On Tuesday 9 June 2026, I was sitting in the office of the NIOD-Institute for War, Holocaust and Genocide Studies, when the hushed tones of rustling pages, tapping keyboards, and mouse-clicks were interrupted by a barking laugh so abrupt that I thought a colleague was choking on his lunch.
The culprit – my friend and colleague Thijs Bouwknegt – was in fact not dying-by-sandwich, but in utter shock at a statement which had just been published by the Presidency of the International Criminal Court (ICC). The Chief Prosecutor Karim Khan had just been referred to the Assembly of States Parties (the management oversight body of the Court) for disciplinary proceedings related to his alleged sexual misconduct while in the Court’s top role.
The statement itself said very little, functioning as a kind of basic signal that ‘we are aware of what is happening in this regard’. What had nearly made Thijs (who has worked in and around international criminal courts and tribunals for more than twenty years) fall out of his historian’s-chair was the opening sentence of the short statement’s final paragraph:
“The Presidency recalls that the International Criminal Court is one of the most significant achievements of human civilisation”
At first, we both laughed that the Court was severely lacking an historian to proofread their press releases, and that as historians we perhaps found the claim to be particularly egregious. But upon reflection, I felt it signalled a different, perhaps more concerning trend than just some ahistorical hyperbole. If one extreme of the view of international criminal law in general, and the ICC in particular, is that its sole purpose is to rack up arrests and convictions (deterrence and retribution); the other extreme is that the Court’s sole purpose is to communicate, and perform justice (through the mere declaration of its action). The former relies only on outcomes. The latter relies only on messaging, and symbolism.
On 9 June, I felt we might have reached the pinnacle of the latter.
“Gift of Hope”
The ICC was established (1998) and came into being (2002) in an era that carried the feeling of a kind of post-crisis stability, possibility, and optimism. It was “a gift of hope to future generations”, according to the then-Secretary General of the United Nations, Kofi Annan.
But already, within even the first fifteen years of the Court’s work, it faced a troubling problem. This ‘gift of hope’ could only ever indict a handful of individuals, and had the ability to arrest an even smaller subset of that already-select group. Add a handful of acquittals and dropped charges into the mix, and this ‘gift’ did not seem so well equipped to deal with mass atrocities after all. In such a context, the discourse, and doctrine, of ‘expressivism’ flourished.
The ICC could not arrest everybody, and certainly could not (and should not) convict everybody. But they could still communicate justice to a broad audience of victims, (potential) perpetrators, societies, and observers alike. Expressivism, which can be defined as the promotion of ideals of equality before the law, truth and justice for victims, accountability, and repair, is an important function of international criminal justice. Without it, courts and tribunals can become a numbers game, where all that matters is convicting as many people as possible, and acquittals – perhaps the best sign of a healthy and robust judicial system – are seen as failures.
A Messiah Complex
In recent years, the increasingly empty court calendar, sanctions against court personnel levied by the President of the USA, Russia’s full-scale invasion of Ukraine, the ongoing genocide in Gaza, and the severe allegations against Khan, have spawned an abundance of articles, reflections, and rallying cries variously lamenting the impending ‘death’ of international (criminal) law, and the ICC in particular.
In the face of a seemingly overwhelming level of global violence, a lack of political support, and a crisis of prosecutorial legitimacy, it is perhaps natural for the Court to want to fight back. If it cannot do so with arrests and convictions, it does so through communication.
But the announcement that the ICC is “one of the most significant achievements of human civilisation” seems to me to have inflated international criminal law’s expressivist function to the point of absurdity. By making such a claim, the ICC’s Presidency somehow casts Court staff as messianic disciples of justice. Given the ongoing withdrawal of Sahelian states parties, amidst claims that the Court is “a tool of neocolonial oppression”, it occurs to me that any whiff of saviourism is something the ICC may want to avoid.
I am one of the first to throw my hands up in frustration at the seemingly unending declarations that international criminal law is dead. International criminal law – as a system – becomes salient in times of crisis. It is therefore, ironically, most often prevalent in the minds of observers, scholars, journalists, affected groups, and even practitioners, when we feel like it is failing, or falling short. While the law and its institutions can deserve criticism, and certainly deserve to be held to account, it is too easy to assert that everything is useless.
But to combat such assertions with a kind of messianic self-congratulation is equally as infuriating, and as damaging. By insisting on such extremes, stakeholders of international justice have created a kind of spiral of absurdity. It is perhaps too predictable for an historian to plead for nuanced, productive, and (historically) contextualised reflections. If that is the case, at least let me plead for the ICC to ask an historian to proofread their press releases.
Lucy J. Gaynor is PhD Researcher at University of Amsterdam and NIOD Institute for War, Holocaust, and Genocide Studies, examining the construction of historical narratives within international criminal trials.
