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\u00a0been issued, targeting very high-profile political leaders across different parts of the world, they mostly remain unexecuted.<\/p>\n
Developed as part of the workshop Reconstructing International Criminal Justice as It Unfolds<\/em><\/u><\/a>, 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\u00a0concludes that the pursuit of high-profile cases and the decisions on unsealing some arrest warrants\u00a0influences this process of reconstruction.<\/p>\n In November 2024, the Committee on Budget and Finance reported<\/u><\/a> to the Twenty-third Session of the Assembly of State Parties (ASP) that\u00a0only three cases were expected to proceed in 2025: Said<\/em> and Yekatom and Nga\u00efssona<\/em> in the Situation in the Central African Republic II, and Abd-Al-Rahman <\/em>in the Situation in Darfur, Sudan. The Court\u2019s calendar was forecasted<\/u><\/a> 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\u00a0Proposed Programme Budget for 2025<\/u><\/a>, the Court acknowledged\u00a0a likely decline in trial activity, noting that pre-trial and appeals phases would remain relatively more active. The decrease in active trials was attributed<\/u><\/a> in part to the \u201cunprecedented pressure\u201d that \u201cthe investigative function of the Office of the Prosecutor [wa]s facing\u201d.<\/p>\n External pressures continue to undermine the ICC\u2019s 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\u20132025 alone, three cases of non-cooperation have occurred: Mongolia\u2019s failure<\/u><\/a> to arrest Vladimir Putin; Italy\u2019s refusal<\/u><\/a> to surrender Omar Elmasry Njeem, followed by his immediate transfer to Libya on a state flight; and Hungary\u2019s invitation<\/u><\/a> to Benjamin Netanyahu. The arrest<\/u><\/a> of former Philippine President\u00a0Rodrigo Roa Duterte in March 2025\u00a0slightly shifted this dynamic, especially given the State\u2019s withdrawal from the ICC less than a decade ago, but the arrest warrant enforcement appeared<\/u><\/a>\u00a0to be driven rather by personal feud within the government than by genuine commitment to the ICC.<\/p>\n The ICC\u00a0has consistently stressed<\/u><\/a> that cooperation in arrest and surrender is \u201cvital for the functioning of the Court\u201d and must be executed \u201cin a timely manner, with due diligence and making use of all reasonable means available\u201d. The Office\u2019s\u00a02024 Policy on Complementarity and Cooperation<\/u><\/a> appears to reflect this approach, aiming to resituate the OTP as a \u201ccentral hub\u201d 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<\/u><\/a>). Moreover, the Court has\u00a0hel<\/u>d<\/u><\/a> that Article 87 Rome Statute \u201cdescribes a fundamental obligation of the requested State, not a discretion\u201d and that this cooperation\u00a0is \u201cmeant to eliminate any impediment to the proceedings before the Court\u201d. To borrow ICTY President Antonio Cassese\u2019s famous statement<\/u><\/a>: the Court is a\u00a0\u201cgiant 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\u201d.\u00a0Against this changing landscape, and with over thirty outstanding arrest warrants, including against sitting heads of State, the risk of systemic failure looms large.<\/p>\n The <\/strong>Prosecutorial <\/strong>Roller Coaster:<\/strong>\u00a0From High-Profile Targets to Low<\/strong>er<\/strong>-Level Offenders and Back Again<\/strong><\/p>\n 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<\/u><\/a> \u20ac63.75 million for the OTP \u2013 a 2.5% increase from the \u20ac62.19 million approved by the Assembly of States Parties (ASP) for 2025, as \u201ca responsible, targeted and forward-looking approach to implementing\u201d the needs of \u201cunprecedented demands on the Office\u2019s investigative function\u201d. In its Twenty-Fourth Session of December 2025, the ASP\u00a0approved<\/u><\/a> a budget of \u20ac63,077 million for the OTP\u00a0and recalled the establishment of a Contingency Fund of \u20ac10 million<\/u><\/a> to ensure, among others, \u201ccosts associated with an unforeseen situation following a decision by the Prosecutor to open an investigation\u201d.<\/p>\n This institutional moment echoes the Court\u2019s\u00a0early 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<\/u><\/a> a \u2018Tadi\u0107\u2019 \u2013 a reference to the ICTY\u2019s first defendant, meaning a lower-level perpetrator who could be swiftly brought before the Court. This approach laid the groundwork for the ICC\u2019s initial focus on African rebel commanders and led to long-standing criticism<\/u><\/a> regarding selective justice and failure to meet victims\u2019 expectations.<\/p>\n This effort also proved unsuccessful:\u00a0the Court\u2019s first trial, against the Congolese warlord Thomas Lubanga, had to be stayed twice and took several years to conclude.\u00a0Subsequent high-profile cases pursued by the OTP, most notably Bemba<\/em> and Gbagbo<\/em>, ended without conviction. This was followed by several years of lower-level prosecutions, during which debates resurfaced over whether the OTP should prioritise<\/u><\/a> lower-level suspects on grounds of enforceability, often citing<\/u><\/a> the Al Mahdi<\/em> 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<\/u><\/a> (see also here<\/u><\/a> and here<\/u><\/a>), Palestine<\/u><\/a>, Afghanistan<\/u><\/a> and the Philippines<\/u><\/a>. A request for an arrest warrant has also been announced in the Situation in <\/u>Bangladesh\/Myanmar<\/u><\/a>.<\/p>\n 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 Je\u00dfberger and Geneuss, 2020<\/u><\/a>). 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.<\/p>\n The value of this approach was implicitly acknowledged in the OTP\u2019s 2012\u20132015 Strategic Plan, which recognised<\/u><\/a> 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 \u201cfirst investigate and prosecute a limited number of mid- and high-level perpetrators\u201d. Accordingly, the 2014 Policy Paper on Sexual and Gender-Based Crimes<\/u><\/a>\u00a0already 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 \u201cmaximise the deterrent impact of the Court\u2019s work\u201d.\u00a0The 2023 Policy on Gender-Based Crimes<\/u><\/a>, 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.<\/p>\n A more explicit focus on senior leadership was adopted already in the 2016\u20132018 Strategic Plan<\/u><\/a>, which embraced a \u201cbuilding-upwards strategy\u201d 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<\/u><\/a>\u00a0established 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 \u201corganisations (including their structures) and individuals\u201d who appear \u201cto be the most responsible for the identified crimes\u201d \u2013\u00a0based 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 \u201cparticularly grave or notorious\u201d\u00a0or where prosecuting them would contribute to building cases against senior figures.\u00a0The 2021 <\/u>Situation Completion Policy<\/u><\/a> further developed this framework by placing the determination of \u201chow many and which cases the Office will ultimately investigate with a view to prosecution in that situation\u201d within the Prosecutor\u2019s broad discretion under Articles 42, 53\u201354, 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.<\/p>\n Eventually, in the 2024 Policy on Complementarity and Cooperation<\/u><\/a>, the Prosecutor recognised that supporting national\u00a0efforts in advancing accountability entails \u201cbuilding cases to support charges directed\u00a0towards those most responsible\u201d. Executing outstanding arrest warrants remained a core priority of the\u00a0OTP:\u00a0the policy clearly stresses that, even after an investigation phase is completed, resources are often reallocated to intensify efforts to apprehend fugitives.<\/p>\n Enforcement or Exposure? The OTP\u2019s Strategic Use of Arrest Warrants<\/strong><\/p>\n 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,\u00a0ICC judges<\/u> allegedly<\/u> ordered the Prosecutor to keep applications for arrest warrants in the Palestine situation confidential<\/u><\/a>, restricting public communication about their existence without prior judicial approval. Concern for secrecy of investigations and for securing the execution of arrest warrants\u00a0prompted the recent introduction of regulation 23 <\/u>ter<\/em><\/u> of the Regulations of the Court<\/u><\/a>, which amends the previous rule on the default publicity of arrest warrants. The rule\u00a0codifies 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,\u00a0or revealing the existence of secret\u00a0or under-seal\u00a0ones against high-profile leaders, may signal a shift toward symbolic deterrence. The use of secret or under seal warrants, combined with intelligence-led cooperation,\u00a0also reflects a more pragmatic approach to securing arrests in cases where political considerations may hinder enforcement.<\/p>\n The Situation in\u00a0Libya clearly illustrates this strategy. Although arrest warrants for both Elmasry and Khaled Mohamed Ali El Hishri were\u00a0kept sealed until execution, their outcomes diverged. Italy, which maintains close ties with Libya\u2019s Tripoli-based government, refused<\/u><\/a> to surrender Elmasry to the Court, despite the warrant\u2019s unsealing. By contrast, German authorities executed<\/u><\/a> 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.<\/p>\n Further evidence of this strategic tailoring can be seen in the unsealing<\/u><\/a>, 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 \u2013unrecognised by both the UN and EU \u2013 may have influenced the decision to make these warrants public. This suggests that the OTP\u2019s 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<\/u><\/a> a warrant against another Libyan suspect, allegedly involved in an operation led by the Libyan National Army in Benghazi, confirming the OTP\u2019s continuing oscillation in its enforcement strategy.<\/p>\n Conclusion<\/strong><\/p>\n Choices regarding whom to target and whether to publicise arrest warrants entail strategic trade-offs that may compromise enforcement prospects and, ultimately, the Court\u2019s legitimacy.\u00a0However, rather than retreating into political pragmatism, the OTP should act strategically by consistently applying an effective case selection policy \u2013 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.<\/p>\n