The ICC’s Credibility Crisis
By Kasturi Chakraborty
How the ICC’s Complementarity Rule Shields Strong States
For over two decades, the International Criminal Court (ICC) has been seen as the great hope for those seeking justice for the world’s gravest crimes. Critics, however, say that when it comes to powerful countries, the ICC has proven far less willing or able to hold perpetrators to account than originally hoped. Two cases highlight this tension starkly: the court’s approach to alleged war crimes by British forces in Iraq, and its ongoing—and highly politicized—investigation into crimes being committed in Palestine.
The ICC began operating in 2002 after the Rome Statute entered into force, promising to prosecute individuals for genocide, war crimes, crimes against humanity, and (later) the crime of aggression. In theory, the standard is straightforward: if a member state is unwilling or unable to investigate credible allegations, the court can intervene. In practice, power politics and questions about state cooperation have repeatedly stalled investigations, leading many observers to wonder if real justice is possible when the accused come from militarily or diplomatically influential countries.
The UK in Iraq: Clear Evidence, No Investigation
As far back as 2003, reports of abuses by British troops in Basra and other parts of southern Iraq began to surface. Eventually, the allegations grew into a grim catalog of torture, unlawful killings, and sexual violence—atrocities that some say constitute war crimes. Multiple organizations and media investigations found “credible evidence” of serious abuses, from beatings of detainees to at least one verified instance of an Iraqi being shot in questionable circumstances.
The ICC took a preliminary look at these allegations and issued a stark conclusion in 2020: it found a “reasonable basis to believe” that British soldiers committed war crimes in Iraq, including torture and other forms of inhuman treatment. Despite those harrowing findings, the court decided not to proceed with a full criminal investigation. Officially, the ICC said it could not prove the United Kingdom was shielding suspects from prosecution. The principle at play was “complementarity”: because the UK is itself a member of the ICC if it can show (on paper, at least) that it is willing to investigate and prosecute its soldiers, the ICC will not step in.
Yet the UK’s investigations—via the Iraq Historic Allegations Team—were marred by revelations of inadequate inquiries and a backlash against lawyers who pursued the claims. Military prosecutors ultimately brought no cases to court, and the investigative team was effectively shut down under public and political pressure. “[It] deprived victims of justice,” the ICC prosecutor acknowledged but stopped short of concluding that the UK acted in bad faith. Frustrated Iraqis, who had hoped to see meaningful prosecutions, were left with the uncomfortable sense that power politics delivered a de facto shield for British officials.
Palestine and Israel: The Tensions of Jurisdiction
Compare that to the simmering situation in Palestine, where the ICC has now taken unprecedented steps. At first, the court said it lacked jurisdiction because Palestine was not recognized as a state. But in 2015, after Palestine’s status at the United Nations was upgraded to “non-member observer state,” ICC prosecutors reopened the question. By 2024, as the human toll in Gaza continued escalating, the ICC moved to issue arrest warrants for major Israeli political and military figures, including Prime Minister Benjamin Netanyahu, accusing them of war crimes and crimes against humanity.
Israel sharply contests the court’s authority, arguing that Palestine does not meet the standard of statehood and that Israel itself is not an ICC member. The United States has also applied steady pressure on the court over any steps to investigate Israel, going as far as threatening sanctions against ICC officials and the court itself.
Predictably, many experts believe that, without Israel’s cooperation, any real prosecution of Israeli suspects could prove unworkable. Indeed, physically arresting high-level suspects would require either a voluntary surrender or a scenario in which countries that recognize the warrants intercede if those suspects travel abroad.
Still, the ICC’s Palestinian investigation has advanced in an atmosphere charged with accusations of bias, allegations of genocide in Gaza, and new claims that Israeli bombardment deliberately targets civilians. This stands in stark contrast to the ICC’s reticence over British abuses in Iraq—despite, in that case, the UK being a full member of the court.
Politics vs. Principle
Why the discrepancy? One explanation is that the UK launched domestic procedures—albeit flawed—that gave it just enough of a “willing and able” veneer to trigger the ICC’s complementarity rule. Israel, on the other hand, not only claims that the court lacks any jurisdiction but also refuses to cooperate. Paradoxically, that refusal seems to have emboldened ICC prosecutors to test the limits of the court’s reach.
Beyond the legal intricacies, many argue that the ICC is susceptible to the political tides. Investigating powerful states or their allies invites pushback through sanctions, diplomatic isolation, and severe budgetary constraints for the court. Indeed, some Republican lawmakers in the United States have introduced legislation to sanction the ICC if it continues investigating Israel. Meanwhile, critics say the ICC’s inability—or reluctance—to uphold the same standards for Western states that it applies to others undermines its legitimacy.
Iraq Deserves Credible Action, Too
Many Iraqis, human rights advocates, and legal experts argue that the case against British forces demonstrates classic crimes falling well within the ICC’s purview—“the most serious of crimes,” as many put it.
Surely, the rape of Iraq qualifies as the most serious of crimes worthy of the time of a court of last resort,
one observer wrote, reflecting the frustration of those who witnessed ample evidence but no tangible legal accountability for senior British officials. For them, the complementarity principle has effectively become a shield, not a bridge to justice.
The deep disappointment in Iraq’s experience casts a shadow over the Palestinian hope that the ICC may deliver any tangible breakthrough. If the ICC truly wants to stand for global justice, it must apply its mandate consistently. That means, on one hand, refusing to buckle under diplomatic pressure in the Palestinian case. But it equally means revisiting how the principle of complementarity can be gamed. If a state appears to conduct investigations solely to avoid the ICC’s scrutiny (without bringing actual perpetrators to trial), the prosecutor should have the courage to press ahead.
The year 2025 may see more developments on both fronts. Israel, for its part, is entrenched in refusing ICC jurisdiction, and the UK continues to dodge deeper accountability for what happened in Iraq. The outcome will test whether the ICC can transcend politics and become the robust guardian of international criminal law that its founders intended.
For the victims—be they in Basra or Gaza—one thing is clear: powerful states must not be allowed to wield legal technicalities as a barrier to justice. They deserve, at the very least, a court willing to take action when national procedures fail. Until that happens, the ICC’s promise will only be partially fulfilled.
