How the ICC’s enforcement crisis is testing the limits of international justice
By Alexis Anagnostakis Barrister, Athens Bar | Human Rights Officer, European Criminal Bar Association
There is a peculiar kind of law that everyone agrees with and no one enforces.
The International Criminal Court was built on a promise: that the most powerful people on earth — presidents, generals, heads of state — could no longer hide behind their titles when they committed atrocities. The Nuremberg promise, finally institutionalised. A permanent court, 124 member states, a full legal architecture. The Rome Statute entered into force in 2002. It was, genuinely, one of the great achievements of the post-Cold War international order.
And yet, in 2025 and 2026, two sitting heads of state are the subject of ICC arrest warrants. One of them has been rerouting his official aircraft to avoid the airspace of countries that might be obligated to arrest him. The other visited an ICC member state last year. He was welcomed. He left freely. Nobody arrested him.
This is the enforcement crisis of the ICC. It is not a legal problem. The law is remarkably clear. It is a political problem dressed in the clothes of a legal debate — and understanding the difference matters enormously.
The Architecture of a Court Without a Sheriff
The ICC has no police force. It has no army. It cannot walk into a country and arrest someone. It depends entirely on states — specifically, on the 124 states that have ratified the Rome Statute — to arrest and surrender individuals when asked.
Article 86 of the Rome Statute is unambiguous: “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court.” Article 89 is equally plain: when the Court issues a request for arrest and surrender, states parties shall comply.
This is not a soft obligation. It is not a recommendation. It is a binding legal duty, undertaken voluntarily when each state signed and ratified the treaty.
The system, in theory, has a safety valve: Article 87(7) allows the Court to refer non-compliant states to the Assembly of States Parties — the body that oversees the Court — or even to the UN Security Council. The assumption was that the threat of international embarrassment and diplomatic isolation would be enough to keep states in line.
That assumption is being stress-tested as never before.
Putin in Ulaanbaatar
In September 2024, Vladimir Putin — subject to an ICC arrest warrant issued in March 2023 for the alleged deportation of Ukrainian children — visited Mongolia. Mongolia is an ICC member state. It had a legal obligation to arrest him.
Mongolia did not arrest him. Putin attended ceremonies marking the 85th anniversary of a Soviet and Mongolian military victory. He was received with honours. He flew home.
The Court’s response was swift by its own standards. In October 2024, Pre-Trial Chamber II found that Mongolia had violated its obligations under the Rome Statute and referred the matter to the Assembly of States Parties. The ruling was unequivocal: personal immunity, including that of sitting heads of state, is not opposable before the ICC. No waiver from Russia was required. Mongolia had simply broken the law.
What happened next? Mongolia filed procedural challenges. The Assembly “took note” of the non-compliance finding. No concrete action was taken against Mongolia.
The referral mechanism, it turns out, produces reports. Not consequences.
Netanyahu’s Flight Path
The situation with Israeli Prime Minister Benjamin Netanyahu, and former Defence Minister Yoav Gallant, is even more politically charged — and in some ways more legally significant.
In November 2024, the ICC issued arrest warrants for both men, finding reasonable grounds to believe they bore criminal responsibility for the war crime of using starvation as a method of warfare and for crimes against humanity — murder, persecution, and other inhumane acts — committed during the Gaza conflict. The warrant for Netanyahu is the first ever issued against a leader of a Western-backed democratic state.
Israel is not a party to the Rome Statute. But Palestine acceded to the Statute in 2015, and the Court has upheld its jurisdiction over events in Palestinian territory. Israel has challenged that jurisdiction in proceedings that remain ongoing.
Meanwhile, Netanyahu has been navigating — quite literally — the geopolitical map of ICC member states. His official aircraft has taken non-standard routes to avoid French and Spanish airspace. He skipped the World Economic Forum in Davos. When he travelled to New York for the UN General Assembly, the flight path was adjusted accordingly.
This is what impunity looks like in the age of satellite tracking. Not a dark corner of the world, but a calculated itinerary.
The ICC’s warrants remain in force. As of today, every one of the 124 member states is legally required to arrest Netanyahu and Gallant should they enter their territory. Most EU member states have confirmed this obligation publicly. The UK has confirmed it. Switzerland has said the same.
And yet, the warrants have not been executed.
The Immunity Debate: A Legal Smokescreen?
The most common legal objection raised by states reluctant to act is the doctrine of head-of-state immunity. Under customary international law, sitting heads of state enjoy a broad personal immunity before the courts of other states. You cannot, as a general rule, put a serving president in the dock of a national court.
But the ICC is not a national court. It is an international court, created by treaty, whose member states have explicitly agreed — in Article 27 of the Rome Statute — that official capacity shall be irrelevant. The treaty overrides the customary rule, at least between states parties.
The Appeals Chamber settled this in the Al-Bashir proceedings: there is no head-of-state immunity before the ICC. The Court has reaffirmed it in the Mongolia/Putin decision. The legal position, among scholars and judges, is about as settled as international criminal law gets.
The difficulty arises at the intersection of two norms. A state party cannot invoke immunity to refuse cooperation with the ICC. But if a non-state party head of state visits, the procedural tangle of Article 98 — which requires the Court to consider competing treaty obligations — creates genuine legal complexity that states can, and do, exploit as political cover.
France, for instance, suggested that Netanyahu might enjoy immunity because Israel is not a Rome Statute party. The ICC rejected the equivalence. The legal debate continues, but it is increasingly looking like a rationalisation for political choices rather than a genuine unresolved question of law.
What Is Actually at Stake
Here is what concerns me, as someone who litigates before European courts and who has spent years watching the gap between legal text and legal reality.
The ICC was never going to arrest everyone. No court achieves perfect enforcement. What international justice requires — at minimum — is credibility. The sense that the law applies, that impunity is not guaranteed, that the powerful cannot simply schedule their travel around the reach of justice.
That credibility is eroding.
When states comply with ICC warrants against leaders of countries they dislike — and refuse to comply when the leader is an ally — they are not interpreting the law. They are destroying it. They are teaching the world that international criminal law is a weapon to be deployed selectively, not a principle to be applied universally.
Robert Badinter, the great French jurist who dedicated his life to the abolition of the death penalty and the construction of international justice, used to say that the law is the last refuge of the weak against the strong. An international court that only functions when the accused is already weak — already fallen from power, already friendless — is not that refuge. It is a monument to the powerful.
The Rome Statute’s drafters understood this. They built the non-compliance mechanism precisely because they knew that cooperation would sometimes be politically uncomfortable. The question is whether the Assembly of States Parties — the political body of the ICC — has the will to use it as intended, or whether it will continue producing politely worded reports that no one acts upon.
What Should Happen
A few things would make a real difference, without requiring any amendment to the Rome Statute.
First, the Assembly of States Parties needs to move beyond “noting” non-compliance and begin imposing meaningful consequences — suspension of voting rights, public diplomatic pressure, formal referral to the UN Security Council. These tools exist. They are not being used.
Second, states that publicly affirm their obligations — as the UK, Germany, and most EU member states have done regarding the Netanyahu warrant — need to be held to that affirmation. Words are not enforcement. A warrant is not a tweet.
Third, and perhaps most importantly, the legal and human rights community needs to resist the temptation to treat these as purely academic debates. The question of whether a state party arrests a suspect is not, at its core, a question of treaty interpretation. It is a question of political will, and political will is shaped by sustained public and professional pressure.
A Personal Note
I have appeared before the European Court of Human Rights. I have watched cases that took years, sometimes decades, to produce a judgment — and then watched that judgment ignored or minimally implemented. I know that international legal institutions are slow, imperfect, and vulnerable to political weather.
But I also know that every institution that matters was, at some point, fragile. The ECtHR was once dismissed as a paper tiger. The jurisprudence of the Human Rights Committee was once called unenforceable. Institutions earn credibility through accumulation — through the slow weight of consistent application.
The ICC is young. It is twenty-three years old. The question is not whether it has failed — it is whether the states that created it will choose to make it work.
That choice is available. It is just not being made.
Alexis Anagnostakis is a criminal defence barrister registered with the Athens Bar Association (No. 25132), specialising in European criminal law, human rights, and extradition. He is Human Rights Officer and Chair of the Human Rights Committee of the European Criminal Bar Association (ECBA) and a member of the ICC List of Counsel.
