What If The International Criminal Court Never Formed?

The Actual History

The International Criminal Court (ICC) emerged from centuries of halting progress toward establishing mechanisms for international criminal justice. While the idea of a permanent international criminal tribunal had been discussed since the late 19th century, it wasn't until the atrocities of World War II that the first major international war crimes tribunals were established: the Nuremberg and Tokyo trials, which prosecuted Nazi and Japanese leaders for crimes against peace, war crimes, and crimes against humanity.

These ad hoc tribunals, though groundbreaking, were criticized as "victor's justice" and were not part of a permanent legal infrastructure. For decades afterward, Cold War politics prevented meaningful progress toward a permanent international court. It wasn't until the early 1990s, following the end of the Cold War and amid horrific atrocities in the former Yugoslavia and Rwanda, that momentum built again. The UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. While these tribunals demonstrated the viability of international criminal justice mechanisms, their ad hoc nature highlighted the need for a permanent court.

In 1989, Trinidad and Tobago had revived a dormant UN proposal for a permanent international court focused initially on drug trafficking. The UN General Assembly requested the International Law Commission to prepare a draft statute, which was completed in 1994. From 1996 to 1998, the UN conducted preparatory committee meetings, culminating in the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome from June 15 to July 17, 1998.

The Rome Conference proved contentious. Key issues included the court's jurisdiction, the role of the UN Security Council, the definition of crimes (particularly the crime of aggression), and the principle of complementarity (whereby the ICC would only act when national courts were unwilling or unable to do so). Despite these challenges, the Rome Statute was adopted on July 17, 1998, with 120 nations voting in favor, 7 against (including the United States, China, and Israel), and 21 abstentions.

The Rome Statute needed 60 ratifications to enter into force. This threshold was reached on April 11, 2002, and the statute became effective on July 1, 2002. The first judges were elected in February 2003, and the first prosecutor, Luis Moreno Ocampo, was elected in April 2003.

Since its establishment, the ICC has opened investigations into multiple situations, primarily in Africa but also in other regions, including Georgia, Venezuela, and Palestine. It has issued arrest warrants for numerous individuals, including heads of state like Omar al-Bashir of Sudan and Vladimir Putin of Russia. The court has completed several cases, including the conviction of Congolese warlords Thomas Lubanga and Germain Katanga, former Ivorian president Laurent Gbagbo (who was later acquitted on appeal), and Dominic Ongwen of the Lord's Resistance Army in Uganda.

However, the ICC has faced significant challenges, including refusals by some states to cooperate with arrest warrants, withdrawals or threatened withdrawals from the Rome Statute (though some were later rescinded), and persistent criticism from non-member states like the United States, Russia, and China. The court has also been accused of an Africa-centric focus, though it has since expanded its investigations to other regions.

Despite these challenges, as of 2025, the ICC remains the world's first and only permanent international criminal tribunal with the authority to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, representing a watershed development in international justice and the global fight against impunity.

The Point of Divergence

What if the Rome Statute had failed to gain sufficient international support in 1998? In this alternate timeline, we explore a scenario where the diplomatic conference in Rome ended without an agreement to establish the International Criminal Court, fundamentally altering the trajectory of international criminal justice in the 21st century.

Several plausible scenarios could have led to this divergence:

First, the United States' opposition could have been more effective. In our timeline, the U.S. delegation, led by David Scheffer, worked to limit the ICC's independence and jurisdiction, particularly concerning U.S. military personnel. The Clinton administration initially signed the Rome Statute on December 31, 2000, but never submitted it to the Senate for ratification, and the Bush administration later "unsigned" it in May 2002. In an alternate timeline, the U.S. might have mounted a more aggressive diplomatic campaign, persuading more countries to vote against the statute or abstain, preventing the crucial threshold of support.

Second, disagreements over the court's jurisdiction could have proven insurmountable. One of the most contentious issues at the Rome Conference was whether the ICC should have jurisdiction over nationals of non-party states who commit crimes in the territory of state parties. A stronger coalition insisting on explicit consent from non-party states for every investigation could have deadlocked the negotiations.

Third, the role of the UN Security Council could have become a breaking point. In our timeline, a compromise was reached whereby the Security Council could refer cases to the ICC and defer investigations for renewable 12-month periods. However, many states were concerned that this would politicize the court and subject it to the veto powers of the permanent Security Council members. A harder stance from either side on this issue could have derailed the conference.

Fourth, regional blocs might have fractured more severely over key provisions. The "like-minded group" of approximately 60 states, including Canada, Australia, and many European nations, was crucial in pushing for a strong, independent court. Had this coalition splintered over specific provisions, or had regional groups like the Arab states or the African bloc withdrawn support over issues like the definition of crimes or the powers of the prosecutor, the statute might have failed to garner sufficient votes.

In this alternate timeline, the Rome Conference concludes on July 17, 1998, not with the adoption of the Rome Statute by 120 nations, but with a divided vote and a final communiqué calling for "further study and future negotiations" – diplomatic language signaling the failure of the initiative and indefinitely postponing the establishment of a permanent international criminal court.

Immediate Aftermath

Continued Reliance on Ad Hoc Tribunals

With the failure of the Rome Conference, the international community would have been forced to continue relying on ad hoc tribunals to address mass atrocities. The International Criminal Tribunals for the former Yugoslavia and Rwanda were still operational in 1998, but their mandates were limited to specific conflicts.

When violence erupted in East Timor following its 1999 independence referendum, the UN would likely have established another ad hoc tribunal rather than referring the situation to a non-existent ICC. Similarly, the Special Court for Sierra Leone, created in 2002 to address crimes committed during the Sierra Leonean Civil War, would likely have proceeded as it did in our timeline, but with even greater significance as one of the few functioning international criminal justice mechanisms.

This patchwork approach would have continued to face criticism for its selectivity and inconsistency. The creation of each new tribunal would require significant political will, substantial funding, and complex negotiations, making rapid responses to emerging crises nearly impossible.

Impact on the UN System

The failure to establish the ICC would have represented a significant setback for the United Nations and multilateralism more broadly. In our timeline, the ICC, while independent from the UN, complemented the UN's mission and was seen as a crowning achievement of post-Cold War international cooperation.

Without this achievement, UN Secretary-General Kofi Annan, who had strongly supported the ICC, would have faced a major diplomatic disappointment. The UN's Department of Peacekeeping Operations might have developed alternative mechanisms for addressing accountability in conflict zones, perhaps through enhanced peacekeeping mandates that included more robust investigative powers.

The UN General Assembly might have established a working group to continue discussions on international criminal justice, keeping the concept alive while searching for a pathway forward that could overcome the obstacles encountered in Rome.

Coalition for an International Criminal Court

In our timeline, the Coalition for the International Criminal Court (CICC), a network of civil society organizations, played a crucial role in advocating for the ICC's establishment and then for ratifications of the Rome Statute. In this alternate timeline, the CICC would not have disbanded after the Rome Conference's failure but would likely have refocused its efforts.

The CICC might have pursued a dual strategy: advocating for a renewed diplomatic effort to create a permanent court while simultaneously pushing for more robust ad hoc tribunals in the interim. The coalition would have maintained pressure on governments to uphold commitments to international justice, perhaps focusing on regional treaties or institutions as stepping stones toward a global court.

Geopolitical Reactions

The failure of the Rome Conference would have elicited varied reactions from major powers:

United States: The Clinton administration, which had expressed reservations about certain aspects of the ICC but generally supported the concept of international justice, might have proposed an alternative model more amenable to U.S. concerns about sovereignty and protection of military personnel. This might have taken the form of a treaty-based court with more limited jurisdiction or stronger Security Council oversight.

European Union: European nations, many of which were staunch supporters of the ICC, would have been profoundly disappointed. The EU might have responded by strengthening its commitment to universal jurisdiction within domestic courts and possibly by establishing a European regional criminal court with jurisdiction over international crimes committed in Europe or by European nationals.

Russia and China: Both nations, which had concerns about the ICC's potential infringement on sovereignty, would likely have welcomed the Rome Conference's failure while publicly maintaining support for "appropriate" international justice mechanisms under UN Security Council control.

African Nations: Many African states had supported the ICC's creation. Without it, the Organization of African Unity (later the African Union) might have accelerated efforts to establish regional justice mechanisms, possibly creating an African Criminal Court earlier than the controversial African Court of Justice and Human Rights, which only gained momentum in our timeline after accusations of ICC bias against Africa.

Impact on Domestic Legislation

The Rome Statute in our timeline led many nations to incorporate definitions of international crimes into their domestic legislation, even when not directly required by the treaty. Without this catalyst, the harmonization of national laws regarding genocide, crimes against humanity, and war crimes would have progressed more slowly and unevenly.

Some states committed to international justice would still have updated their laws, while others might have maintained outdated definitions or gaps in their legal frameworks. This disparity would have complicated efforts to prosecute international crimes under universal jurisdiction, as legal definitions and procedures would vary more significantly between jurisdictions.

By the early 2000s, the landscape of international criminal justice would have remained fragmented, reliant on political will for each specific situation, and lacking the normative and institutional foundation that the ICC provided in our timeline.

Long-term Impact

Development of Alternative Justice Mechanisms

Without the ICC as a permanent court of last resort, the international community would likely have developed alternative approaches to international criminal justice by the mid-2000s.

Regional Criminal Courts

In this alternate timeline, regional organizations might have filled the void left by the absence of a global criminal court:

The African Union might have established an African Criminal Court by 2005, incorporating international crimes into the mandate of its human rights court. Unlike our timeline, where African criticism of the ICC often stemmed from perceived bias, this African-led institution might have enjoyed greater legitimacy within the continent while potentially facing accusations of protecting political elites.
The European Union could have expanded the jurisdiction of the European Court of Human Rights or created a separate European Criminal Court with jurisdiction over international crimes committed within the EU or by EU nationals.
The Organization of American States might have enhanced the Inter-American Court of Human Rights' mandate to address certain international crimes, particularly in response to ongoing conflicts in Colombia and other parts of Latin America.

These regional courts would have created a multi-tiered system with varying standards, procedures, and political dynamics, leading to inconsistent application of international criminal law across different regions.

Universal Jurisdiction Cases

Without the ICC, national courts exercising universal jurisdiction would have assumed greater importance. Countries with strong universal jurisdiction laws, such as Belgium, Spain, and Germany, would have become key venues for prosecuting international crimes.

However, these efforts would have faced significant political and diplomatic pressures. In our timeline, Belgium amended its universal jurisdiction law in 2003 after diplomatic tensions arose from cases against foreign officials; without the ICC as an alternative forum, Belgium might have faced even greater pressure to limit its law, or conversely, might have maintained broader jurisdiction as one of the few available avenues for justice.

By 2025, universal jurisdiction would likely be more widely utilized than in our timeline, but also more politically contentious, with accusations of judicial imperialism regularly leveled against courts exercising such jurisdiction.

Impact on Major Conflicts and Atrocity Situations

The absence of the ICC would have altered responses to major atrocity situations that emerged in the early 21st century:

Darfur Conflict

In our timeline, the UN Security Council referred the Darfur situation to the ICC in 2005, resulting in charges against Sudanese President Omar al-Bashir and others. Without the ICC, the international response to Darfur would have been significantly different.

The Security Council might have established an ad hoc tribunal for Darfur, but this would have required a separate treaty, funding structure, and administrative apparatus, delaying justice considerably. More likely, given the complexity and cost of creating new tribunals, major powers might have opted for sanctions and diplomatic pressure instead of judicial accountability, potentially emboldening the Sudanese government.

Syrian Civil War

The Syrian conflict, which began in 2011, has seen widespread atrocities that have gone largely unpunished due to Russia's protection of the Assad regime in the Security Council. In our timeline, the ICC has been unable to investigate Syria (not a party to the Rome Statute) without a Security Council referral.

In this alternate timeline, the absence of even the potential for ICC involvement would have further reduced pressure on the Assad regime. However, it might have also spurred more aggressive use of universal jurisdiction by European countries, similar to the German court's 2021 conviction of a former Syrian intelligence officer for crimes against humanity, but on a broader scale.

Myanmar and the Rohingya Crisis

Without the ICC, the legal response to the persecution of the Rohingya would have been substantially weaker. In our timeline, the ICC found a jurisdictional pathway to investigate alleged deportation of Rohingya to Bangladesh (an ICC member state). Without this option, international legal accountability would have been limited to the International Court of Justice case brought by The Gambia against Myanmar for alleged violations of the Genocide Convention – a case focused on state responsibility rather than individual criminal liability.

Evolution of International Law

The absence of the ICC would have profoundly affected the development of international criminal law:

Fragmented Jurisprudence

Without a permanent court developing a unified body of jurisprudence, interpretations of international criminal law would have remained more disparate. Ad hoc tribunals, regional courts, and national courts would each develop their own interpretations of the elements of crimes, modes of liability, and procedural standards, leading to legal inconsistency.

Slower Development of New Crimes

In our timeline, the ICC has helped advance legal understanding of crimes such as sexual and gender-based violence in conflict and attacks on cultural heritage. Without the ICC's prosecutorial strategies and jurisprudence, developments in these areas would have been more limited and inconsistent.

Impact on the Crime of Aggression

The definition and activation of the crime of aggression was one of the most contentious issues in ICC negotiations. In our timeline, ICC member states finally agreed on a definition at the 2010 Kampala Review Conference, with jurisdiction activated in 2018. Without the ICC framework, the crime of aggression might have remained largely theoretical, with few if any prosecutions attempted through other mechanisms.

Global Politics and Power Dynamics

The absence of the ICC would have altered the landscape of global politics in several important ways:

Accountability as a Diplomatic Tool

Without the ICC, powerful states might have more openly used the threat of ad hoc tribunals or support for universal jurisdiction cases as diplomatic leverage against weaker states or political adversaries. The selective application of international justice would have been even more pronounced, with tribunals established only when politically expedient for major powers.

Immunity for Heads of State

The ICC's position that sitting heads of state from member countries are not immune from prosecution represented a significant challenge to traditional notions of sovereign immunity. Without this precedent, the principle of head of state immunity would remain stronger in international law, providing greater protection to leaders accused of atrocities.

Civil Society and Victim Advocacy

Civil society organizations focused on international justice would have developed different strategies in this alternate timeline. Without the ICC as a focal institution, their efforts might have been more diffuse, focusing on multiple venues and mechanisms. Victim participation, which became a hallmark of ICC proceedings, might have been less consistently implemented across different accountability mechanisms.

By 2025, in this alternate timeline, international criminal justice would exist as a loosely connected network of institutions and mechanisms rather than as a system anchored by a permanent court. Justice would be more overtly political, less accessible to victims, and more inconsistently applied, though perhaps more tailored to regional contexts and potentially freed from some of the institutional limitations that have constrained the ICC in our timeline.

Expert Opinions

Dr. Sarah Mendez, Professor of International Law at Georgetown University, offers this perspective: "The failure of the Rome Conference would have represented more than just the absence of a single institution; it would have fundamentally altered the normative landscape of international relations. Without the ICC, we would likely see a much more fragmented approach to international criminal justice, with greater emphasis on regional mechanisms and universal jurisdiction. This might have actually led to more prosecutions in some ways, as states would have been forced to develop stronger domestic and regional alternatives, but it would also mean wildly inconsistent standards and procedures. The notion of ending impunity would remain an aspiration rather than an organizing principle of the international legal order."

Ambassador Thomas Nkosi, former South African diplomat and negotiator at the Rome Conference, suggests: "Had the ICC never been established, African nations would have moved more quickly to develop regional justice mechanisms. The critique that Africa has been unfairly targeted by the ICC would never have emerged, but we might instead be grappling with questions about the effectiveness and independence of regional courts potentially influenced by powerful states within their regions. The African Union might have developed a stronger judicial arm earlier, but would it have pursued cases against sitting heads of state? I'm skeptical. More likely, we would see selective justice based on regional power dynamics rather than the global ones that have influenced the ICC's work."

Professor Elena Vásquez, Director of the Center for International Justice at the University of Barcelona, contends: "Without the Rome Statute and the ICC, we would have lost the powerful concept of complementarity – the idea that the primary responsibility to investigate and prosecute international crimes lies with states themselves, with international mechanisms stepping in only when domestic systems fail. This principle has quietly transformed domestic legal systems, as many countries strengthened their laws and courts to avoid ICC jurisdiction. In an alternate timeline without the ICC, the incentive for domestic legal reform would be significantly weaker, and we would likely see fewer national prosecutions of international crimes. The global fight against impunity would be severely hampered, not just by the absence of the court itself, but by the absence of this transformative pressure on domestic legal systems."