INTERNATIONAL JUSTICE WITHOUT ILLUSIONS: A Realist’s View on the ICC’s Limitations
International criminal justice navigates a delicate balance between aspiration and authority. It invokes the language of universality but functions within a realm shaped by power, sovereignty, and uneven enforcement. This tension is most evident in discussions about the ICC, national prosecutions, and claims that domestic actions “undermine” or “obstruct” international justice.
Starting with the arrest of Nicolás Maduro and the possibility of an ICC sealed arrest warrant, I examine a straightforward yet frequently challenged concept: international criminal law is intertwined with geopolitics rather than existing above it. The ICC was never designed to control power, supersede sovereign jurisdictions, or hold complete accountability. Its authority depends on conditions, its enforcement varies, and its impact is influenced as much by political factors as by legal rules.
Rather than mourning these limitations, I advocate for honest confrontation. This approach does not undermine international justice; it enhances it. The real question is not whether the ICC is important, but what it can practically accomplish, when, and at what expense. Only by discarding comforting illusions can international criminal law establish itself as a credible and lasting endeavor.
This two-part series deliberately transitions from doctrine to delay, then to power, offering a realist perspective on what international criminal justice can—and cannot—accomplish in a world governed by sovereignty and strategic interests. My main argument is that international justice doesn’t fail because national jurisdictions act; it fails when symbolic aspiration is mistaken for real enforcement capabilities. Uneven accountability reflects uneven power, but this does not undermine international law; instead, it grounds it in reality. Naturally, these issues are complex and merit detailed, nuanced analysis, which this brief series cannot provide. Hopefully, however, it encourages discussion on what international criminal law, international criminal tribunals, especially the ICC, can realistically achieve.
There is a possibility that a sealed ICC warrant may already exist for Maduro for crimes against humanity. If this turns out to be the case, it would place the Trump administration – which is sanctioning ICC judges – in the position of holding a high-value defendant and blocking his surrender for the mass atrocities that define his regime’s legacy. The Venezuelan people will keep waiting for justice, that may now not come at all.
Alannah Travers, Justice Info
Seriously?
This framing is emotionally compelling—but analytically superficial.
Assessing a hypothetical sealed International Criminal Court (ICC) warrant for Nicolás Maduro, and the implications of a U.S. law-enforcement or military operation resulting in his capture, requires far more than moral intuition or institutional allegiance. It demands sustained engagement with international law, jurisdictional doctrine, power politics, and the geo-economic realities that shape enforcement. Much contemporary commentary treats these events as though they occur in a vacuum—divorced from sovereignty, strategic interests, and the structural limits of international criminal justice. This approach does not illuminate the problem. It obscures it.
Let us begin with what is known—and what is not. There is currently no public confirmation that the ICC has issued a sealed arrest warrant for Maduro. That fact alone should temper claims that justice is being “blocked.” Even assuming, arguendo, that such a warrant exists, the conclusion drawn by Alannah Travers in Justice Info does not withstand legal or practical scrutiny.
The United States is not a party to the Rome Statute. Its jurisdiction—particularly over transnational narcotics trafficking, conspiracy, and related crimes with a substantial nexus to U.S. territory or interests—is not subordinate to the ICC. International law establishes no hierarchy placing the ICC above national jurisdictions as a matter of automatic priority, still less vis-à-vis non-States Parties.
Nor is this a matter of complementarity in any meaningful sense. Complementarity governs the relationship between the ICC and national proceedings only when both concern the same individual and the same underlying conduct. Its function is jurisdictional and sequential—not hierarchical. Under the Rome Statute, the admissibility inquiry first asks whether the ICC has jurisdiction, then whether a state is investigating or prosecuting the same case the ICC seeks to pursue, and only if that threshold is met does the ICC assess willingness or ability.
U.S. prosecutions for drug trafficking, possession of machine guns, and conspiracy (see Maduro Indictment) do not involve crimes against humanity. They are legally separate offenses, with different elements, evidentiary requirements, and policy objectives. A prosecution based on territorial, protective, or extraterritorial criminal jurisdiction is neither a substitute for nor an infringement on international criminal justice.
Just as an ICC prosecution for crimes against humanity is not invalidated merely because a national court is pursuing unrelated offenses, a national court is not barred from exercising its jurisdiction simply because the ICC may, in theory, be interested in different conduct arising from the same political context. Complementarity does not confer “first dibs,” nor does it impose a duty of abstention where the legal subject-matter does not overlap. It is a doctrine of case identity, not a mechanism for monopolizing accountability.
A clear example highlights this point. After Germain Katanga’s conviction by the ICC for crimes against humanity and war crimes, the ICC Presidency later authorized the Democratic Republic of the Congo to prosecute Katanga nationally for other alleged crimes not included in the ICC case. The Presidency explicitly stated that such proceedings did not violate ne bis in idem (double jeopardy) because they were not the “same case.” This precedent confirms that national prosecutions can proceed alongside—or even after—ICC proceedings, as long as they involve different conduct, even if the same person is involved.
Put simply, the mere possibility of an ICC case does not constrain the United States from exercising its jurisdiction. International law imposes no obligation on a non-State Party to defer to the Court simply because the ICC may at some future point choose to act. In other words, the Rome Statute does not override U.S. law, jurisdiction, or sovereign prerogatives, and it cannot dictate how the United States enforces accountability within its own legal system.
This is where much ICC-centric commentary falters. It often proceeds from the unspoken premise that international criminal justice is a single-track system, with the ICC as its apex and all other accountability mechanisms as secondary or suspect. That is neither how the system was designed nor how it operates in practice.
More fundamentally, this framing ignores the broader geopolitical and geo-economic context in which Maduro’s capture occurred. Venezuela is not merely a human-rights case study. It is a strategic node within a dense web of energy politics, sanctions regimes, narco-economics, regional security dynamics, and great-power competition. U.S. interests in the region—whether one approves of them or not—are neither incidental nor reducible to moral posturing. They are structural, enduring, and consequential—realism in its rawest form.
This reality exists regardless of normative preference. As I have argued elsewhere, the actions of states—particularly powerful ones like the United States—do not merely respond to events; they shape incentives, constrain options, and influence behavior. This is not a matter of endorsement or disapproval. It is a recognition of reality. Any serious assessment of the circumstances surrounding Maduro’s arrest—or, depending on one’s characterization, his abduction—must therefore be grounded in geopolitical and geo-economic awareness, not abstract moral judgment alone.
International law has an essential role in this landscape, but it does not stand apart from it. Enforcement is conditioned by power, incentives, and strategic trade-offs. Analyzing Maduro’s capture solely through the lens of ICC cooperation misses the larger picture entirely.
This is not an attack on the ICC. The ICC holds undeniable normative and symbolic significance, and in certain contexts, it has advanced accountability where none would otherwise exist. It occupies a meaningful place in the architecture of international criminal justice.
That said, the ICC is constrained by structural limitations that no amount of rhetorical embellishment can overcome. Its pace is glacial. Its procedures are uneven. Its institutional credibility has been strained by internal scandals, chronic inefficiencies, prolonged underperformance, and persistent political frictions—both internal and external. Compounding these challenges is a longstanding perception—fair or not—of selective enforcement and uneven geographic focus.
These observations are not expressions of hostility or cynicism. They are empirical features of the ICC’s historical record. A sober appraisal of the ICC requires acknowledging both its achievements and its constraints, rather than insisting that symbolic aspiration can substitute for institutional capacity or geopolitical reality.
Against this backdrop, the suggestion that justice for Venezuelans “may not come at all” because the United States will prosecute Maduro in its federal court is not merely inaccurate—it is conceptually inverted. Justice is not denied because it arrives through a national court rather than The Hague. Accountability through a functioning national system, with custody secured and proceedings underway, is not a betrayal of international criminal law. It is one of the ways justice actually materializes in a world structured by sovereignty.
None of this is to suggest that U.S. actions should escape scrutiny. Serious questions remain regarding the legality of any extraterritorial capture, the scope of head-of-state immunity, and the precedents such actions may set. Those questions merit rigorous, good-faith debate. But they cannot be resolved by assuming that the ICC is the sole legitimate forum for accountability—or that its displacement necessarily amounts to injustice.
Basically, the issues can be summarized into a straightforward analytical framework.
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- Distinct crimes → distinct jurisdictions → lawful parallel or sequential accountability
- ICC interest ≠ automatic priority, particularly vis-à-vis non-States Parties
- National prosecution ≠ obstruction of international justice
- Justice delayed by institutional incapacity ≠ justice denied by alternative forums
- Geopolitics and geo-economics shape enforcement; ignoring them distorts analysis
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The Venezuelan people deserve justice and honesty regarding what international law can realistically accomplish. They should understand the limits of the ICC and recognize that accountability often follows imperfect, politically driven routes rather than ideal legal solutions.
Treating the ICC as a talisman instead of a tool does not promote justice. It mythologizes it.
Next
Part II emphasizes the role of time, delays, and reality. The ICC’s lengthy preliminary investigations, extended inquiries, and slow trials are not just procedural issues; they influence the course of justice. In the Maduro case, years of inaction—even with extensive public records—raise critical questions about institutional capacity, prosecutorial choices, and political caution. Ongoing, selective delays send clear messages. Since the ICC does not have independent enforcement authority, it depends on state cooperation, especially from influential ones. This reliance impacts case selection, timing, and the court’s willingness to take risks. Expecting the ICC to directly police power overlooks its structural limitations. The discussions around Maduro, the ICC, and U.S. enforcement highlight these inherent constraints in international criminal justice, demonstrating that pursuing global justice without acknowledging these realities is neither feasible nor realistic.
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