By Lucy Gaynor
On Tuesday 9 June 2026, I was sitting in the office of the NIOD-Institute for War, Holocaust and Genocide Studies, when the hushed tones of rustling pages, tapping keyboards, and mouse-clicks were interrupted by a barking laugh so abrupt that I thought a colleague was choking on his lunch.
The culprit – my friend and colleague Thijs Bouwknegt – was in fact not dying-by-sandwich, but in utter shock at a statement which had just been published by the Presidency of the International Criminal Court (ICC). The Chief Prosecutor Karim Khanhad just been referred to the Assembly of States Parties (the management oversight body of the Court) for disciplinary proceedings related to his alleged sexual misconduct while in the Court’s top role.
The statement itself said very little, functioning as a kind of basic signal that ‘we are aware of what is happening in this regard’. What had nearly made Thijs (who has worked in and around international criminal courts and tribunals for more than twenty years) fall out of his historian’s-chair was the opening sentence of the short statement’s final paragraph:
“The Presidency recalls that the International Criminal Court is one of the most significant achievements of human civilisation”
At first, we both laughed that the Court was severely lacking an historian to proofread their press releases, and that as historians we perhaps found the claim to be particularly egregious. But upon reflection, I felt it signalled a different, perhaps more concerning trend than just some ahistorical hyperbole. If one extreme of the view of international criminal law in general, and the ICC in particular, is that its sole purpose is to rack up arrests and convictions (deterrence and retribution); the other extreme is that the Court’s sole purpose is to communicate, and perform justice (through the mere declaration of its action). The former relies only on outcomes. The latter relies only on messaging, and symbolism.
On 9 June, I felt we might have reached the pinnacle of the latter.
GIFT OF HOPE
The ICC was established (1998) and came into being (2002) in an era that carried the feeling of a kind of post-crisis stability, possibility, and optimism. It was “a gift of hope to future generations”, according to the then-Secretary General of the United Nations, Kofi Annan.
But already, within even the first fifteen years of the Court’s work, it faced a troubling problem. This ‘gift of hope’ could only ever indict a handful of individuals, and had the ability to arrest an even smaller subset of that already-select group. Add a handful of acquittals and dropped charges into the mix, and this ‘gift’ did not seem so well equipped to deal with mass atrocities after all. In such a context, the discourse, and doctrine, of ‘expressivism’ flourished.
The ICC could not arrest everybody, and certainly could not (and should not) convict everybody. But they could still communicate justice to a broad audience of victims, (potential) perpetrators, societies, and observers alike. Expressivism, which can be defined as the promotion of ideals of equality before the law, truth and justice for victims, accountability, and repair, is an important function of international criminal justice. Without it, courts and tribunals can become a numbers game, where all that matters is convicting as many people as possible, and acquittals – perhaps the best sign of a healthy and robust judicial system – are seen as failures.
This opinion was first published in Justice Info