's the thing to remember. It's not supposed to be the court that's covering minutiae.

It doesn't do your hit-and-run or your break-in. It isn't even supposed to be the main place where cases of genocide are heard. 

Richard Dicker: [00:26:00] A court of last resort. Hmm. Okay? Which meant when these crimes happen in a country- 

Ngofeen Mputubwele: Genocide ... 

Richard Dicker: genocide, crimes against humanity, war crimes- 

Ngofeen Mputubwele: Mm-hmm ... 

Richard Dicker: when those crimes take place, it really is first and foremost the responsibility of the state in place to investigate and prosecute those deemed to be responsible.

Ngofeen Mputubwele: Mm-hmm. 

Richard Dicker: All right? Court of last resort, they don't just step in and start investigating and prosecuting. They only do that if the national authorities are unable or unwilling to do so. 

Ngofeen Mputubwele: To Richard Dicker, it is hugely important. The ICC, if that were to cease to function, what does the [00:27:00] world lose? 

Richard Dicker: The world loses the means of making operational, making meaningful the phrase, "Never again."

It loses the vehicle that the international community, two-thirds of states around the world, have created to hold in fair and impartial trials, those accused of these most serious crimes to account. So the means, the modality, the vehicle goes away. And along with that, any notion that in the year 2025 or 2026, [00:28:00] this community has values and standards that slaughter of civilians and rape as a weapon of war would not be tolerated.

It would be hard to make those assertions seriously and credibly with the ICC having been n- knocked off on account of big power politics by the incoming administration. 

Ngofeen Mputubwele: Do you think that the efforts to sanction the court, do you think that those sanctions would actually stop the ICC from doing what it does?

Liz Evenson: I think it's a risk that has to be taken with the absolute utmost seriousness, but I think it's a risk that can be overcome. So if the US [00:29:00] does go ahead and, and impose these sanctions, um, and I, I certainly hope that, that they won't. I, I, I hope they will realize that what's at stake here is a really fundamental value of justice and, and equality.

But if they do go ahead, the court has 125 countries that belong to it, you know, who have signed up to it. It's their court, and they have a responsibility to protect the court in terms of making sure that it can continue to do business, that it has the ability to do that. Um, and they can do that by speaking out against these sanctions.

They can do that by making clear that they will provide support that the US might, might withdraw. Yeah, I think the risk is real, but my hope, and I think, you know, I think that this is ideally what we're gonna see, is that the 125 countries from every part of the world are gonna come together and say, "Don't mess with our court."

Ngofeen Mputubwele: Okay. That was our episode, which came out January 2025. Since then, yes, [00:30:00] the Trump administration has imposed severe sanctions on the ICC, going so far as to sanction the entire court. As Liz Evensen had hoped, some ICC members have pushed back, but she also says so much more is needed. The recent US sanctions came just hours after one of its former judges, Navanethem Pillay, was awarded the Nobel Peace Prize for promoting international law In May of 2025, in March of 2025, the ICC issued an arrest warrant against Rodrigo Duterte, former president of the Philippines, for the crime against humanity of murder.

We did a whole episode about this with a Nobel laureate, Maria Ressa. Duterte's trial scheduled to start at the end of November. In August 2026, Human Rights Watch and three other human rights groups filed a lawsuit [00:31:00] in US federal court challenging the Trump administration sanctions on the ICC. Human Rights Watch says that the sanctions are a blatantly illegal attack on international justice and should be struck down.

Go to hrw.org to follow developments. Liz Avenson is the director of Human Rights Watch's International Justice Program. Richard Dicker is the founder of that program and Liz's former boss. The news clips in this episode were from NPR, ABC News, Al Jazeera, Reuters, PBS, and the ICC. You've been listening to Rights and Wrongs from Human Rights Watch.

This episode was produced by me and Curtis Fox. Our associate producer is Sophie Soloway. Thanks also to Ife Fatunase, Stacey Sullivan, and Anthony Gale. I'm Ngofeen Mputubwele. Talk to you again in two [00:32:00] weeks