High-Profile Targets, Empty Courtrooms?

2025 opened with an unprecedented challenge for the International Criminal Court (ICC). For the first time in its history, the ICC faced the prospect of having no future trials. While arrest warrants have been issued, targeting very high-profile political leaders across different parts of the world, they mostly remain unexecuted.

Developed as part of the workshop Reconstructing International Criminal Justice as It Unfolds, this blogpost examines the extent to which the Office of the Prosecutor (OTP) of the ICC is adjusting its enforcement strategy to the evolving context of international criminal justice. It concludes that the pursuit of high-profile cases and the decisions on unsealing some arrest warrants influences this process of reconstruction.

In November 2024, the Committee on Budget and Finance reported to the Twenty-third Session of the Assembly of State Parties (ASP) that only three cases were expected to proceed in 2025: Said and Yekatom and Ngaïssona in the Situation in the Central African Republic II, and Abd-Al-Rahman in the Situation in Darfur, Sudan. The Court’s calendar was forecasted to include 80 trial hearing days, down from an average of 369 per year over the past eight years (excluding the 2020 shutdown for Covid-19). In the Proposed Programme Budget for 2025, the Court acknowledged a likely decline in trial activity, noting that pre-trial and appeals phases would remain relatively more active. The decrease in active trials was attributed in part to the “unprecedented pressure” that “the investigative function of the Office of the Prosecutor [wa]s facing”.

External pressures continue to undermine the ICC’s ability to function. In some cases, previously cooperative States have refused to enforce ICC requests or even taken steps to shield suspects. In the timeframe 2024–2025 alone, three cases of non-cooperation have occurred: Mongolia’s failure to arrest Vladimir Putin; Italy’s refusal to surrender Omar Elmasry Njeem, followed by his immediate transfer to Libya on a state flight; and Hungary’s invitation to Benjamin Netanyahu. The arrest of former Philippine President Rodrigo Roa Duterte in March 2025 slightly shifted this dynamic, especially given the State’s withdrawal from the ICC less than a decade ago, but the arrest warrant enforcement appeared to be driven rather by personal feud within the government than by genuine commitment to the ICC.

The ICC has consistently stressed that cooperation in arrest and surrender is “vital for the functioning of the Court” and must be executed “in a timely manner, with due diligence and making use of all reasonable means available”. The Office’s 2024 Policy on Complementarity and Cooperation appears to reflect this approach, aiming to resituate the OTP as a “central hub” tasked with enhancing and coordinating investigative efforts undertaken by national authorities to fight impunity (see also Strategic Goal 4 of the 2026-2029 Strategic Plan). Moreover, the Court has held that Article 87 Rome Statute “describes a fundamental obligation of the requested State, not a discretion” and that this cooperation is “meant to eliminate any impediment to the proceedings before the Court”. To borrow ICTY President Antonio Cassese’s famous statement: the Court is a “giant without arms and legs: it needs artificial limbs to walk and work. And these artificial limbs are state authorities. If the cooperation of states is not forthcoming, [it] cannot fulfil [its] functions”. Against this changing landscape, and with over thirty outstanding arrest warrants, including against sitting heads of State, the risk of systemic failure looms large.

The Prosecutorial Roller Coaster: From High-Profile Targets to Lower-Level Offenders and Back Again

The current situation at the ICC has intensified pressure on the OTP to secure arrests, as its mandate to advance prosecutions, and thereby bring cases before the Chambers, depends on suspects being taken into custody. In its 2026 budget proposal, the Court requested €63.75 million for the OTP – a 2.5% increase from the €62.19 million approved by the Assembly of States Parties (ASP) for 2025, as “a responsible, targeted and forward-looking approach to implementing” the needs of “unprecedented demands on the Office’s investigative function”. In its Twenty-Fourth Session of December 2025, the ASP approved a budget of €63,077 million for the OTP and recalled the establishment of a Contingency Fund of €10 million to ensure, among others, “costs associated with an unforeseen situation following a decision by the Prosecutor to open an investigation”.

This institutional moment echoes the Court’s early days. In the early 2000s, the Court issued arrest warrants against high-profile figures such as al-Bashir and Gaddafi, but these were never executed. Judges then urged the first Prosecutor to find a ‘Tadić’ – a reference to the ICTY’s first defendant, meaning a lower-level perpetrator who could be swiftly brought before the Court. This approach laid the groundwork for the ICC’s initial focus on African rebel commanders and led to long-standing criticism regarding selective justice and failure to meet victims’ expectations.

This effort also proved unsuccessful: the Court’s first trial, against the Congolese warlord Thomas Lubanga, had to be stayed twice and took several years to conclude. Subsequent high-profile cases pursued by the OTP, most notably Bemba and Gbagbo, ended without conviction. This was followed by several years of lower-level prosecutions, during which debates resurfaced over whether the OTP should prioritise lower-level suspects on grounds of enforceability, often citing the Al Mahdi case as a model, despite its outcome being shaped by a guilty plea. Since 2023, however, the OTP has increasingly pursued high-profile political and military leaders, for instance in the Situations in Ukraine (see also here and here), Palestine, Afghanistan and the Philippines. A request for an arrest warrant has also been announced in the Situation in Bangladesh/Myanmar.

International criminal justice extends beyond securing convictions; arrest warrants are also meant to function as tools of enforcement and as credible deterrents (on the theoretical approaches to international punishment see Jeßberger and Geneuss, 2020). Yet, amid waning state cooperation, the OTP may feel compelled to focus on cases with a higher likelihood of enforcement, potentially reverting to the pursuit of lower-profile suspects to ensure courtroom activity.

The value of this approach was implicitly acknowledged in the OTP’s 2012–2015 Strategic Plan, which recognised that the evidentiary requirements necessary to establish the responsibility of the most senior perpetrators might sometimes compel the Office to revise its existing strategy of prosecuting those most responsible for committing international crimes. The OTP acknowledged that it may “first investigate and prosecute a limited number of mid- and high-level perpetrators”. Accordingly, the 2014 Policy Paper on Sexual and Gender-Based Crimes already underscored how evidentiary standards and the principle of complementarity limit prosecutions, and noted that under certain conditions, the OTP may also target mid- or lower-level individuals in order to “maximise the deterrent impact of the Court’s work”. The 2023 Policy on Gender-Based Crimes, which replaced the previous policy, further developed this approach by clarifying that establishing the responsibility of commanders, superiors, or remote (co-)perpetrators for sexual, reproductive, and other gender-based crimes does not entail a higher burden of proof, nor necessarily greater evidentiary challenges, than for physically proximate perpetrators.

A more explicit focus on senior leadership was adopted already in the 2016–2018 Strategic Plan, which embraced a “building-upwards strategy” that prioritised investigations against mid- and high-level perpetrators as a step toward bringing the most responsible individuals to trial. Accordingly, the 2016 Policy Paper on Case Selection and Prioritisation established that one of the core criteria for case selection was the degree of responsibility of alleged perpetrators. In line with Regulation 34(1) of the Regulations of the OTP, the Prosecutor is instructed to focus on “organisations (including their structures) and individuals” who appear “to be the most responsible for the identified crimes” – based on the nature of the conduct, the extent of participation and intent, the presence of discriminatory motives, the abuse of power or official capacity, and the mode of liability. Lower-level perpetrators may be targeted only where their conduct is “particularly grave or notorious” or where prosecuting them would contribute to building cases against senior figures. The 2021 Situation Completion Policy further developed this framework by placing the determination of “how many and which cases the Office will ultimately investigate with a view to prosecution in that situation” within the Prosecutor’s broad discretion under Articles 42, 53–54, and 58 Rome Statute. According to the policy, this discretion is to be exercised in line with a Situation Strategy formulated at the outset of the investigation and refined over time, without explicitly referring to any prioritisation based on the hierarchical level of alleged perpetrators.

Eventually, in the 2024 Policy on Complementarity and Cooperation, the Prosecutor recognised that supporting national efforts in advancing accountability entails “building cases to support charges directed towards those most responsible”. Executing outstanding arrest warrants remained a core priority of the OTP: the policy clearly stresses that, even after an investigation phase is completed, resources are often reallocated to intensify efforts to apprehend fugitives.

Enforcement or Exposure? The OTP’s Strategic Use of Arrest Warrants

Despite the general confidentiality of ICC arrest warrant proceedings, the Prosecutor retains discretion to publicise applications where this may serve deterrent purposes. Nevertheless, in April 2025, ICC judges allegedly ordered the Prosecutor to keep applications for arrest warrants in the Palestine situation confidential, restricting public communication about their existence without prior judicial approval. Concern for secrecy of investigations and for securing the execution of arrest warrants prompted the recent introduction of regulation 23 ter of the Regulations of the Court, which amends the previous rule on the default publicity of arrest warrants. The rule codifies the confidential-filing practice and foresees that applications are, by default, secret (concealed from all actors except those operationally necessary) or under seal (non-public but disclosed to limited actors), unless a Chamber decides to publicise warrants when this may interrupt crimes, deter further offences, or enhance arrest prospects. Issuing public arrest warrants, or revealing the existence of secret or under-seal ones against high-profile leaders, may signal a shift toward symbolic deterrence. The use of secret or under seal warrants, combined with intelligence-led cooperation, also reflects a more pragmatic approach to securing arrests in cases where political considerations may hinder enforcement.

The Situation in Libya clearly illustrates this strategy. Although arrest warrants for both Elmasry and Khaled Mohamed Ali El Hishri were kept sealed until execution, their outcomes diverged. Italy, which maintains close ties with Libya’s Tripoli-based government, refused to surrender Elmasry to the Court, despite the warrant’s unsealing. By contrast, German authorities executed the arrest of El Hishri shortly after the unsealing of his warrant, indicating a more cooperative attitude toward the ICC. These contrasting outcomes suggest that the OTP must reassess its approach to intelligence engagement, even with States Parties, and carefully weigh the political context before making unsealing decisions.

Further evidence of this strategic tailoring can be seen in the unsealing, in October 2024, of six arrest warrants against Libyan members of the Al Shaqaqiat tribe in connection with crimes committed during the military operation in Tarhunah. Their affiliation with the Benghazi-based authorities –unrecognised by both the UN and EU – may have influenced the decision to make these warrants public. This suggests that the OTP’s strategy in Libya is adapted to the specific authorities with whom it is engaging: while cooperation with Eastern factions permits public disclosure, figures linked to the internationally recognised government in Tripoli, such as Elmasry, may require a more cautious and confidential approach. Following the political turmoil in Libya over the summer, in August 2025 the Court unsealed a warrant against another Libyan suspect, allegedly involved in an operation led by the Libyan National Army in Benghazi, confirming the OTP’s continuing oscillation in its enforcement strategy.

Conclusion

Choices regarding whom to target and whether to publicise arrest warrants entail strategic trade-offs that may compromise enforcement prospects and, ultimately, the Court’s legitimacy. However, rather than retreating into political pragmatism, the OTP should act strategically by consistently applying an effective case selection policy – one that prioritises mid- to high-level suspects over politically expedient targets. While the Office has in the past acknowledged the possibility of extending the focus to lower-level perpetrators, this was never meant to replace the pursuit of those most responsible of international crimes. Similarly, not all arrest warrants can be made public; even when aimed at achieving deterrence, the OTP must assess whether keeping them secret or under seal is necessary for investigative purposes, including considerations of political expediency.

Given its limited jurisdiction and resources, the ICC cannot avoid making choices about whom to prosecute and which warrants to disclose. These choices are inherently political – but they are not inconsistent with the Court’s broader mission. Indeed, the ICC is not only a forum for delivering justice to individual victims; it is also a symbolic institution, tasked with reinforcing international criminal justice. In this light, the strategic use and communication of arrest warrants play a crucial role in shaping perceptions of the Court’s effectiveness and legitimacy. Public arrest warrants can advance this goal, especially when aimed at high-profile suspects. At the same time, their secrecy may sometimes be necessary for investigative or political reasons, making it essential that decisions on whom to prosecute and the strategies employed are communicated clearly to the international community to strengthen its support.

What merits scrutiny, then, is the lack of transparency surrounding prosecutorial choices. The OTP should move toward greater openness – not by prematurely seeking unsealing of arrest warrants that could jeopardise investigations, but by offering clear explanations for the strategic decisions behind such requests. Through such engagement, the Court can strengthen both its legitimacy and the broader foundations of international criminal justice.