Year XXXVIII, Number 1, March 2025

“I find myself closing this book, born under entirely different circumstances, at a dramatic moment, in the midst of two armed conflict, both characterized by the perpetration of atrocious crimes. Gaza and Ukraine have overwhelmingly brought the role of international (criminal) law back to the forefront and presented demands for justice with respect to which there is an urgent need for a response. The International Criminal Court has suddenly entered the common lexicon, and it is remarkable how much attention, even in the media coverage of the past two years, has been devoted to a subject otherwise considered niche.”

More than two decades after the founding of the International Criminal Court, this book offers a balanced review of an institution that is still young and, in historical terms, taking its first steps. It does not dismiss the technical more legal aspects, but it does not get lost in detail: the background is the international context and the prose is accessible to non-specialists.

Professor, in your book you reconstruct the birth and reasons for the International Criminal Court to be: how was it born? When? Why?

The ICC is an international criminal court that came into being thanks to a treaty signed in 1998 right in Italy, in Rome: the so-called “Rome Statute,” which came into force in 2002. However, the path to its establishment is very long and starts as early as World War II, when it was decided that the atrocities witnessed during the war should and could not go unpunished. Two tribunals were then established for Nuremberg and Tokyo and work was begun on a permanent criminal court, work which, however, remained long blocked due to the climate created during the Cold War. It was only after the fall of the Berlin Wall that the project was concretely revived, also thanks to the impetus of the two ad hoc UN tribunals, for the former Yugoslavia and Rwanda, that the adoption of precisely the Rome Statute was finally achieved.

In the book you explain that the aspiration for universal justice rests on the Court and the idea of the universality of human rights, but equally on states and their ability to incorporate and facilitate international criminal law within their own systems.

Of course, it is the duty of every state not only to promote and defend human rights, but also to punish violations of those rights, which in the most serious cases represent real international crimes. The ICC was created around this idea: it’s a complex architecture based on the pillars formed by national legal systems, as well as on international, covenant and customary law.

Within this framework, each state must do its part, first by adopting the necessary legislation on international crimes, and second by exercising its criminal jurisdiction. Indeed, the ICC is only complementary to states, that is, it intervenes only if the competent national judicial authorities in the exact situation are unable or unwilling to proceed.

Which major countries have not signed the charter? Among them is the United States: what are the consequences of this fact?

There are 124 states that to date are members of the ICC, having ratified its founding treaty. Others, such as Ukraine, have accepted its jurisdiction, even if they have not yet ratified the Statute.

It should be emphasized that all the countries of the European Union are members of the Court and have been a core part of it for a long time, meaning as early as the drafting of the Statute (which like any international treaty was the result of negotiation between states).

Diplomatic delegations from virtually every country in the world were present in Rome at the time, some of which were very committed to the negotiations, such as the United States, which, however, later decided not to ratify the treaty. In addition to the United States and Israel, other large countries in terms of population numbers such as China, India, Pakistan, and Russia, are still outside the ICC, so that today about half of the world's population is in states that are not part of the ICC.

And yet it is necessary to look at this project from a long-term perspective. All in all, 20 years on this horizon is a long time but not a lot, and year after year the number of state parties has grown.

We come now to the decision issued on November 21st. What does it state? What does it imply? What is an international arrest warrant?

In the recent decision cited above, the judges of the Pre-Trial Chamber finally ruled affirmatively on the request for the issuance of an arrest warrant that had been made by the Chief Prosecutor's Office on May 20.

It took six months because the proceedings were very complex and the judges first had to overcome objections that had been raised, particularly by the State of Israel, regarding the court's jurisdiction.

Therefore, the judges first had to clarify that the ICC has jurisdiction over Israeli nationals under the Rome Statute because, although Israel is not a state party to the Court, jurisdiction in such cases is based on a criterion of territoriality, given the alleged crimes have been committed on Palestinian territory.

Let’s not forget that Palestine has been a state party to the Court since 2015. Having posited this, and clarified that Israel's acceptance of jurisdiction is not necessary, the Pre-Trial Chamber, chaired by a French judge and composed of three judges of different nationalities, found that there were “reasonable grounds to consider the commission of serious crimes,” in terms of both war crimes and crimes against humanity, by the Israeli prime minister, the former defense minister, and a member of Hamas, as integrated.

The prosecutor had considered the responsibilities of two additional leaders, political and military, of Hamas and called for their arrest, but they have since been killed. Three arrest warrants were then issued on November 21.

For what reasons can this decision be called “historic”?

It is unprecedented because this is the first time we are witnessing the issuance of an arrest warrant by the ICC for a political leader of an allied and Western-backed country.

 This situation is leading to reactions, in some cases even violent, from of some governments. The reaction of Israel itself is not surprising, nor is that of the United States, both of which have an attitude of substantial opposition (with exceptions, as in the case of Putin) to the Court's work and are not members of it.

Nor is the reaction of Orban's Hungary too surprising, although I would note that it is isolated in Europe in its extremist stance, as evidenced by the recent vote in the UN General Assembly on the resolution declaring (once again) colonies on Palestinian land to be illegal.

It is essential, however, that our governments remain in positions of respect, not only formal but also substantive, to the decision taken by the ICC judges; I am speaking of Italy but in general of all European and non-European countries, Canada, Australia, and all those who strongly wanted the establishment of this court, which is a sign of civilization and which must at this time more than ever be supported and protected.

What is plausible to happen now? What consequences are there on the political level? What on the legal level?

It is really difficult to predict what will happen. On the one hand, I expect that the battle will also continue in the courts, in the sense that I imagine the Israeli government will challenge the judges' decision and try to argue once again that the ICC does not have jurisdiction over Israeli citizens.

The issue has already been twice considered and finally rejected by the ICC judges, in two different compositions, but the procedure gives the state in question the opportunity to resubmit it at this stage, and I believe this will happen in the short term. On the other hand, the battle will continue outside the court proceedings, with undue political interference and pressure on the court in an attempt to delegitimize its work.

On this point, I reiterate, it will be necessary for our governments, particularly those in Europe, to keep the bar straight on the principles of law and the rules they themselves have chosen, and to make it unambiguously clear that the execution of an ICC arrest warrant is a real legal obligation to them and not a matter of political discretion, even when it concerns the leader of an allied country.

* Interview published on November 26, 2024 in il Mulino’s InMacina newsletter.