A Crisis of Governmentality: The Critique of the International Criminal Court ()
1. Introduction
The trajectory of the post-Cold War era was marked by civil unrest, violent conflict, and guerrilla warfare that undermined efforts to promote international peace and security, especially in Africa, the Middle East, and Southeast Europe (Miller 2001; Ferguson 2003). The post-Cold War era has been marked by recurring episodes of intra-state conflict, often accompanied by mass atrocities, including genocide and crimes against humanity. Notable examples include the genocide of the Tutsi in Rwanda, the Srebrenica massacre in Bosnia and Herzegovina, the persecution of the Rohingya in Myanmar, the Yazidi genocide in Iraq and Syria, the genocide of the Isaaq clan in Somalia, and the atrocities committed in Darfur, Sudan. In each of these cases, crimes against humanity, war crimes, and acts of genocide were perpetrated on a devastating scale (Motala, 2018; Zahed, 2021; Hering & Stahl, 2022; Tsilonis, 2024).
The global reaction to these new dimensions of conflict has been shaped by the patterns of international politics, coordinated within the framework of the United Nations (UN). Following the global consensus (a treaty) by the UN General Assembly in July 1998, an international court with the mandate of dispensing justice against genocide, war crimes, and crimes against humanity was created (Fehl 2004). The establishment of the International Criminal Court (ICC) in 2002 as the principal permanent institution for prosecuting international crimes was informed by the experience of earlier ad hoc tribunals, including the Nuremberg and Tokyo Tribunals and the International Criminal Tribunals for the former Yugoslavia and Rwanda.
More than twenty years after its inception, the ICC has delivered justice to affected states and ensured that perpetrators of both local and international laws are held accountable and face the full weight of the law. One of the successes of the ICC is the ability to prosecute individuals and bring to justice and accountability those who are deemed untouchable. The ICC can be credited with convicting several criminals for crimes against humanity, war crimes, and genocide. As Khan and Marwat (2016) observed, the International Criminal Court (ICC) had conducted eight investigations and made six arrests, resulting in one completed trial with a conviction (although it remained subject to appeal) by 2016. As of July 2024, the ICC has significantly expanded its activities: it has charged 64 individuals with war crimes, crimes against humanity, or genocide. Of these, 11 individuals have been convicted. Additionally, the Court has charged eight more individuals with related offences, such as witness intimidation.1 In total, 33 cases have come before the Court, some involving multiple suspects. Alongside the 11 convictions, there have been four acquittals. However, despite these developments, enforcement challenges persist—32 individuals charged by the Court remain at large, highlighting ongoing issues with state cooperation and the ICC’s limited enforcement capacity.2
The ICC has also issued 61 arrest warrants and 9 summonses to appear.3 The success of the ICC has helped to deliver justice and improve the outlook of the transnational legal system. Other successes of the ICC include effectiveness in complementing the national courts, providing states with means to prosecute their criminals by fostering institutional mechanisms to ensure the states’ cooperation with its criminal prosecution, acting as a deterrent to rulers and dictators around the world, and becoming a glimmer of hope for numerous countries facing conflict (Patterson, 2010).
Despite these achievements, the ICC has been criticized for lacking an enforcement mechanism against state parties that refuse to cooperate with the court, non-implementation of pending warrants of arrest, selective prosecutions, a lack of cooperation from member States to the Rome Statute (Phooko, 2011), slow process of indictment, failure to level charges against those perpetrators who have greater chances of being brought to trial, and priviledging the crimes perpetrated by individuals in weak states and overlooked those committed by western imperialist powers (Marler, 1999; Murithi, 2013; Mutua, 2016; Shilaho, 2018; Schneider, 2020; Kumar, 2024).
For instance, the invasion of Iraq was justified by the former US President George W. Bush Jr. and the UK Prime Minister Tony Blair. Despite the heinous crimes against humanity perpetrated by the US and allied soldiers in Iraq, both George W. Bush Jr. and UK Prime Minister Tony Blair were never investigated and indicted by the ICC. These criticisms have constituted important concerns in various quarters about the credibility of the ICC, which many consider a tool of Western imperialist powers.
Furthermore, the activities and role of the ICC as a just arbiter of international criminal justice have come under scrutiny following its failure to resolve the Ukraine-Russia conflict, Israeli occupation of Gaza, and the prosecution of US military personnel over the alleged war crimes in Afghanistan. Critics of the International Criminal Court (ICC) have increasingly questioned the legitimacy of its existence, arguing that it disproportionately targets leaders from weaker or non-Western states while avoiding scrutiny of powerful nations (Walker, 2003; Van Der Wilt, 2011). These concerns call into question the Court’s fairness and effectiveness in delivering impartial justice in the modern international system (García Iommi, 2020).
These criticisms are not merely symptoms of issues within the ICC but instead indicate a crisis. If it is merely a problem, it can be addressed with standard procedures. However, if it is a crisis, it represents a more serious and urgent threat to the ICC’s survival, reputation, or operations. Even if the ICC takes corrective measures and resolves these issues, there is no certainty that the crisis will be averted because these are fundamental problems rooted in its core structure and functioning. Thus, tackling the ICC’s crisis requires recognising it as a crisis of governance, which involves exposing its underlying framework—shedding light on the principles, establishment, and operational methods that define it. Unless the crisis of the ICC is understood as a governmentality crisis, providing appropriate solutions that are permitted within the complex web of global power relationships, where Great Powers have imperialist interests and a system of control, will remain a mirage.
This paper adopts a conceptual legal-political approach to analyse and critique the ICC as a manifestation of a governmentality crisis. The analysis draws on secondary and legal sources, including relevant international legal instruments and existing scholarly literature on international criminal justice and global governance. The case examples are selected purposively rather than as a statistically representative sample, based on their analytical relevance to the paper’s central claims. They are used to illuminate key tensions concerning jurisdiction, institutional independence, state cooperation, enforcement, and legitimacy, and to demonstrate how these dynamics constrain the ICC’s capacity to exercise effective and autonomous authority within the international system.
In doing so, a theoretical framework on governmentality and its applications to the ICC is addressed in Section Two. The broader context in which the governmentality crisis of the ICC occurs will be discussed in Section Three. Section Four covers possible actions. The paper concludes in Section Five.
2. Governmentality and the International Criminal Court
The need for the creation of an independent and permanent international criminal tribunal to end impunity by trying those responsible for heinous crimes was first conceived at the Paris Peace Conference in 1919 (Phooko, 2011). The Rome Statute of the International Criminal Court was adopted on 17 July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held in Rome. Although the conference was convened under the authority of the UN General Assembly, the Rome Statute was not adopted as a UN General Assembly treaty. Rather, it was adopted as a multilateral treaty by states participating in the diplomatic conference (Bassiouni, 1999; Benedetti & Washburn, 1999; Wedgwood, 2001; Newton, 2001). The ICC started functioning on July 1, 2002, following the ratification of the Rome Statute by 60 countries. As of October 12, 2010, 114 States have ratified the Rome Statute. The court has jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression (Gomaa, 2017; Akande & Tzanakopoulos, 2017; Akande & Tzanakopoulos, 2018). The ICC will not replace national courts, but it will supplement them when they are “unwilling or unable” to exercise jurisdiction over the world’s most wanted suspects (Llewellyn, 2001). The reason for establishing the ICC is not only to penalise persons who have committed acts like genocide, crimes against humanity, and war crimes, but also to act as a deterrent to stop such crimes from taking place in the future.
The ICC was founded within the framework of governmentality, emphasising the protection of humanity, individual rights, and the enforcement of human rights and international peace to sustain global order. Michel Foucault introduced the concept of governmentality in his works on Discipline, Punishment, and Power (Foucault, 1973; 1974; 1977; 1986), exploring the cultural shifts that led to changes in Western penal systems from Torture to Prison.
Foucault’s theory of governmentality contested the traditional understanding of power that emphasises force and coercion, and posited that power resides everywhere, especially in “mundane day-to-day practices, dominant languages, obedient and reformed subjects and taken-for-granted irrationalities” (Ferlie et al., 2012: 340). Rather than regarding power as a repressive exercise, displayed by state institutions (like police and law) that involve coercion, punishment, threats, and manipulation, it is seen as “a relationship which was localised, dispersed, diffused, and typically disguised through the social system” (Turner, 1997: xi) operating at a micro-level, especially by social care workers and medical and other professionals, and in everyday practices.
Foucault contended that Western power was more interested in controlling and regulating population through consent, normalisation, and discipline, and this was regarded as “governmentality”. With governmentality, power is not directed towards forcing people to obey the will of the state institutions; rather, power as a means of social control is exercised through subtler means of regulation to produce self-regulating subjects or individuals that modify themselves or construct self (Joyce, 2001; Holmes, 2002; Häkli, 2009; Reich & Turnbull, 2018; Mulubale, 2020). Foucault’s analysis of governmentality reveals how modern society subtly shapes individuals to fit into its structures, often without resorting to overt coercion. This shaping happens not just at the level of physical behaviour, but also at the level of thought and subjectivity4.
Foucauldian analysis of governmentality is driven by four key ideas: Docile bodies (governmentality aims to create “docile bodies” where individuals who are both capable and obedient are easily integrated into the machinery of society); Surveillance (where power is not operated through brute and physical force by institutions, but by technologies that are used to record, survey, monitor, and discipline people in everyday life); Internalisation (where individuals are encouraged to internalize these norms, leading them to regulate their behaviour even in the absence of direct surveillance); and Control (this highlights a shift from overt, brutal forms of punishment like torture to a more subtle system of control that shapes the individual’s behaviour and even their internal sense of self). The extension of the Foucauldian analysis of governmentality from its local level of analysis to the global context, especially in the domain of International Politics, can be seen in the application of these four ideas.
At the global level, international organisations such as the ICC are established with the principle of governmentality to manage, control, and govern the global space that is largely competitive, conflicting, chaotic, unruly, and primarily driven by the pursuit of power among states in an anarchic international system (Beitz, 1979, Waltz, 1979; Powell, 1994; Linklater, 1998; Sjoberg, 2012; Hobson, 2014). The act and role of policing the international system and upholding the norms and values of global politics requires a governmentality mechanism and institution like the ICC. The governmentality that underpins the ICC is premised on two assumptions. The first is that it prevents authoritarian impunity that characterised gross human rights violations, ethnic cleansing, genocide, and other crimes against humanity in the contemporary era, unlike what was obtainable forty years ago. The presence of the ICC serves as a deterrent to any state or government from acting outside the confines of international and domestic laws, and from failing to uphold human rights. This is because any “serious violations and crimes that fall under the jurisdiction of the ICC will be pursued, investigated, and subsequently punished according to the penalties spelt out in Articles 77 and 78 of the Rome Statute” (Samuel, 2017: 3) will not go unpunished. The second is that the governance of the international system requires member-states (parties to the Rome Statute) to uphold the sanctity of international norms and values in protecting individuals’ human rights and upholding international law by cooperating with the ICC, enforcing judgments where appropriate, and taking jurisdiction in the acceptance of sentenced prisoners.
However, these assumptions are not politically neutral, as the Great powers, especially the Western imperialist states, will want to defend their interests and defend their allies when the activities of these international organisations (especially the ICC) conflict with their interests. The Western states formulate and write the international laws and rules and attempt to impose them on other states through international organisations. With governmentality, the ICC aimed to ensure the compliance of smaller states with international law and order by turning them into docile states.
Through the ICC, the activities and actions of weak states are monitored. The presence of the ICC aims to encourage states, especially smaller ones, to adhere to international laws and regulate the behaviour of their state actors. In this sense, the ICC uses its power to influence the behaviours of smaller states. Governmentality concerns how global institutions, particularly the International Criminal Court, shape states, especially weak ones, into compliant and productive subjects through subtle but widespread mechanisms of control by Western imperialist powers to manage their behaviours and positions within the international system. The disciplinary power of the ICC is not overtly coercive or violent, yet it remains highly effective in shaping the behaviour of states within the international system. Through legal norms and institutional authority, the Court influences how states position themselves and frame their perspectives on global justice and accountability. In the global context, the ICC is established to carry out a form of institutionalised surveillance over states, monitoring, controlling, and investigating each state’s compliance with international laws. The ICC’s surveillance structure has been used for several decades to make intra-state and inter-state conflicts more visible, exerting a geopolitical gaze on the activities of states.
In the contemporary era, Western imperialist states can no longer impose their agendas on smaller states through overt force. Instead, they rely on the governmentality of institutions like the International Criminal Court (ICC) to influence and discipline these states. As the sovereignty of each state in the United Nations is guaranteed and sacrosanct, the governmentality of the ICC ensures that such sovereignty is not absolute but weakened. Through the legal and normative power of the ICC, smaller states are subtly transformed into docile actors, compelled to comply with international legal standards that often align with Western interests. This form of power does not operate through direct coercion, but through the persuasive authority of international legal norms, ensuring that the compliance of smaller states with international law does not threaten or undermine the strategic priorities of dominant Western powers. In this way, the ICC functions as a tool of global governance that reinforces Western leadership under the guise of neutrality and justice.
Therefore, establishing the ICC based on governmentality is not immune to politics, as Western imperialist interests shape the foundation, staffing, headquarters, guidelines, and rules that govern its operation, the appointment of judges, and the appointment of the ICC prosecutor. These processes are shaped by politics and mediated by imperialist interests of Western states to ensure that the governmentality of the ICC protects their agenda and hegemony.
There is a concern among some critics that when smaller states resist the influence of powerful Western nations, the International Criminal Court (ICC) may be one of the tools used to investigate and indict their leaders for alleged violations of international laws, particularly those concerning crimes against humanity (Nouwen & Werner, 2010; Schneider, 2020). In this sense, the ICC becomes a conduit and tool through which Western imperialist states influence the smaller states to protect their hegemonic interests.
3. The ICC Crisis as a Governmentality Crisis
Situating the ICC’s crisis as one of governmentality requires a critical examination of what constitutes a governmentality crisis and how the Court’s specific challenges exemplify this condition. The saliency of these questions fundamentally portends an attempt to review the current trajectory of the ICC with a view to understanding why the institution has been slow in achieving its objectives, more than two decades after its establishment. What is a governmentality crisis? A governmentality crisis ensues when an institution or organisation fails or cannot perform its roles effectively and independently due to the structural constraints imposed by the conflicting interests of actors that established it. An institution that fails to perform its governmentality function effectively and autonomously can be understood as experiencing a governmentality crisis. In this study, governmentality is operationally defined in terms of the ICC’s degree of institutional independence and its capacity to exercise its authority autonomously. This includes the extent to which the Court can implement and enforce its decisions without undue reliance on or interference from powerful states, as well as its vulnerability to political influence and manipulation by Western powers.
Furthermore, a governmentality crisis ensues when the conflicting interests and agendas of the Western imperialist states upset the delicate balance of independence of the ICC as an institution. Efforts to preserve institutional independence in role performance are being undermined by the enduring influence of Western imperialist interests. With the governmentality crisis, the principle on which the ICC was established (which is governmentality) has been undermined by the national interests of the Western states that played a leading role in its establishment.
The ICC was never established as a fully independent institution free from political influence; rather, its very creation was shaped by a form of governmentality that reflects and reinforces existing power dynamics within the international system. However, when the ICC wants to assert its disciplinary and governmentality powers independently, outside the influence of Western states, it may face a backlash or pushback in its enforcement and execution (Madsen et al., 2018). In this paper, it is argued that when the ICC investigates, indicts, issues arrest warrants, and prosecutes, it is because the Western imperialist states have a primary interest in such cases, depending on their geopolitical implications. When Western imperialist states have a primary interest, they usually intervene directly or subtly by calling the ICC to investigate the case, aiming to indict the suspected individuals and have them declared wanted. For instance, the issuance of arrest warrants against President Vladimir Putin and Maria Lvova-Belova is political, and not because they were responsible for unlawful deportation and transfer of children during the Russian-Ukrainian conflict; rather, it was because of Western imperialist meddling that wanted to use the ICC to embarrass and put pressure on Russia to end the Special Military Operation in Ukraine. Another example is the blocking of the enforcement of arrest warrants against Netanyahu and his defence minister, Yoav Gallant, for war crimes allegedly committed during the country’s attack on Gaza. By filing an appeal to the ICC, the UK lodged a legal challenge to the idea that the court had jurisdiction over Israeli citizens. It was reported that both Israel and the US, neither of which is a signatory to the ICC, had put pressure on the UK to maintain its objection, warning that dropping it could upset peace negotiations being brokered by Washington.5 The UK, under a new government, later vacated the appeal and dropped its opposition to an international arrest warrant against Benjamin Netanyahu in July 2024, despite pressure from Washington not to do so.6 These cases demonstrate what a governmentality crisis connotes.
Furthermore, the US is not a party to the Rome Statute that established the ICC and does not respect the institution. As a non-member, the United States argued that the ICC has no jurisdiction to try its citizens for war crimes and crimes against humanity in other countries (Turner, 2005). Instead, the United States contends that the ICC lacks jurisdiction over U.S. citizens, whether the alleged crimes are committed domestically or abroad. According to this position, granting such authority to the ICC would undermine the U.S. Constitution and encroach upon the jurisdictional integrity of national courts (Newton, 2001).
The US, while not a member of the ICC, passed the American Service Members’ Protection Act (ASPA) to protect its personnel from the court’s jurisdiction. Despite this, the ICC has ongoing investigations, including one related to alleged war crimes in Afghanistan, which involves U.S. personnel. The implementation of this act by the US government was the revocation of the entry visa for Fatou Bensouda (a former ICC prosecutor), who was investigating the US soldiers for war crimes and crimes against humanity in Afghanistan and Iraq (Ochs, 2019). Also, the US State Department announced new sanctions on two judges and two prosecutors in the ICC for engaging in efforts to prosecute US and Israeli citizens on 20 August 2025. The US Secretary of State Marco Rubio accused the ICC of being a “national security threat” and “an instrument of lawfare” against the US and Israel.7
This case demonstrated that the interest of the United States tends to override the sanctity of values, norms, and the institutional power of the ICC to uphold international laws, and thus is responsible for the governmentality failure of the ICC as an institution that can bark and bite at the small states but can only bark and cannot bite against the powerful states like the US. As a result, the ICC’s governmentality—its ability to regulate and discipline through legal and moral authority—breaks down when confronting powerful states like the U.S. The Court becomes an institution that can both bark and bite when dealing with smaller or weaker states, but when it comes to powerful actors, it can only bark without the capacity to bite. The United States’ imposition of sanctions on ICC judges and personnel—especially in response to investigations and indictments involving Israel—has drawn criticism for undermining the Court’s authority. Yet, other Western powers have remained largely silent, primarily because these sanctions do not conflict with their core geopolitical interests, but reflect a shared strategic alignment with U.S. interests in the region rather than a principled defence of international justice.
However, the ICC may be able to assert its independence and effectively exercise its governmentality—particularly through investigations, indictments, arrest warrants, and prosecutions—when the interests of Western imperialist states are only peripheral or secondary. In such cases, where powerful states have only a marginal stake in a case, the ICC is granted greater latitude to act, faces fewer political obstacles, and allows it to project an image of neutrality and credibility in upholding international legal norms—though such moments may be the exception rather than the rule. The ICC was established by Western powers to promote a particular vision of global order on other nations—often through indirect means—yet these same powers have demonstrated a reluctance to accept the authority and jurisdiction of the institution they helped create.
However, the argument that the ICC crisis represents a governmentality crisis can be further examined in three distinct folds. First, the instrumentality of the ICC is often deployed against individuals who are not in the good graces of Western countries or those who are opposed to Western imperialist interests (Okafor & Ngwaba, 2015). The trial and conviction of former Bosnian Serb leader Radovan Karadžić for genocide, war crimes, and crimes against humanity is a useful case that serves as a deterrent to any country’s leaders who may want to violate the human rights of their citizenry is a useful case to demonstrate this assertion. The Bosnian Serb leaders, such as Radovan Karadžić, Boris Tadić, Gojko Janković, Slobodan Milosevic, and others, are either indicted, arrested, or convicted because they acted outside the interests of the Western imperialist powers in the Balkan region. Furthermore, the recent arrest warrant for Russian President Vladimir Putin in March 2023 was for forcibly transferring thousands of Ukrainian children to Russia following the invasion of Ukraine in February 2022 (Azarov et al., 2023). The ICC arrest warrant was issued at the behest of the Western powers, who are against the Russian invasion of Ukraine. The allegation of child abduction to Russia by the ICC was a smokescreen utilised by the Western powers to move against Putin, who is against the Western imperialist agenda, such as the NATO expansionist agenda to include Ukraine, Georgia, Moldova, and ex-Soviet states, and surround Russia. The centrality of the ICC in Putin’s case is to reinforce the ideological control of Western power in policing the international order in their favour.
Second, the governmentality crisis of the ICC is reflected in who to indict, who to issue an arrest warrant against, when to indict and declare wanted, and whether alleged war crimes should be investigated or not, which is rooted in its selective application and the meddling of powerful Western states that regard the ICC as a tool of geopolitical governance rather than impartial legal enforcement. For instance, in October 2020, young people across Nigeria took to the streets calling for the disbandment of an abusive police unit known as the Special Anti-Robbery Squad (SARS) and for ending brutality in a movement tagged #EndSARS. Security forces, especially the Nigerian military and other security outfits, responded with excessive force, including gunfire, which resulted in death and serious injuries.8 It was reported that the order for the killing of the protesters by the Nigerian Military and other security forces was approved by then-President Muhammadu Buhari. In the petition dated 21 October 2020 and sent to Mrs Fatou Bensouda, Prosecutor, International Criminal Court (ICC), urging her to “promptly investigate reports that Nigerian authorities, military, and some politicians have used/and are using thugs, soldiers and security agents to intimidate, harass, attack and kill #EndSARS peaceful protesters in several parts of Nigeria, including Abuja, Lagos, Edo, Osun, Plateau, and Kano states”9 by Socio-Economic Rights and Accountability Project (SERAP). The organisation said: “The Nigerian authorities over the years have been unwilling and/or unable to prosecute suspected perpetrators of the killing of protesters, which in turn has promoted a culture of impunity and emboldened authorities, the military, politicians and their accomplices who continue to commit human rights crimes against protesters.”10 The ICC Prosecutor did not open a preliminary examination into the petition, which may or may not lead to an investigation of the #EndSars killings.
The plausible explanation for this is that Buhari’s regime was an important ally of the Western Imperialist powers in Africa, who implemented a series of Western-inspired economic reforms under the supervision of the IMF/World Bank in Nigeria. Therefore, indicting and issuing arrest warrants against President Buhari and the military leadership would have triggered a backlash against Western interests by the Nigerian political leadership.
As the ICC failed to investigate crimes against humanity against the Nigerian military, the same ICC announced an investigation into violence that followed Venezuela’s 2017 election. Even though no arrest warrants were issued, the office of ICC Prosecutor Karim Khan announced in late 2021 that he was opening the investigation into the Venezuelan case after a lengthy preliminary probe and an official referral submitted by Argentina, Canada, Colombia, Chile, Paraguay, and Peru in 2018. The decision of the ICC to investigate the Venezuelan case was instigated by the allies of the Western imperialist states in South America to investigate the regime of President Nicholas Maduro, whose socialist policies are fundamentally opposed to Western capitalist interests in Venezuela. The politics of the ICC’s investigation stemmed from the opposition to the election of Nicholas Maduro and an attempt to apply subtle pressure against the implementation of the regime’s socialist policies.
Finally, the ICC is used as a behavioural modification and control mechanism to moderate and change the behaviour of state actors whose interests are opposed to Western interests. For instance, on 21 November 2024, following an investigation of war crimes and crimes against humanity, the International Criminal Court (ICC) issued arrest warrants for two senior Israeli officials, Benjamin Netanyahu, the prime minister of Israel, and Yoav Gallant, the former Minister of Defense of Israel, alleging responsibility for the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts during the Gaza war.11 Issuance of an arrest warrant against the Israeli officials is not because the Western imperialist states opposed the Israeli military campaign in Gaza or were sympathetic to the plight of the Palestinians. The Western imperialist states and their allies supported the Gaza war against Hamas by supplying arms and ammunition to the Israeli state to murder innocent civilians, and engaged in deliberate destruction of the Palestinian homeland and infrastructure in Gaza.
Following widespread public outcry and mass protests in response to the apparent genocidal policies and starvation of Palestinians in Gaza, Western governments came under significant political pressure from their own populations. As a result, many were compelled to call for a ceasefire between Hamas and the Israeli government, led by Prime Minister Benjamin Netanyahu. Despite a ceasefire proposal brokered by mediators from the United States, Egypt, and Qatar—which was accepted by Hamas on 5 May 2024 and endorsed by the United Nations Security Council on 10 June 2024—the Netanyahu regime rejected the agreement. This opposition ultimately contributed to the issuance of arrest warrants by the International Criminal Court for Netanyahu and his defence minister.
The arrest warrant was a psychological attempt to modify the behaviour of Netanyahu’s regime towards the acceptance of the ceasefire agreement. Once the ceasefire agreement was approved and implemented by Hamas and the Israeli cabinet in January 202512, the arrest warrant was never enforced, even though the indictment and arrest warrant remained. Benjamin Netanyahu later visited Hungary (a NATO and ICC member) on a four-day official visit, despite the ICC’s arrest warrant against him over allegations of war crimes in Gaza.13 To further demonstrate how the ICC became a tool of behavioural modification by the Western imperialist interest, the United States in June 2025 imposed sanctions on four judges at the International Criminal Court, including an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, as it ramped up pressure to neuter the court of last resort.
Furthermore, the ICC issued a warrant of arrest for Omar al-Bashir, President of Sudan, on charges of crimes against humanity and war crimes in Darfur on 3rd March 2009. This was the first warrant of arrest ever issued for a sitting Head of State by the ICC. An arrest warrant was issued against Omar al-Bashir because of his opposition to the Western imperialist agenda in Sudan. The Darfur crisis was the pretext to control the behaviour of Omar al-Bashir and coerce him to agree to the Western imperialist agenda. Once Omar al-Bashir accepted the partitioning of South Sudan as an independent state, the arrest warrant was never enforced, even though the indictment and arrest warrant remained. Other examples include the Venezuelan, Russian, and Israeli Presidents and Prime Minister, respectively. The ICC represents a pressure regime and tool utilised by Western states to further their imperialist interests. Applying the instrumentality of the ICC as a soft power to put pressure and force concessions from state actors, who oppose their Western imperialist interests and agenda.
4. Moving Forward
Despite the governmentality crisis that hampers the ICC following the accusations against the ICC for its “unfairness and bias by various parties to the ongoing conflicts which the court has presided over” (Samuel, 2017: 4), the quest to uphold the sanctity of international laws and order is more germane and salient now than before. Even though the ICC may not have performed its roles independently as expected, there is a need to prevent and prosecute the most serious crimes of concern to the international community: genocide, crimes against humanity, war crimes, and the crime of aggression, and hold those responsible for these atrocities accountable for two reasons. First, instances of mass violence are attributable to an absence of international law, leaving power-political interests and the whims of unscrupulous leaders unchecked; and second, holding individual perpetrators to account for their crimes can address the broader phenomenon of violence and atrocity. These objectives could potentially be pursued without relying exclusively on the ICC. If the Court is unable to discharge its functions effectively and independently, particularly where its decision-making and enforcement are perceived to be vulnerable to undue influence from Western powers, questions arise regarding its continued institutional utility and legitimacy. In such circumstances, rather than treating the ICC as the only viable mechanism for international criminal justice, consideration should be given to alternative institutional arrangements. One plausible alternative would be the establishment of five regional criminal courts, which could provide a more decentralised and context-sensitive framework for addressing international crimes while potentially reducing the concentration of authority within a single global institution.
The solution to the governmentality crisis facing the ICC is replacing it with Regional Criminal Courts (RCCs) that have strong international mandates and treaties. RCCs can complement existing international legal frameworks while tackling the specific legal and political challenges of different continents and regions in fighting impunity. In this regard, there should be five RCCs, such as the African Criminal Court (representing the whole of Africa), the American Criminal Court (representing both the South and North American continents), the European Criminal Court (representing the whole of Europe), the Asian Criminal Court (representing the whole of the Asia continent), and the Oceania Criminal Court (representing the whole of Australasia countries). With the governmentality crisis, the ICC can no longer perform its functions and roles without being seen as an appendage of Western imperialist states. The loss of confidence in the ICC can be remedied with the establishment of RCCs under the UN General Assembly mandate and commission to prosecute the continent.
The establishment of Regional Criminal Courts (RCCs) represents a crucial step toward restoring trust and confidence in the international legal system. It offers a pathway for more inclusive participation by all states in upholding international law and maintaining global order. This will eschew the foundational and ideological problems of governmentality that underpinned the ICC. For instance, the African region has led the way in establishing the African Court of Justice and Human Rights, which includes the African Criminal Court (ACC), created under the Malabo Protocol adopted in 2014. The ACC aims to enhance the capacity of African states to prosecute serious crimes and address enforcement gaps in international criminal law, particularly crimes prevalent across the continent (Murungu, 2011; Chernor Jalloh, 2017; Werle & Vormbaum, 2017). The creation of the African Criminal Court (ACC) is often analysed in terms of its complex relationship with the International Criminal Court (ICC). This relationship is shaped by legal, political, and historical tensions, particularly surrounding perceptions of bias, sovereignty, and the pursuit of justice on the continent. While the ICC was established to prosecute the most serious crimes of concern to the international community—namely genocide, war crimes, and crimes against humanity—it has faced sustained criticism from African states for disproportionately targeting African leaders and for allegedly undermining national and regional judicial mechanisms.
In response, the African Union (AU) has taken steps toward establishing the ACC as a regional alternative that embodies African perspectives on justice and accountability. The ACC, envisioned as part of the African Court of Justice and Human and Peoples’ Rights (ACJHPR), aims to expand jurisdiction to include not only international crimes but also transnational crimes such as terrorism, piracy, and corruption. This broader jurisdiction reflects the continent’s unique legal priorities and security challenges.
Although both institutions possess overlapping jurisdiction over core international crimes, the ACC is widely regarded as a regional response to the perceived limitations of the ICC, particularly in its engagement with African states (Ambos, 2013; Agwu, 2014). However, the creation of the ACC also raises questions about its lack of international legitimacy and the absence of a clear mandate to execute its objectives effectively. Unlike the ICC, which was established through the Rome Statute and enjoys broad ratification and support from the international community, the ACC is grounded in the Malabo Protocol—a treaty that has seen limited ratification among African Union member states and is not recognised by the wider international legal order. This lack of widespread legal endorsement limits the court’s authority beyond the continent and raises doubts about its ability to secure cooperation from non-African states or international institutions. This could undermine its ability to carry out arrests, gather evidence across borders, and ensure compliance with its judgments.
Furthermore, these practical limitations are compounded by concerns over political interference and the court’s controversial immunity provisions (which granted immunity to sitting heads of state and senior officials, potentially shielding them from prosecution), as this could undermine its credibility and independence. Due to this issue of international legitimacy, the ACC faces risks and challenges, including politicisation, selective justice, and the potential to undermine peace processes—problems that have long been linked to the ICC.
Circumventing the limitations of the African Criminal Court (ACC) and addressing the governmentality crisis underlying the International Criminal Court (ICC) is vital to establishing Regional Criminal Courts (RCCs) on a firm foundation. This foundation must be built on adherence to robust international mandates and treaties, and anchored within the frameworks of key global institutions such as the UN General Assembly and the UN Security Council, to ensure the legitimacy and effectiveness of RCCs. A special UN General Assembly Commission established by member states will be required to facilitate and process the recruitment of staff, the appointment of judges, prosecutors, and deputy prosecutors, institute a strong legal framework around newly codified crimes, and establish a modus operandi for the implementation of the RCCs. Under the UN General Assembly Commission, nine judges for each of the RCCs should be appointed, with five judges appointed from the region and four judges outside the region to ensure balance and prevent subversion of justice. The prosecutor and deputy prosecutor for each RCC should be appointed outside the region by the UN General Assembly Commission. This will represent a significant step toward strengthening international law and order, rebuilding trust and confidence in international legal institutions, and ensuring the administration of justice without the imprimatur and influence of Western imperialist states.
5. Conclusion
This essay has reviewed the role of the ICC in the contemporary era. The relevance of the ICC can be seen in its ability to uphold the global order, protecting human rights and ensuring the enforcement of international human rights law in fostering accountability and bringing to justice perpetrators of war crimes, genocide, and crimes against humanity, especially when national courts or states cannot or will not prosecute. The utility of the Foucauldian approach has helped to understand the relevance and function of the ICC as a form of governmentality, where states as actors in the international system may be sovereign, but their sovereignty is being constrained by or subjected to the surveillance infrastructure of the ICC. The ICC’s governmentality ensues when it was created as a soft power tool to subtly coerce and influence the smaller states to comply with the international laws and order, particularly on genocide, war crimes, and crimes against humanity by the Western imperialist states.
Over the past two decades, the operations of the ICC have fallen short of expectations, as its activities appear increasingly entangled in conflicting interests aligned with the agendas of Western imperialist powers seeking to maximise their hegemonic influence. Using Foucauldian theory of power, this paper argues that the problems of the ICC reflect a broader crisis of governmentality, where asserting independence in the modus operandi of the institution is being constrained and undermined by the agenda and interests of Western states. A crisis of governmentality emerges when the independent decisions of the ICC conflict with the strategic interests of major Western powers. Therefore, enforcing such decisions—especially those involving indictments, arrest warrants, and prosecutions—often faces significant political and logistical obstacles. The ICC cannot effectively and autonomously perform the governmentality function it was established to undertake due to the intricacies surrounding the agenda and interests of the Western imperialist states in international politics.
Due to the governmentality crisis, the ICC can no longer perform its functions and roles without being seen as an appendage of Western imperialist states, and hence, a growing loss of confidence in the ICC’s decisions over the years. As a potential solution to this impasse, it has been proposed that Regional Criminal Courts (RCCs) be established across different continents under the mandate of the UN General Assembly to replace the ICC. This would help rebuild trust and confidence in the international system for upholding international law and order, while also providing an opportunity for broader participation by all states. The ICC, in its current form, has lost its perceived neutrality as a defender of international law and order. In the absence of Regional Criminal Courts (RCCs), the genuine pursuit of justice and the enforcement of international laws—particularly those concerning genocide, war crimes, and crimes against humanity—risk being undermined by international political dynamics that prioritise the hegemonic interests of Western powers within the global system.
NOTES
1See the report of cases at the ICC. Available at https://www.icc-cpi.int/cases.
2Ibid.
3Ibid.
4In Foucauldian parlance, government means to conduct others and oneself, while governmentality means how to govern others and oneself. Hence, government is an activity that aims to affect, mould, or shape the conduct of an individual or a group, with a view to conducting and regulating the conduct of people (Coyte & Holmes, 2006). Therefore, governmentality involves the “specific ways that individuals and populations are governed at the micro-level, and how particular ‘behaviours’ and ‘performances’ are facilitated and encouraged which reproduce, at a distance, a particular ordered society under prevailing political rationalities” (Prince et al., 2006: 254).
5See the Guardian Newspaper report of 28 June 2024, which reported that the ICC decision on Netanyahu’s arrest warrant may be delayed by the UK. This report is accessible at ICC decision on Netanyahu arrest warrant may be delayed by UK | International criminal court | The Guardian.
6The Guardian newspaper reported on 26th July 2024 that the British Government has dropped its challenge to ICC arrest warrants for Israeli leaders. This report is available at Britain drops its challenge to ICC arrest warrants for Israeli leaders | International criminal court | The Guardian.
7See the BBC report, titled “ICC ‘deplores’ new US sanctions on judges and prosecutors” published on 21 August 2025. Accessible at ICC “deplores” new US sanctions on its judges and prosecutors - BBC News.
8SERAP Drags Nigerian Government, Military to ICC Over Shooting Of #EndSARS Protesters. This petition was reported by the Channel News Nigeria on 21 October 2020. Accessible at
https://www.channelstv.com/2020/10/21/serap-drags-buhari-government-military-to-icc-over-shooting-of-endsars-protesters/.
9Ibid.
10SERAP asks the ICC to probe the deaths of #EndSARS protesters. This petition to the ICC was reported by The Cable Newspaper on 21 October 2020. It can be accessed at
https://www.thecable.ng/serap-asks-icc-to-probe-death-of-endsars-protesters/.
11Gritten, David (21 November 2024). ICC issues arrest warrants for Netanyahu, Gallant, and a Hamas commander for alleged war crimes. Accessible at https://www.bbc.co.uk/news/articles/cly2exvx944o. Date visited 20th August 2025.
12The first stage of the ceasefire agreement made provisions for the release of 33 hostages held by Hamas, in exchange for Israel releasing 30 - 50 Palestinians (starting with children and women) for every Israeli released. The ceasefire agreement also required Israel to allow the Palestinians to access humanitarian aid, allowed displaced Palestinians to return to their homes, and started to make a phased withdrawal from Gaza.
13Israel’s Netanyahu heads to Hungary in defiance of ICC arrest warrant. This was reported by Al Jazeera News on 02 April 2025. The report is accessible at Israel’s Netanyahu heads to Hungary in defiance of ICC arrest warrant | Gaza News | Al Jazeera.