Every six months the International Criminal Court (ICC) reports back to the United Nations on progress in the two situations it has referred (Libya and Sudan).
This week was the turn – again – of Libya. During the 15 years the ICC has been investigating there have been no cases at the court. So, it was with pride that deputy prosecutor Nazhat Shameen Khan was able to tell states that there was “a new momentum towards justice in Libya” because of an expected transfer of a Libyan suspect arrested in Germany. Although this has yet to happen, the tone was upbeat, painting “a brighter future”, building on the success of new approaches to the migrant crisis in Libya. The fact the authorities in Tripoli have even signed up to the court’s temporary jurisdiction, she said is “a significant moment”.
But the variety of receptions from UN Security Council members was illustrative of the reality of the court’s state of relations with states - from the outright hostility of the United States, which has sanctioned nine individuals at the court including six judges and Khan herself, via Russia’s contempt for a court it says is clearly losing international support with four announced withdrawals from the Rome Statute this year, to the enthusiastic welcome of Slovenia and Sierra Leone to the court’s interactions with Libyan civil society and lauding of the court’s symbolism for the international community’s commitment to accountability.
Calls for a change of leadership
The court’s current existential crisis is not only the pressures of some critical states, but also questions on whether its supporters truly support the ICC’s actions, amid calls for a change of leadership. A long-running investigation into alleged sexual misconduct by the court’s main prosecutor is still ongoing. “The prosecutor has always been the public face of the court” says Mark Ellis, the head of the International Bar Association, and “the gap suggests that the ICC is kind of leaderless”. And while he is careful to say the two deputies are doing a great job for the last six months, the court is “headless at a time when it is needed”.
Staff morale has been severely affected. In the 2025 Staff Engagement Survey, which Justice Info has seen, fewer than half the staff would recommend the ICC as a place to work and less than a third believe the ICC has an open and honest culture. Within the office of the prosecutor less than a quarter would feel safe reporting instances of discrimination, harassment, or abuse of authority, without fear of retaliation. “These findings point to deep systemic challenges in trust and leadership across the Court”, says FIDH in a new position paper.
Sanctions: “People are terrified”
During the annual meeting of the court’s supporters starting this week in The Hague, business goes on as usual, with a main debate leading to a new budget and a merry-go-round of sessions on subjects such as ecocide, the crime of aggression, and sexual violence. Meanwhile, US sanctions, aimed at protecting itself and its allies such as Israel from ICC investigation, are already hitting individuals, and they are having a ripple effect.
For the court itself it’s difficult to quantify. Some technical switches have been reported to have been made away from US-based providers. But little is being made public. The main issue - if the institution faces full sanctions - will be banking and payments. Questions are being asked, says Danya Chaikel, the FIDH representative to the court, on “how to keep the lights on”. “Banks tend to be very over compliant,” says Ellis – needing “absolute certainty” on any potential technical protection being mooted, such as a Europe Commission blocking statute which could serve to reassure companies they would be compensated for any fines.
This threat of potential institutional sanctions has focused minds, says Chaikel, while it has NGO leaders spending a substantial percentage of their time navigating the risks according to Ellis. “People are terrified,” she says. “If you have US nationality, or if you have family in the United States or any connection, the threat of being heavily fined hundreds of thousands of dollars or being imprisoned up to 20 years is no laughing matter”.
What it means to be ‘materially supporting designated individuals or entities’ as outlined in the US order “is not clear cut” says Chaikel. “Grey areas mean people are often over-complying. And of course, it’s not only people, it’s all of the businesses, the insurance providers, banks, IT companies that easily can decide ‘we don’t want to work with anything ICC or Afghanistan or Palestine-related because we certainly don’t want to face secondary sanctions or huge fines from the United States because that’s our biggest market or we’re based there’. So I don’t think we can sugar coat the impact”.
“We’re reacting to it on a case-by-case basis,” says Ellis. But, “what I’m not willing to do is to completely capitulate and to say the safest thing, which I suspect it is, is to shut down all operations and relations to the court and to its personnel. I think that’s a step too far. However, there are risks to that”, adds the head of the IBA, which in incorporated in New York.
“It’s led to layoffs in many NGOs that aren’t designated themselves”, says Chaikel. “People are quitting or just have to be so cautious that it’s changing every single meeting. We have precautions with every single thing we do.” Nevertheless, she says “we are pushing alongside to make sure NGOs can remain operational and continue doing legal work in Europe, which is where the ICC is, that there’s nothing unlawful about documenting potential atrocities and bringing that information to an international court that has 125 states parties, and that should be fully respected and protected by EU member states”.
State non-cooperation on the menu
While the court’s deputy prosecutor was enthusiastic about the prospect of a Libyan suspect being transferred to the court, she said less about Italy’s humiliation earlier this year. The complaint that Italy failed to comply with its obligations is still being considered by the court’s judges. For the first time this year, the ASP will discuss non-cooperation. The prosecutor’s application for arrest warrants against Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant has not had full-throated support even from the court’s most committed states.
Hungary and three African states have announced their withdrawal from the court’s membership. At the annual resolution at the UN general assembly on the ICC, earlier this month, votes in favour dropped by 19 from last year with an increase in abstentions. Hungary, Cambodia, and Fiji - all court members and previous “yes” votes, abstained.
Ellis though points to an earlier declaration by states in the face of US sanctions from the majority of state members that “they will do whatever it’s necessary to ensure that there will be kind of business as usual for the court”. But, he says, it’s like “most scenarios with the Trump administration. That is, you have a pretty stark choice between accepting Washington’s position, or you try to push back, and every state has to go through this”. And he acknowledges that even though some governments have voiced very strong support for the court, “that’s less than half of the number of state parties and some key countries didn’t sign on to that statement”. It is “indicative of the struggle that states are facing”.
Karim Khan disqualified
For the past year, since the ASP president announced that the court’s prosecutor, Karim Khan, was under investigation for alleged sexual misconduct, the details of what may have happened have been splashed across a variety of media outlets. Different camps from within the ICC, supportive or opposed to the prosecutor, have briefed and counter briefed journalists. Also, serious allegations of interference, potentially by foreign agencies, have emerged.
As the ASP approaches, the debate has sharpened into arguments on whether the prosecutor himself should resign and to what extent the court’s credibility is damaged.
Nema Milaninia, formerly an adviser at the US office of global criminal justice writes in Just Security that “what is at stake is the Court’s ability to safeguard its integrity against both internal dysfunction and external manipulation. The issue, therefore, is not merely whether Mr. Khan should be punished, but whether the ICC can credibly function under his continued leadership”. Michael Karnavas, an experienced defence lawyer and a colleague of Khan writes in his blog that “Khan’s continued presence as ICC Prosecutor would be toxic. For all practical purposes, his reputation – and by extension his effectiveness – has suffered irreparable harm. Even if he is fully exonerated of all allegations, he can no longer lead with the moral, professional, and ethical authority required of the ICC prosecutor”.
Beyond the allegations of sexual misconduct, the ICC’s prosecutor has also been disqualified from working on the case against former Philippine president Rodrigo Duterte because he had represented the Philippines Human Rights Commission and has been ordered by judges to recuse himself from the Venezuela investigation, because of a family connection to a member of the Venezuela government legal team.
But as Chaikel points out, no one attending the ASP should expect a full airing of the issues in public, as the sexual misconduct investigation is “the non-issue of the ASP because it’s not on the agenda”. Nevertheless, some diplomats say they plan to address it in their opening statements, recognising that it is one of the pressing issues facing the court going into 2026.
