The recent progress made in cases against former Philippines president Rodrigo Duterte and Ugandan warlord Joseph Kony is assisting the International Criminal Court (ICC) in addressing criticisms about its effectiveness. ‘It is a great sign that despite the fact that people are critical, it is working,’ says Marcus Vinicius de Freitas, Senior Fellow at think-tank Policy Center for the New South in Morocco.

Since entering into force in 2002, the ICC has faced criticism including that it lacks enforcement power and operates too slowly. Others have accused the Court of disproportionately focusing on African nations. In September, Burkina Faso, Mali and Niger withdrew from the ICC, accusing it of ‘selective justice’. That’s why progress, particularly in the case of Duterte, is significant, says de Freitas. ‘It is a very strong statement to the world [contradicting] what many people say [about] the ICC being weak and only prosecuting African heads of state,’ he says.

In September, the ICC’s charge sheet for Duterte was released. He’s accused of being criminally responsible as an ‘indirect co-perpetrator’ for the alleged murder of dozens of people. The allegations relate to killings that took place during his first term as Mayor of Davao City as well as others that occurred during the ‘war on drugs’ waged by Duterte while president. In a speech shortly before his arrest in March, Duterte said he wasn’t ‘at fault’ for the ‘war on drugs’ campaign.

In what was a significant month for the ICC, a confirmation of charges hearing also took place in September for Joseph Kony, the founder of the Ugandan rebel group the Lord’s Resistance Army, who’s charged with 39 counts of war crimes and crimes against humanity. The militant remains at-large, though the Court ruled that there’s sufficient evidence to take Kony’s case forward – the first in absentia confirmation at the ICC.

Kony’s defence team has raised the concern that confirmation in absentia risks normalising such proceedings without the accused present. Kony himself denied the allegations when interviewed a number of years ago. ‘The problem is that without him present and surrendered to the Court, the case isn’t actually going to go anywhere because procedurally, although you can have a confirmation of charges hearing without the person present, you cannot have the same thing for trial,’ says Beauchemin.

How far the case can go with the defendant in absentia is a matter of some debate, and Sutherland – who’s a barrister at 9 Bedford Row Chambers in London – notes that trying Kony in this way is a test of the processes, and important when it comes to future indictments of the likes of Russian President Vladimir Putin. An ICC arrest warrant was issued in spring 2023 for Putin – alongside Russia’s Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova – in connection to allegations regarding the unlawful deportation and transfer of children from Ukraine. The Kremlin denies the allegations. ‘[Individuals such as Putin] are never going to be in the courtroom, but they will be able to get some sort of legal decision that will stand for history,’ Sutherland says.

The two cases demonstrate the ICC’s ability to deliver on its mandate, says de Freitas, but they also highlight the Court’s vulnerabilities. ‘It’s a clear sign that if you do not have state cooperation in the process, then it becomes very complicated for you to be effective. It’s a dual message in both cases,’ he says. .

To improve the Court’s functionality, Sutherland says it needs to be properly funded. The majority of its funding comes from the contributions of its member states who, according to research from the University of Illinois Chicago School of Law, underestimate the resources required to effectively investigate atrocity crimes. ‘I also don’t think the ICC is going to be truly free of accusations of bias and selectivity until a Western European or North American leader is in the dock,’ Sutherland adds. To date, no arrest warrants have been issued by the ICC for Western individuals.

For Beauchemin, ‘it’s more a question of making sure that states actually commit to upholding the legitimacy of the Court than what the Court itself could do.’ Principally, members need to avoid ambiguity as to whether they’ll execute ICC arrest warrants against certain individuals.

Beyond these concerns, the US Trump administration has issued sanctions against the ICC – initially via a February executive order aimed at those who engage with or support the Court and targeting its Chief Prosecutor. It has since issued further sanctions against ICC judges and deputy prosecutors. The sanctions are in response to the ICC’s arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Minister of Defense Yoav Gallant, pertaining to allegations about their actions in Gaza. Israel denies the allegations.

The Trump administration says the ICC has unfairly ‘[targeted] America and our close ally Israel’ and that the US doesn’t recognise the Court’s jurisdiction. The ICC says the sanctions are an ‘attack against the independence of an impartial judicial institution.’

The US is reportedly considering imposing sanctions against the entire ICC. ‘That would really seriously hinder the Court’s ability to function,’ says Beauchemin. She explains that an asset freeze means ICC employees would be banned from using US software such as Gmail and that it would apply to lawyers who have collaborated with the Court.

Despite the challenges, the ICC has to be upheld, says Sutherland. The consequence if it’s not, she says, is a world where horrific war crimes aren’t prosecuted.

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