The International Criminal Court’s Legitimacy Problem: Why Canada Cannot Afford to Look Away |
Two decades after its creation, the International Criminal Court (ICC) remains one of the most ambitious projects in international law: a permanent court designed to prosecute war crimes, genocide, crimes against humanity, and crimes of aggression when states cannot or will not. Yet the institution now stands at a moment of profound uncertainty, facing accusations of bias, declining cooperation, and jurisdictional fractures stretching from Africa to Ukraine to Gaza. For Canada – a founding supporter of the Rome Statute and a country that routinely presents itself as a defender of human rights – the ICC’s current crisis is not distant diplomatic noise. It threatens the international legal order Canada helped construct and continues to rely upon to project its foreign-policy identity.
The ICC was launched in 2002 under the Rome Statute with a broad mandate to address grave international crimes beyond the capacity or willingness of domestic courts. Today, 125 states are members, including Canada, and hundreds of situations have been reviewed. Despite this sweeping jurisdiction, the Court has secured relatively few convictions. Within its first decade, only 17 individuals were successfully prosecuted, while numerous suspects remain fugitives years after arrest warrants were issued. The Court also lacks its own enforcement arm, relying entirely on member states to arrest and surrender suspects. When governments decline to cooperate, the ICC has little recourse beyond diplomatic outreach – an institutional design premised on the assumption that moral obligation would outweigh political calculation.
The gap between mandate and capability has been most visible in Africa. Following atrocities in Sudan’s Darfur region, ICC judges issued arrest warrants for six suspects. Two eventually appeared in The Hague, but others – including former Sudanese president Omar al-Bashir – evaded arrest for years, travelling internationally despite active warrants. Similar patterns have emerged elsewhere: suspects avoid custody by remaining within allied territories, witness intimidation undermines prosecutorial integrity, and governments ignore cooperation requests with few meaningful consequences.
Beyond enforcement failures, legitimacy remains the ICC’s defining struggle. The Court’s credibility depends on the universal application of international law, yet critics argue its prosecutions have disproportionately focused on African cases. Between 2015 and 2017, several African governments........