A Court With No Police Force: How the International Criminal Court Was Designed to Depend on the States It Judges

by Meera Pillai · August 28, 2026

Politics & Policy Editor, The Globe Ledger

A permanent international criminal court is an odd object. Every other criminal court in the world sits inside a state that also owns the police, the prisons and the border posts. The International Criminal Court owns none of those things. It can find facts, issue warrants, confirm charges, run trials and impose sentences; for every physical act required to make any of that real, it has to ask somebody else.

This is the single most important thing to understand about the institution, and it is not a scandal or an oversight. It is the price of existence. A court with its own enforcement arm would have required states to hand over a power no state has ever handed over. What was negotiable was a court that states would voluntarily join and voluntarily serve. The result is an institution whose reach is defined less by its statute than by the willingness of governments on any given morning.

What the Court can reach

The Court's subject-matter jurisdiction covers four crimes. Genocide, defined by the specific intent to destroy a national, ethnic, racial or religious group. Crimes against humanity, meaning grave offences — murder, rape, enslavement, torture, enforced disappearance, apartheid, deportation and others — committed as part of a widespread attack on a civilian population. War crimes, the grave breaches of the law of armed conflict, including the recruitment of child soldiers and attacks on protected persons and institutions. And the crime of aggression, which concerns the use of armed force by one state against another and, unlike the other three, attaches to the conduct of those in a position to direct a state's action; the Court's explanation of its own workings dates the activation of that jurisdiction to 17 July 2018, following an Assembly resolution of 15 December 2017.

Subject matter is only half of it. The Court must also have a jurisdictional hook, and there are only a few. Conduct must have occurred after 1 July 2002, when the Rome Statute took effect. Beyond that, the ICC explains, it may act where the alleged perpetrator is a national of a state party, where the conduct occurred on the territory of a state party, or where a state has otherwise accepted the Court's jurisdiction — or, separately, where the United Nations Security Council refers a situation under Chapter VII of the UN Charter.

That last route is the one that lets the Court reach into countries that never joined it, and it is the reason the ICC's map does not match its membership list. It is also the reason the Court's docket is exposed to the politics of a body where five governments hold vetoes.

Membership itself is substantial but not universal. The Assembly of States Parties reports 125 states parties to the Rome Statute: 33 African states, 28 Latin American and Caribbean states, 25 Western European and other states, 20 Eastern European states and 19 from the Asia-Pacific group. That is around two-thirds of the United Nations membership — and the third that is missing includes several of the world's most populous countries and largest militaries.

Complementarity: the Court is meant to be the second choice

The Rome Statute does not set up the ICC as the world's criminal court of first instance. In the Court's own words, it is "intended to complement, not to replace, national criminal systems" — the principle known as complementarity. The ICC prosecutes only where a state with jurisdiction is unwilling or unable genuinely to investigate and prosecute itself.

That inversion is easy to state and hard to apply. It means a national prosecution, even an imperfect one, can displace the international court, and it means the ICC's prosecutor must make an assessment about the genuineness of another country's justice system — an inherently political judgement dressed in legal language.

The Office of the Prosecutor set out how it approaches this in its Policy on Complementarity and Cooperation, published in April 2024. The paper argues that partnership with states and vigilance over the Office's own mandate have too often been "treated in tension and perceived as in competition, instead of being viewed as mutually reinforcing", and sets out a "two-track approach" in which the Office seeks partnership wherever possible while remaining vigilant of its mandate. It states the relationship with unusual bluntness: "If States step up, the Office will step out. But equally, the reverse is also true: if States do not step up, the Office will not hesitate to fulfil its mandate."

The policy also sets out the active version of the idea — though it does not use the label "positive complementarity" that is often attached to it. Rather than waiting to see whether a national system performs, the Office describes providing training to national judiciaries, increasing the provision of information and evidence relevant to domestic proceedings under Part 9 of the Rome Statute, and offering guidance and assistance in technical fields such as forensic examination, operational security and witness protection, including crime scene analysis, digital forensics and mass grave excavation. The stated logic is partly principled — the paper recalls the Statute's preambular language that the most serious crimes of concern to the international community as a whole must not go unpunished, and the duty of every state to exercise its criminal jurisdiction over those responsible — and partly practical. The Office describes the Court as a permanent institution with a potentially universal vocation but "finite resources".

The three doors, and the one that stays shut

Situations reach the prosecutor by three routes: referral by a state party, referral by the Security Council under Chapter VII, or the prosecutor's own initiative. The third is deliberately constrained — a prosecutor acting alone requires judicial authorisation from the pre-trial judges before opening an investigation.

For the crime of aggression the design is more restrictive again. The prosecutor must first establish whether the Security Council has determined that an act of aggression occurred; if no determination is made within six months of notification, the prosecutor may proceed with authorisation from the Pre-Trial Division. Even then the Court cannot exercise aggression jurisdiction over the nationals or territory of states parties that have not ratified the relevant amendment. Aggression, the crime most directly about state conduct, is the one the states drew the tightest fence around.

Then comes the part no procedural design can solve. The ICC has no police force. It depends on states to make arrests, to transfer suspects to the detention centre in The Hague, to freeze assets, and to hold convicted persons — who serve their sentences in states parties that have concluded enforcement agreements with the Court. Each of those is a discretionary act by a government, and a government that declines to perform it is not immediately punished by anything the Court itself controls.

The consequence is stark, because the Court also refuses to try people in absentia. Its case pages state the rule plainly: the ICC does not try individuals unless they are present in the courtroom. A warrant that is never executed does not become a conviction, or an acquittal, or anything at all. It becomes a file. The Court's own published case records list suspects still at large years after warrants were issued, among them Omar Hassan Ahmad Al Bashir, Abdallah Banda and Walter Barasa.

This is where the arguments about the Court divide, and they are worth stating on their own terms rather than adjudicating. Supporters treat the enforcement gap as a reason to strengthen cooperation obligations, not to abandon the institution: a standing court, they argue, at least makes impunity require an ongoing decision by somebody, and preserves evidence and charges that would otherwise dissolve. Critics in non-member states object that the Security Council referral route can expose their nationals to a court their government never joined, and that a prosecutor assessing whether another country's courts are "genuine" is exercising a political power under a legal name. Critics in some member states, including a number in Africa, have long argued that the Court's caseload reflects where cooperation is obtainable rather than where the gravest crimes occur — a critique the Court's defenders answer by pointing to the referral routes, since several situations arrived at the prosecutor's door by request of the states concerned.

All of those positions are consistent with the same underlying fact. The ICC was built as a conditional institution: powerful on paper, dependent in practice, and calibrated so that states would sign. Judged as a court that enforces its own judgements, it fails by design. Judged as the thing that exists in the space where nothing existed before 2002 — a permanent forum, a standing prosecutor, a set of charges that do not expire when a government changes — it is doing roughly what its drafters agreed to build.