Authored By: Natalie Searle
University of Lincoln
Abstract
International law took a pivotal turn in the 1940s, after the events of World War 2, when the Nuremburg trials took place. The outcome of this trial was substantive in the developments of international criminal law.[1] This article critically examines the role of international law and its effectiveness as well as restrictions due to power and political influence. It will cover the developments of international law in the events of war crimes, with supporting arguments from journal articles, and case studies including the Darfur Genocide and Ukraine War, to demonstrate how the law intervenes in war crimes
Introduction
International law establishes the rules that apply to relationships between states.[2] Legal obligations derive from the creation of treaties, United Nations resolutions and general principles of the law. The main focus of this article will be an assessment of international law and its substantial impact in addressing war crimes, and the limitations the law faces. Legal mechanisms such as tribunals, treaties, like the Rome Statute, and legal institutions such as the International Criminal Court are significant in the case in enforcing international law, where war crimes are committed. Under the Rome Statute, War crimes are defined as breaches of the Geneva Conventions of 12 August 1949[3]. This Statute allows the International Criminal Court jurisdiction over a number of war crimes[4], demonstrating the importance of holding individual perpetrators and states responsible for criminal accountability in war crimes. However, these institutions also have constraints due to political interference and power imbalance.
A brief history of International Criminal Law
The Charter of the United Nations, which was adopted on June 26th, 1945, established a system of international law.[5] The Nuremburg trials which took place between 1945 to 1946, were substantial in serving as a framework for international tribunals and trials of War crimes and Genocide. The result of the Nuremburg trials meant that the imposition of individual responsibility for massive human rights violations, even for… untouchable leaders was a distinct possibility in a transformed political calculus[6]. This demonstrates the sufficient impact the Nuremburg trials had on holding powerful figures accountable for war crimes, and that international law is not limited, in this circumstance.
Before the official introduction of the Rome Statute, which established the International Criminal Court, Ad Hoc tribunals were created as a temporary solution, by the United Nations to prosecute those responsible for the war crimes in the Yugoslav Wars and the Rwandan Genocide[7]. The International Criminal Tribunal for the former Yugoslavia was established in 1993 and the International Criminal Tribunal for Rwanda was established in 1994. In the International Criminal Tribunal for the former Yugoslavia (ICY), in the case of Ratko Mladic[8], it was found that he was instrumental to the crimes he was accused of, as a perpetrator. He was found guilty of these crimes against Bosnian Muslims and Bosnian Croats, including deportation, murder, genocide and persecution and taking of hostages[9]. As a high ranking official, being held accountable under international law, this demonstrates that being of high military rank and a notably powerful figure does not result in exemptions from legal punishment under international law, reinforcing the concept of individual criminal responsibility. Following from these events, the Rome Statute was officially adopted in 1998 and entered into force in 2002, which created the International Criminal Court in 2002[10].
To what extent is international law limited?
There have been many situations in which there has been curtailment of international law, in situations of cooperating with states and individuals in high positions of power. The United Nations Security Council has a significant role in international law, as is its responsibility to maintain international peace and security. It has a large involvement in the International Criminal Court, for example, the Council can refer situations to the ICC or defer investigations. Makau Mutua argues that the International Criminal Court is a “creature of political compromise” that cannot be taken seriously if it fails to hold powerful individuals and states accountable for committing heinous crimes[11]. Therefore, suggesting that the ICC can be affected by political institutions, and international relations, which begs the question of whether this reduces the credibility of the International Criminal Courts’ authority. Furthermore, the International Criminal Court has no powers of arrest, meaning that it has to rely on state cooperation to arrest and surrender the accused[12]. This could prove complicated as, if the person accused is in position of power, they may be entitled to immunity, and there are matters involving jurisdictional disputes as well as challenges to gather evidence if state cooperation[13] is limited. Therefore, with all these considerations, unless the possibility it is overridden by the UN Security Council’s referral to the ICC, the state ultimately holds significant power and influence in this situation. In the case of Omar Al Bashir[14], two warrants for his arrest were requested by the International Criminal Court in 2009 and 2010, for his alleged individual criminal responsibility as an ‘indirect’ perpetrator, for crimes against humanity, war crimes and genocide. However, there was no immediate justice. Al Bashir won two presidential elections between 2010 and 2015 and travelled to member states of the International Criminal Court (ICC), such as South Africa, in which he was not arrested by any, as was their obligation. In 2019, he was arrested after a military coup d’etat[15], and was tried in Sudan who cooperated with the ICC. This demonstrates the limits of legal authority of the International Criminal Court[16] and legal enforcement.
In 2023, the pre-trial Chamber II of the International Criminal Court issued warrants of arrest for Vladimir Putin and Maria Alekseyevna Lvova-Belova, for the unlawful deportation and transfer of Ukrainian children from the occupied areas in Ukraine to the Russian Federation[17] which are war crimes under the Rome statute[18]. However, the issue of the arrest is the head of state immunity concept and the state’s cooperation. As Russia is not a member state of the International Criminal Court this restricts the ICC’s legal authority severely. In the Arrest Warrant Case[19], the International Court of Justice held that high ranking official, such as heads of state are allowed immunities from criminal cases as well as civil cases, with the exception being that certain international criminal courts who have jurisdiction may try criminal proceedings[20]. However, Russia is not part of the international agreements under the International Criminal Courts, therefore, the Rome Statute and other ICC legal authorities do not waiver Putin’s immunity[21], therefore limiting the extent of international law’s authority. With the international community’s involvement however, and the news coverage on the Ukraine War, although Putin retains status as the head of state of Russia, he is not untouchable.
With the ongoing conflict between Palestine and Israel, a number of brutal crimes have been committed. The Pre- Trial Chamber I of the ICC issued arrest warrants for Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes, on 21 November 2024[22]. The Chamber found that alleged crimes against humanity were part of a widespread systematic attacks against the civilian population of Gaza, leading to the Chamber finding reasonable grounds that crimes against humanity were committed[23]. The conflict has been a subject of global debate, with many western states and international organizations recognizing Israel’s right to act in self-defence, however Russia and many Arab states and international organizations have denied Israel’s right to act in self-defence.[24] On the concern of the situation the International Criminal Court holds jurisdiction over the crimes committed on Palestinian territory, however it does not have jurisdiction over Israel as it is not a member state of the ICC[25]. This complicates the power of the Court over Israel as a state. Netanyahu, like Putin holds immunity as a head of state which holds significance in international law’s reach and authority. The use of force by Israel could be seen as an act of aggression, but since Israel is not a member state this reiterates that the ICC cannot prosecute, unless the aggression is committed on the territory of a state party and by the national of a state party.[26]This shows, alongside the conflict in Ukraine and Russia, that where conflicts arise, international law can intervene but is held back by political powers and heads of states under the laws of immunity. Therefore, international law is limited in jurisdictional power, to this extent.
Conclusion
Since its establishment, International law has been instrumental to the creations of tribunals and institutions, such as the International Criminal Court. International law provides the Courts and tribunals with sufficient legal authority. The impact it has, has been profound in upholding justice through holding states and individual perpetrators accountable for considerable crimes against humanity and warfare. However, it is clear, where war crimes are concerned, that enforcement of the law, does not always result in immediate accountability and a just outcome. This illustrates that the devices of international law, may need to reform their institutions and the law so that it allows for immediate legal action for the individuals and states responsible in committing inhumane atrocities and war crimes, including non-ICC member states, to ensure the security and prevention of crimes against the international community.
Bibliography
Table of Cases
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, I.C.J. Reports 2002
Ratko Mladic IT-09-92
The Prosecutor v Omar Hassan Ahmad Al- Bashir ICC-02/05-01/09
Table of Legislation
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)
United Nations, Charter of the United Nations (26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
Journal Articles
Akande. D, ‘International law immunities and the International Criminal Court’. (The American Journal of International law), vol.98, No.3 (July.,2004), pp.407-433
Mutua M. “The International Criminal Court: Promise and Politics.” Proceedings of the Annual Meeting (American Society of International Law), vol. 109, 2015, pp. 269–72
Payam. A, ‘The International Criminal Court in Context: Mediating the Global and Local in the Age of Accountability”. (The American Journal of International Law), Vol 97, No.3 (July,.2003), pp. 712-721
Steenberghe van. R, ‘The armed conflict in Gaza, and its complexity under international law; Jus ad bellum, jus in bello and international justice’ (Leiden Journal of International Law), 2024, pp. 983-1017
Websites
Avci. M, ‘Arresting Putin: Easier said than done’, https://peacehumanity.org/wp-content/uploads/2023/06/SEE-BSR-Issue-8.pdf#page=32 , accessed July 29 2025
‘Birth of International criminal law’, < https://museums.nuernberg.de/memorium-nuremberg-trials/the-legacy-of-nuremberg/birth-of-international-criminal-law accessed July 29, 2025
Butchard P, ‘Principles of International law: a brief guide’, https://commonslibrary.parliament.uk/research-briefings/cbp-9010/ accessed July 29, 2025
BBC News, ‘Sudan Coup: Why Omar Al-Bashir was overthrown’ (15 April 2019) <https://www.bbc.co.uk/news/world-africa-47852496> accessed July 29, 2025
The International Criminal Court < https://www.icc-cpi.int/> accessed July 29, 2025
Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ < https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and> accessed 29 July 2025
Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant < https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges> accessed 29 July 2025
UN International Law Documentation https://research.un.org/en/docs/law/courts accessed July 29 2025
[1] ‘Birth of International criminal law’, < https://museums.nuernberg.de/memorium-nuremberg-trials/the-legacy-of-nuremberg/birth-of-international-criminal-law> accessed 26 July 2025
[2] Butchard P, ‘Principles of International law: a brief guide’, <https://commonslibrary.parliament.uk/research-briefings/cbp-9010/ >accessed 24 July 2025
[3] Rome Statute of the International Criminal Court, art. 8(2)(a)
[4] ‘War Crimes’, <https://plus.lexis.com/uk/document/?pdmfid=1001073&crid=61384213-12a3-4bd9-9031-a52034f8e1af&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn:contentItem:5TJ9-NK51-DYCB-R25F-00000-00&pdcontentcomponentid=127876&pdteaserkey=&pdislpamode=false&pddocumentnumber=1&ecomp=Lt5k&earg=sr0&prid=75322239-6fc1-452b-b97a-c7cb861611b5> accessed 28 July 2025
[5] United Nations, Charter of the United Nations (26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
[6] Payam. A, ‘The International Criminal Court in Context: Mediating the Global and Local in the Age of Accountability”. The American Law Journal of International Law, (2003), p. 713
[7] UN International Law Documentation https://research.un.org/en/docs/law/courts accessed July 29 2025
[8] Ratko Mladic (IT-09-92)
[9] ibid
[10] Rome Statute of the International Criminal Court
[11] Mutua M, ‘The International Criminal Court: Promise and Politics’. Proceedings of the Annual Meeting (American Society of International Law), vol. 109, 2015, pp.269-72
[12] Akande. D, ‘International law immunities and the International Criminal Court’. (The American Journal of International law, vol.98, No.3 (July.,2004), pp.407-433
[13] Rome Statute, Art.98(1)
[14] The Prosecutor v Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09
[15] BBC News, ‘Sudan Coup: Why Omar Al-Bashir was overthrown’ (15 April 2019) < https://www.bbc.co.uk/news/world-africa-47852496> accessed 29 July
[16] The International Criminal Court < https://www.icc-cpi.int/> accessed July 29 2025
[17] ‘Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova’ < https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and> accessed 29 July 2025
[18] Rome Statute, Art. 8(2)(a)(vii) and 8(2)(b)(viii)
[19] Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, I.C.J. Reports 2002
[20] ibid
[21] Dr Avci. M, ‘Arresting Putin: Easier said than done’, https://peacehumanity.org/wp-content/uploads/2023/06/SEE-BSR-Issue-8.pdf#page=32 , accessed July 29 2025
[22] Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant < https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges> accessed 29 July 2025
[23] ibid
[24] Steenberghe van. R, ‘The armed conflict in Gaza, and its complexity under international law; Jus ad bellum, jus in bello and international justice’ (Leiden Journal of International Law), 2024, pp. 983-1017
[25] ibid
[26] ibid
