Assessment

The ICC is legally constituted as a court, but politically it operates as a quasi-sovereign institution: it claims the authority to determine the limits of its own jurisdiction, assess the adequacy of national justice systems, neutralize the immunities of senior officials, and retain certain powers after a state withdraws from the Rome Statute. At the same time, it has no demos of its own, no constitutional mandate from the citizens of the countries affected, no police force, no full system of checks and balances, and no uniform capacity to enforce its decisions.

The central question, therefore, is not whether combating war crimes is desirable. The United States, Israel, and the African Union do not reject the principle of accountability for international crimes; the dispute concerns who has the authority to adjudicate, on the basis of whose consent, under what system of accountability, and why the same regime is in practice enforceable against weaker states yet encounters the power-based immunity of major powers. The official U.S. position has consistently rejected ICC jurisdiction over nationals of non-party states absent their consent or a decision of the UN Security Council.

From this perspective, the ICC is not a neutral “court of last resort,” but a mechanism for removing part of sovereign criminal jurisdiction from the state. It does not seize territory or replace a government, but it claims the right of final external assessment: whether a state investigated a case genuinely enough, whether its leader retains immunity, who may delegate territorial jurisdiction, and when the consequences of ratification come to an end.

Burke Index: 486 out of 700 points, or 69.4% of the maximum level of sovereign pressure. The greatest threat is registered in the political, legal-cognitive, informational, and military-governance dimensions. The economic and technological channels play supporting roles.

Central thesis: the ICC transforms the treaty-based delegation of limited powers into a claim to autonomous international authority, while recasting a state’s non-consent from an exercise of sovereignty into presumed evasion of justice.

What the Analysis Demonstrates

The claim that “the ICC is not a court” would be legally inaccurate: the Rome Statute did establish a permanent international criminal court, and States Parties accepted its jurisdiction. The stronger and more defensible formulation is different: the ICC is a court in form, but a quasi-sovereign political-legal institution in effect.

An ordinary national court is embedded in a constitutional order: its jurisdiction is defined by the constitution and legislation, its decisions are enforced by the state’s own institutions, and its judges operate within a unified framework of public accountability. The ICC is detached from any single sovereign. It creates binding legal consequences while shifting enforcement, diplomatic costs, security risks, and responsibility for arrests onto national states.

It is precisely this gap between the authority to make decisions and the absence of responsibility for enforcing them that makes it possible to characterize the ICC as a quasi-judicial superstructure above sovereign systems rather than as a full-fledged world criminal court.

The Foundational Defect

The problem did not arise later because a sound treaty was “misapplied.” The conflict was built into the design of the Rome Statute from the moment of its adoption. In 1998, the Statute was adopted by 120 votes to 7, with 21 abstentions; the vote was not recorded by name. The United States and Israel publicly confirmed that they had voted against it.

The U.S. delegation proposed limiting jurisdiction over nationals of non-party states to cases in which the state of nationality itself had accepted that jurisdiction. The proposal failed. The United States immediately stated that it did not accept the extension of treaty jurisdiction to non-parties.

Israel also voted against the Statute, citing the politicization of the list of war crimes and the circumvention of basic sovereign prerogatives in the process of adopting the instrument. China separately warned that allowing the Prosecutor to initiate proceedings would make state sovereignty dependent on the subjective decision of an international official and that preliminary chamber review was insufficient.

Accordingly, the present conflict cannot be portrayed as a sudden assault by states on a long-established system of universal justice. The United States and Israel objected to key jurisdictional elements before the Court was created; their subsequent practice continues that original refusal rather than reversing consent previously granted.

The U.S. Position

Absence of Consent

The principal U.S. argument rests on a basic rule: a treaty does not create obligations for a third state without its consent. The United States has not ratified the Rome Statute and has consistently rejected the ICC’s authority to prosecute U.S. nationals without Washington’s consent or a binding decision of the Security Council.

The ICC responds that it does not impose treaty obligations on the United States, but exercises territorial jurisdiction delegated to it by a State Party. Thus, if the alleged conduct occurred on the territory of a party to the Statute, the suspect’s nationality does not eliminate the Court’s jurisdiction.

That response, however, addresses only the formal treaty-law component of the objection, not the sovereignty-based one. Authority to determine the legality of the conduct of U.S. service members and political officials is transferred to an institution that the United States did not establish, does not recognize, and cannot control. Even if Washington is under no legal duty to assist the Court, a U.S. national may acquire an international procedural status, become subject to a warrant, and face restrictions created by a treaty regime to which the United States is not party.

Displacement of the Constitutional Framework

For the United States, the issue has a constitutional dimension. The ICC can assess the genuineness of U.S. investigations even though the United States never delegated to it supervisory authority over its military and federal justice systems. Such review removes the determination of the adequacy of American justice from the framework of elected government, Congress, the federal courts, and military justice.

The U.S. position does not seek impunity for its nationals. It requires accountability to be administered by national courts or by an international mechanism to which the state has consented. In this logic, the ICC does not complement the U.S. system; it appoints itself as an external appellate authority over that system.

Politicized Prosecution

The United States points to the risk of politically motivated proceedings against military personnel and officials involved in overseas operations. This risk cannot be reduced to rhetoric: the ICC Prosecutor has authority to initiate an investigation proprio motu with authorization from the Pre-Trial Chamber, and the decision to open a case can itself generate diplomatic and reputational consequences.

The structure is asymmetric. The Prosecutor decides on the direction of an investigation, ICC judges themselves review its legality, and no external constitutional body exists that can overturn an expansive interpretation of the Court’s competence. The Assembly of States Parties administers the budget and elects officials, but it is not supposed to intervene in individual judicial decisions.

Sanctions as a Defense of Jurisdiction

In February 2025, the administration of President Donald Trump introduced a sanctions mechanism targeting ICC actions directed against the United States and allies that do not recognize the Court’s jurisdiction. The executive order characterized such actions as a threat to U.S. sovereignty and national security.

From the ICC’s perspective, the sanctions constitute pressure on independent justice. From the U.S. perspective, they are a defense of a non-party state against an institution attempting to create legal consequences without American consent. The latter interpretation is logically stronger where the ICC cannot identify an original U.S. act delegating authority to the Court.

The Israeli Position

Jurisdiction Through Contested Statehood

Israel is not a party to the Rome Statute. ICC jurisdiction rests on Palestine’s accession to the Statute and on the Court’s conclusion that, for purposes of Article 12, its territorial jurisdiction extends to Gaza, the West Bank, and East Jerusalem.

Israel disputes the possibility of such a delegation in the first place: in its view, Palestine does not possess full territorial criminal jurisdiction that it could transfer to the ICC, while the limitations arising from the Oslo Accords cannot give the Court greater powers than those possessed by the delegating entity.

In the critical model, this is an example of institutional self-expansion. The Court first recognizes a legal status for the territory sufficient for purposes of the Statute, then derives jurisdiction from that recognition, and finally adjudicates the objections of a state that never accepted that jurisdiction.

The Procedural Trap

In September 2024, Israel challenged jurisdiction before the warrants were issued. The Pre-Trial Chamber rejected the objection as premature and, on the same day, issued warrants for Benjamin Netanyahu and Yoav Gallant.

In April 2025, the Appeals Chamber reversed that decision and remanded the issue for consideration on the merits, finding that the Pre-Trial Chamber had not adequately addressed Israel’s central argument. The episode is significant: the warrants were issued after a jurisdictional objection had been rejected in a manner that the higher chamber subsequently found procedurally inadequate.

Even if subsequent proceedings ultimately confirm ICC jurisdiction, institutional damage has already occurred. The international status of a sitting prime minister was altered before final resolution of a fundamental dispute over the Court’s own authority.

Complementarity

The Rome Statute defines the ICC as complementary to national systems. Israel has a functioning judiciary, military justice system, and mechanisms for investigating the conduct of its armed forces. The critical position holds that an international institution should not displace those mechanisms without specific evidence of unwillingness or inability to investigate substantially the same conduct.

The problem is that the ICC itself determines whether national proceedings satisfy the Statute’s criteria. The Court distinguishes between questions of jurisdiction and admissibility and requires that a national investigation concern specific individuals and cover substantially the same alleged criminal conduct as that under consideration by the Court. The principle that “national courts have primacy” therefore becomes, in practice, “national courts have primacy until the ICC decides otherwise.”

The Symmetry That Does Not Exist

The Israeli critique is reinforced by comparison with the ICC’s institutional limitations. The Court does not possess universal jurisdiction, depends on the geography of membership, and cannot act equally across all conflicts. A warrant against the leader of a non-party state is therefore presented as universal justice even though there is no universal consent, universal enforcement, or universal subjection to jurisdiction.

This arrangement makes the ICC not a world court but a treaty court of a coalition that claims authority beyond the coalition itself. That is the central sovereignty defect in the Israeli case.

The African Position

Not a Rejection of Justice

The African Union’s position is often reduced to a desire to shield leaders from accountability. Primary documents reveal a more complex structure: the African Union has simultaneously affirmed the fight against impunity and demanded fair and transparent international justice without double standards, the regionalization of international criminal law, and respect for the dignity, sovereignty, and integrity of states.

Africa’s dispute with the ICC is therefore not a dispute of “justice versus criminals.” It is a conflict between The Hague’s centralized model and the demand that international accountability not erode regional political agency.

Geographic Selectivity

During the ICC’s early period, all investigations and prosecutions initiated by the Prosecutor concerned African countries and nationals. African Union documents explicitly asked why grave crimes in other regions had not received comparable attention and whether this pattern was turning the ICC into a system of selective justice.

Supporters of the ICC correctly note that some African situations were referred by the states themselves. But this does not eliminate the structural objection: the Court was most active where states were weaker, more dependent on international assistance, and less capable of responding through sanctions or institutional obstruction.

Selectivity does not necessarily appear in the text of the law; it appears in the distribution of enforceability. A weak state faces arrest demands, political stigma, and external assessment of its judicial system, whereas a powerful state can remain outside the Statute, block action through the Security Council, or impose sanctions on the Court itself.

Immunity and the Governance of the State

The African Union has insisted on immunities for sitting heads of state and warned that international prosecution of a leader while in office can undermine constitutional order, stability, and peace processes. In 2013, the Assembly of the African Union called for international proceedings against serving heads of state and government not to be initiated or continued during their terms in office.

This does not necessarily imply permanent immunity. The African position allows for subsequent accountability but distinguishes individual responsibility from the functional continuity of the state. The ICC narrows that distinction by asserting that official capacity is irrelevant before the Court.

From a critical perspective, The Hague appropriates the authority to decide when international accountability should take precedence over state stability, even though the consequences of that decision—governance crises, failed negotiations, and struggles for power—are borne not by the Court but by the national society.

The Security Council as a Mechanism of Inequality

The ICC’s relationship with the Security Council particularly weakens the claim to neutral judicial authority. The Council may refer situations to the ICC and defer proceedings, while its five permanent members possess veto power. At the same time, the United States, Russia, and China are not parties to the Rome Statute.

An institutional hierarchy results: states that have not subjected their own nationals to the ICC’s treaty jurisdiction can participate in placing other states under that jurisdiction. African requests to defer cases concerning Sudan and Kenya went for years without the desired response from the Security Council.

This undermines the idea of equality before international law. Judicial procedure becomes connected to a body in which legal universality is filtered through geopolitically privileged membership.

Withdrawal Strategy

In 2017, the African Union adopted a strategy regarding the ICC and supported the sovereign decisions of Burundi, South Africa, and The Gambia to submit notices of withdrawal. The strategy sought reform of the Court, regionalization of international criminal law, and protection of sovereignty rather than merely a mechanical mass withdrawal.

In 2026, Niger, Burkina Faso, Mali, and Chad submitted notices of withdrawal from the Rome Statute; these are due to take effect in 2027. This process confirms that the conflict has ceased to be an episode centered on individual defendants and has developed into a legitimacy crisis for the model as a whole.

The scale of distrust does not automatically prove that every government is correct. It does, however, demonstrate the failure of the ICC’s universalist positioning: an institution intended to embody common international justice is increasingly perceived by a significant group of states as an external mechanism of political and legal subordination.

The Common Line of Objection

The positions of the United States, Israel, and African states differ in their histories and interests, but converge on five points.

The unifying thesis can be stated as follows: international criminal accountability is legitimate, but it cannot create authority over states to which they never consented, or grant powers over participating states that are broader and more durable than those actually delegated.

The Mechanism of Sovereignty Erosion

Step 1. Normative Universalization

The ICC presents the norms of its founding treaty as an expression of the interests of the “international community.” A treaty coalition thereby acquires the language of universal moral authority even though membership remains incomplete.

Step 2. Self-Determination of Jurisdiction

When a dispute arises, the Court itself decides whether it has jurisdiction. In the Israeli case, the ICC determines whether Palestine can delegate territorial jurisdiction; in the U.S. context, whether the territory of a State Party can open the way to prosecution of nationals of a non-party; and in African cases, whether the immunities of heads of state remain applicable.

Step 3. Certification of National Justice

Through complementarity, the ICC assesses whether a state is “genuinely” investigating a case. National justice is transformed from an autonomous expression of sovereignty into a system required to prove to an external institution that its own work is adequate.

Step 4. Delegated Coercion

The ICC has no police force and therefore relies on the national apparatuses of States Parties. An international decision is converted into a duty for national police to arrest an individual, including the leader of a third country. Refusal is recorded as non-cooperation and referred to the Assembly or the Security Council.

Step 5. Reputational Sanction

Even without an arrest, a warrant restricts travel, diplomacy, and negotiations. A decision made under a relatively low evidentiary threshold at the warrant stage becomes a global political label long before an adversarial trial on the merits.

Step 6. The Ratchet Effect

Withdrawal from the Rome Statute does not terminate obligations immediately or erase jurisdiction over the period of membership. The Court retains the ability to continue certain proceedings after withdrawal, as the Philippine case demonstrated.

The system therefore operates as an institutional ratchet: entry occurs through a sovereign decision, while the scope of the consequences of withdrawal is subsequently determined not only by the state but also by the ICC itself.

The Burke Index

The Index measures neither the gravity of crimes nor the moral value of accountability, but the ICC’s potential to constrain state autonomy. Each dimension is assessed by scope, depth of intervention, duration, external enforceability, and the state’s ability to opt out of the effect.

Political — 91/100

The ICC can alter the international status of a sitting leader without controlling the territory of that state. A warrant creates for allies either a legal obligation or a political expectation of arrest, restricts diplomatic mobility, and affects negotiations.

This is a direct intrusion into the core of sovereignty: the state retains its government de jure, but an external institution attempts to determine where and under what conditions its leader may represent the country.

Economic — 47/100

The ICC’s economic power is limited by the absence of its own taxation and sanctions instruments. Court decisions nevertheless create costs for implementation, witness protection, investigations, and compliance, while the conflict with the United States moves the jurisdictional dispute into the sphere of financial restrictions.

The mid-range score reflects the indirect nature of the impact: the ICC does not itself control the financial system, but it can trigger a collision between a state’s treaty obligations and the sanctions regime of a major power.

Technological — 35/100

The Court depends on digital evidence, cloud systems, communications channels, and platforms, but lacks autonomous technological sovereignty. It therefore cannot directly subordinate national digital infrastructure to its authority.

The threat lies in the creation of cross-border bodies of evidence and requests directed to state and private entities. Without cooperation from countries and companies, however, the ICC’s technological infrastructure remains vulnerable.

Informational — 82/100

The ICC’s most powerful instrument is not arrest but the production of a legitimate accusatory narrative. In public discourse, the phrase “an international court has issued a warrant” often erases the distinction between suspicion, the reasonable-grounds standard, and a final determination of guilt.

The ICC thereby acquires the capacity to politically disqualify a state’s leadership before a full trial. The state is compelled not only to mount a legal defense but also to demonstrate that disagreement with jurisdiction does not amount to support for impunity.

Cultural — 59/100

The ICC universalizes a particular model of the relationship among immunity, peaceful settlement, and criminal accountability. The African Union proposes a different balance: temporary functional immunity for serving leaders, combined with subsequent accountability and the development of regional mechanisms.

Cultural pressure arises when disagreement with The Hague model is characterized as insufficient commitment to international justice rather than as a competing legal conception.

Cognitive — 92/100

The ICC’s principal success lies in changing the language of sovereignty. National jurisdiction is no longer presumed sufficient; it must demonstrate its “genuineness” before an international institution.

This structure reverses the burden of argument. The ICC is not required to prove the state’s consent to intervention; instead, the state must explain why the international institution is required to step back. This is the deepest mechanism through which sovereign authority is eroded.

Military-Coercive — 80/100

The ICC has no army or police force of its own and therefore is not a sovereign in the full sense. Its warrants, however, target individuals who make military decisions, while enforcement is assigned to the coercive institutions of participating states.

The result is a hybrid structure: the Court bears no responsibility for the security and defense of states, yet claims personal authority over those who manage that security. It acquires a measure of disciplinary power over military command without assuming the obligations of a state.

Institutional Failure

A Court That Reviews Itself

Fundamental disputes over ICC competence are resolved by ICC bodies themselves. An appellate process exists, but it remains internal. The Israeli case demonstrated that a Pre-Trial Chamber can issue warrants while simultaneously rejecting a jurisdictional objection in a procedurally defective manner, only for the Appeals Chamber later to reverse that rejection.

This does not automatically establish that the warrants are unlawful, but it does demonstrate the absence of an external constitutional arbiter. The institution simultaneously expands its authority and reviews the limits of that expansion.

Organizational Culture

he 2020 Independent Expert Review made 384 recommendations and identified widespread distrust within the ICC, a culture of fear, bullying, harassment, inadequate leadership, and weak accountability. The experts also pointed to inconsistency in judicial reasoning and the absence of sustained strategic planning.

This is particularly important to the sovereignty critique. An institution that assesses the capacity of national systems to investigate grave crimes has itself displayed serious problems of internal control, staff protection, and leadership accountability.

Mismatch Between Ambition and Resources

The expert review found the existing workload unsustainable and recommended that the Office of the Prosecutor pursue fewer situations, raise the gravity threshold, and define priorities more clearly. The ICC’s universalist claim is therefore not matched by the resources required for universal implementation.

Selectivity consequently becomes not an exception but an operational necessity. The Court must choose, yet every such choice has political effects: some conflicts become international criminal cases while others remain outside effective prosecution.

Power Without Responsibility

The ICC makes decisions with far-reaching consequences but bears no responsibility for their secondary effects: collapsed negotiations, diplomatic crises, fractured alliances, instability, or retaliatory sanctions. It can maintain that it is applying the law while leaving states to manage the political consequences.

This is what distinguishes a court from a quasi-sovereign institution: the ICC demands the performance of certain sovereign functions without assuming the full range of sovereign responsibilities.

Forecast

In the short term, the ICC will seek to consolidate jurisprudence under which the nationality of a non-party state, official status, and subsequent withdrawal from the Statute do not extinguish jurisdiction that has already arisen. This will strengthen the institutional ratchet effect.

The United States will continue to use sanctions, visa restrictions, and financial measures to protect its nationals and allies. Israel will seek the cancellation or suspension of warrants through jurisdictional and procedural objections. African states will combine withdrawals, demands for reform, and the development of regional criminal justice mechanisms.

The most likely result is not the disappearance of the ICC but fragmentation of the international criminal justice system. Competing accountability regimes will emerge: The Hague-based, national, and regional. Universality will give way to bloc-based jurisdiction.

For the ICC, this would represent a strategic defeat of its institutional positioning. A Court created to universalize accountability risks becoming the judicial institution of one coalition, claiming authority over states outside that coalition while possessing neither their consent nor the means of equal enforcement.

Concluding Thesis

The ICC should be characterized as a quasi-sovereign judicial-political institution rather than as a neutral world court. Its authority rests on a combination of moral universalization, self-determination of jurisdiction, external assessment of national justice, reliance on national police forces, and informational stigmatization.

The positions of the United States, Israel, and the African Union form a common line of defense of sovereignty:

A treaty should not create criminal authority over the nationals of a state that has not accepted that authority.

An international institution should not independently expand the limits of delegated competence.

National and regional systems should not be treated as invalid merely because they do not reproduce The Hague’s procedural model.

Immunity, stability, peaceful settlement, and accountability should be balanced by the states that bear the consequences of those decisions.

International justice without equal jurisdiction and enforcement ceases to function as law and becomes hierarchy.

For this reason, criticism of the ICC is not a defense of impunity. It is a defense of the principle that criminal justice remains justice only when its jurisdiction is lawful, consent is traceable, procedure is accountable, and the norm is applied not merely to those who are easiest to compel.