Prosecuting war crimes presents a complex challenge due to a range of legal, political, and practical obstacles. The nature of war crimes, which often occur in chaotic and violent conflict zones, complicates the gathering of reliable testimony and physical evidence. Furthermore, political considerations—such as the interests of powerful nations—can undermine efforts to achieve justice. As a result, many war criminals evade prosecution. Despite the establishment of international bodies, like the International Criminal Court (“ICC”), legal, political, and logistical challenges continue to pose barriers to the pursuit of justice during armed conflicts.
The ICC investigates and tries individuals charged with crimes of concern to the international community in order to hold perpetrators accountable and maintain international peace.[1] Adopted July 17, 1998, the Rome Statute of the International Criminal Court is the Court’s founding treaty that grants the ICC jurisdiction over international cases involving genocide, crimes against humanity, war crimes, and the crime of aggression.[2] After a crime has occurred, preliminary examinations and investigations must take place before any prosecution can proceed.[3] Preliminary examinations require the Office of the Prosecutor to determine whether there is sufficient evidence that a grave crime has occurred, that it falls within the ICC’s jurisdiction, that a state or states are making serious efforts to investigate and prosecute the crime, and that “opening an investigation would serve the interests of justice and of the victims.”[4] If the Office of the Prosecutor is able to establish these factors and identify a suspect, it may request an arrest warrant and a summons to appear from the ICC judges.[5]
If the judges determine that the requirements are met, the case moves into the pre-trial stage, which involves an initial appearance before three judges to confirm the identity of the suspect and ensure that the suspect understands the charges.[6] A confirmation of charges hearing is then held to allow the judges to decide whether there is sufficient evidence to proceed to trial; this hearing may not begin if the suspect has not been arrested or does not appear before the court.[7] At the trial stage, similar to the United States court system, the Prosecution must prove that the accused is guilty beyond a reasonable doubt.[8] Once the judges have reviewed all the evidence, they may issue a verdict and, if the accused is found guilty, impose a sentence of up to 30 years in prison—or, in exceptional cases, life imprisonment.[9] The Prosecutor and the Defense have the right to appeal the Court’s verdict, which is decided by a panel of five new judges.[10] The Appeals Chamber’s decision to uphold, amend, or reverse the Trial Chamber’s is then the final judgment unless a re-trial is ordered.[11] Any guilty sentence, whether issued after a trial guilty verdict or following an appeal that upholds a finding of guilt, is served in countries that have agreed to enforce sentences imposed by the ICC.[12]
War crimes, as defined by the ICC, are serious violations of humanitarian law, which seeks to protect civilians, committed during armed conflicts that lead to individual criminal responsibility and include “torture, mutilation, corporal punishment, hostage taking and acts of terrorism.”[13] Violations of human dignity—such as rape, forced prostitution, looting, and execution without trial—are also covered under the definition of war crimes in order to limit the effects of armed conflicts.[14] War crimes are committed exclusively during times of war against civilians and/or enemy combatants.[15] Crimes against humanity are defined as acts carried out as part of a large-scale or organized assault on a civilian population, including acts like murder, deportation, torture, and rape.[16] The rules of war are set out primarily in the Geneva Conventions, which have been expanded to adapt to evolving conflicts throughout the years since the ratification of the original four treaties.[17] The Geneva Conventions specify what warring nations cannot do during an armed conflict.[18] Most countries have signed the Conventions and have established their own rules for conduct during war that reflect the Geneva Conventions.[19]
The issue, however, is not the existence of rules for war, but the enforcement of those rules. Many governments are reluctant to prosecute their soldiers when they commit war crimes.[20] In response to this reluctance, the ICC exists to investigate and fairly try cases involving the commission of war crimes.[21] A total of 124 countries have ratified the Rome Statute and accepted the ICC’s authority.[22] Unfortunately, many powerful countries, including the United States, have not consented to the Court’s authority due its lack of accountability and concern for political manipulation.[23] Even in the countries that have, the ICC “relies on governments themselves to detain people accused of war crimes and deliver them to the court”, and not all governments cooperate.[24]
Beginning in October 2023, the Israeli Prime Minister, Benjamin Netanyahu, and his then defense minister, Yoav Gallint, committed various crimes, including “the crime against humanity of extermination”, which is the act of killing on a large scale, and “the war crimes of wilful killing and the mistreatment and of the destruction of protected civilian property” in Gaza.[25] Palestinian armed groups and Hamas have also committed the war crimes of torture and inhuman treatment, as well as the crimes against humanity of enforced disappearance and other inhumane acts causing injury and suffering, under orders of Netanyahu.[26] In November 2024, the ICC judges issued arrest warrants for these crimes against Netanyahu, his former defense minister, and a leading Hamas official, Mohammed Deif.[27] These warrants have been rejected by the Israeli government “with disgust” and they refuse to pursue them.[28] However, those accused could be arrested if they travel to any of the ICC’s member states, including the State of Palestine.[29] The key point to emphasize is that the accused could be arrested. These arrest warrants do not necessarily mean the accused will actually face arrest or trial, as the ICC lacks any enforcement power of its own and relies on the cooperation of states to execute these warrants.[30] Additionally, governments connected to the crimes committed by their leaders often try to obstruct international justice by refusing to turn over the accused and labeling the international courts as biased.[31] As long as the accused remain in non-member countries or territories, they can evade arrest warrants.[32] In particular, evasion is relatively simple in a powerful country like Israel, especially while its leader remains in power.[33]
This is not to say that all ICC arrest warrants fail. In March 2025, Philippine authorities arrested former Philippine President Rodrigo Duterte, acting on a warrant issued by the ICC.[34] The ICC had issued the arrest warrant on charges of crimes against humanity in relation to extrajudicial killings committed by Duterte between 2011 and 2019 when he ordered organized and authorized killings by state agents.[35] These killings took place during night raids on homes, where national police officers or their agents would arrest and execute suspects, often after planting evidence.[36] This arrest marks “an encouraging moment for international justice” as the ICC continues to struggle with maintaining support.[37] However, while this arrest is a moment to savor, it goes to show just how difficult prosecuting war crimes and crimes against humanity can be. Many arrest warrants remain unfulfilled for extensive periods, and the court is often only able to prosecute the crimes once the accused have fallen from power and their state’s government no longer has an interest in protecting them.[38]
War crimes and crimes against humanity involve some of the most heinous crimes committed against countless innocent people. While there is some hope in the fact that the ICC is able to punish certain crimes in the sense that some crimes are able to be punished by the ICC, the system ultimately relies on the states to punish and prosecute criminals. Unfortunately, without the possibility of an international policing system, war crimes and crimes against humanity remain difficult to prosecute in a reasonable timeframe—or even at all.
[1] About the Court, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/about/the-court.
[2] How the Court Works, INTERNATIONAL CRIMINAL COURT, https://www.icc-cpi.int/about/how-the-court-works.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] The International Criminal Court, GOVERNMENT OF THE NETHERLANDS, https://www.government.nl/topics/international-peace-and-security/international-legal-order/the-international-criminal-court-icc.
[14] Id.
[15] Id.
[16] Id.
[17] Hurst Herman, What is a war crime, THE CONVERSATION (Jan. 6, 2025, 8:19 AM), https://theconversation.com/what-is-a-war-crime-244005.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] UN Commision finds war crimes and crimes against humanity in Israeli attacks on Gaza health facilities and treatment of detainees, hostages, OHCHR (Oct. 10, 2024), https://www.ohchr.org/en/press-releases/2024/10/un-commission-finds-war-crimes-and-crimes-against-humanity-israeli-attacks.
[26] Id.
[27] Victor Peskin, ICC arrest warrants for Israel’s Netanyahu and Hamas leader doesn’t mean those accused will face trial any time soon, THE CONVERSATION (Nov. 21, 2024, 1:07 PM), https://theconversation.com/icc-arrest-warrants-for-israels-netanyahu-and-hamas-leader-doesnt-mean-those-accused-will-face-trial-anytime-soon-244339.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Andrew Stroehlein, A Historic Step Toward Justice, HUMAN RIGHTS WATCH (Mar. 12, 2025), https://www.hrw.org/the-day-in-human-rights/2025/03/12.
[35] Id.
[36] Id.
[37] Id.
[38] Peskin, supra note 25.
