Men wearing protective gear exhume the bodies of civilians killed during the Russian occupation in Bucha, on the outskirts of Kyiv, Ukraine, Wednesday, April 13. Dozens of bodies of civilians executed by the Russian troops have been exhumed already from the mass grave. AP Photo/Efrem Lukatsky

The widely circulated photos and videos of a mass grave, as well as bodies tied up, shot and casually strewn throughout Bucha, Ukraine, after Ukrainian forces reclaimed the Kyiv suburb from Russian troops, provided a glimpse of the horrors that Russia has inflicted upon occupied areas since it invaded. Meanwhile, in areas outside of their control, Russian forces have indiscriminately shelled civilians: One of the worst episodes occurred when a rocket attack on a train station killed more than 50 people, including many children.

In response, calls to hold Russian officials and fighters criminally accountable have intensified, with President Joe Biden and members of his administration going so far as to accuse Russian President Vladimir Putin of war crimes and calling for him to stand trial at the International Criminal Court or some other venue. Dozens of nations, including the United States, have pledged a windfall of support to the ICC, which many of them had not done for other conflicts before the court.

Until a couple of decades ago, it was unthinkable that former or current heads of state might face prosecution for atrocity crimes — heads of state were long considered immune from criminal prosecution. The arrests of the likes of former Serbian and Yugoslav president Slobodan Milosevic and former Liberian president Charles Taylor, along with the creation of the ICC as the first global and permanent court charged with prosecuting the worst international crimes, challenged this presumption. Yet it is highly unlikely that any suspected war criminals from great powers or the countries they support will land in the ICC’s dock anytime soon. Earlier successes in trying heads of state for atrocity crimes relied on great powers’ cooperation, or at least willingness to not interfere. And Russia, like some other great powers (most notably the United States), has and will do everything it can to shield its officials and fighters from prosecution. So while the accusations against Putin demonstrate how far international justice has come, they also demonstrate how far it still has to go: The system is still biased in favor of powerful states and their interests.

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Before World War II, impunity — the view that neither states nor state officials should be held accountable for atrocity crimes — represented the reigning orthodoxy in world politics. The horrors of the Holocaust led to calls for some form of accountability. After seriously considering the summary execution of German political and military leaders, the Allies settled on the Nuremberg and then Tokyo tribunals to provide international accountability for war crimes and aggressive warfare. The experience of the Nuremberg and Tokyo trials ultimately led to calls to establish a permanent institution to punish aggression and atrocities. Ultimately, however, the project failed to gain steam until after the Cold War, when great powers’ support for ad hoc tribunals in the former Yugoslavia and Rwanda renewed hope that a permanent international criminal court might be possible, as well as more efficient and effective than separate tribunals.

The ICC formally became the first global, permanent criminal court on July 1, 2002, after its founding treaty, the Rome Statute, entered into force. The ICC is revolutionary: Its mandate is to prosecute individuals, including senior political and military leaders, for war crimes, crimes against humanity and genocide. Its founders hoped the court would end impunity for these crimes.

But states — especially great powers — retain at least two important levers of control over the court’s work. First, the ICC is a treaty organization, operating primarily on the basis of state consent. The court lacks that from many great powers — including the United States, Russia, China and India, not to mention regional powers such as Turkey, Egypt, Israel, Saudi Arabia, Pakistan and Indonesia, none of which are members. The ICC has jurisdiction over only the territory and nationals of its member states — and even then, only when they are either unable or unwilling to prosecute international crimes in their own court systems. The only other way a situation can come before the court is if the U.N. Security Council refers it there, or if a nonmember state formally accepts the jurisdiction of the court.

Second, the ICC does not have any enforcement tools of its own. To conduct investigations, ICC officials need an invitation from national authorities; to apprehend suspects, the court must depend on state police and military forces or U.N. peacekeepers; to operate, the ICC relies on annual dues from member states and voluntary contributions. When national authorities are reluctant to turn over evidence or top political and military leaders, great powers’ pressure — or willingness to look the other way — has proved key for advancing investigations and prosecutions.

Former President of Yugoslavia Slobodan Milosevic appears before the International Criminal Tribunal for the former Yugoslavia in The Hague, Netherlands in this image taken from TV Tuesday Oct. 12, 2004. AP File Photo

For example, the Yugoslav Tribunal indicted Milosevic — the “Butcher of the Balkans” — just weeks before the end of NATO’s 1999 campaign in Kosovo. But it took more than two years to secure his transfer: Western pressure, particularly a threat by the United States not to participate in a major aid conference for Serbia, Russia’s decision not to interfere, and reformist forces in Serbian politics helped land Milosevic in The Hague. Likewise, when Taylor was indicted before the Special Court for Sierra Leone in 2003, he secured a comfortable asylum agreement in Nigeria that initially was backed by the United States, the United Kingdom, the African Union, the United Nations and the Economic Community of West African States. Nigeria rescinded the agreement and transferred Taylor to the SCSL only after the United States persuaded it to do so — which, in turn, was prompted by mounting pressure from human rights NGOs and Congress, as well as the election of Ellen Johnson Sirleaf in Liberia.

The ICC’s setup has had at least two important consequences for the court’s functioning and legitimacy, which are on full display in Ukraine.

The court has been extremely reluctant to engage in conflicts like that in Ukraine that might implicate great powers’ nationals or interests. Years ago, Ukraine invited the ICC to exercise its jurisdiction over crimes against humanity and war crimes committed on its territory since November 2013. It took the prosecutor’s office more than five years to conclude that events in Ukraine did in fact merit an investigation. Even still, it was not until a week into Russia’s war in Ukraine — which effectively rendered top Russian political and military officials international pariahs — that current Prosecutor Karim A.A. Khan announced his intent to take steps to open an investigation. He then did that only after an unprecedented 39 ICC member states referred the situation in Ukraine to the court in early March. (Two other ICC member states subsequently joined the referral.)

The prosecutor’s office has also been extremely cautious in its investigations into Russia’s invasion of South Ossetia in Georgia. After launching a preliminary examination in 2008, it was not until 2016 that the ICC decided to open an investigation. And Khan announced an application for arrest warrants for three South Ossetians and a deceased Russian general only after Russia’s invasion of Ukraine.

The ICC has demonstrated a similar reluctance to investigate and prosecute alleged atrocity crimes by the nationals of other great powers besides Russia — especially the United States. Despite intense pressure from the United States, the court ruled in March 2020 that an investigation into suspected war crimes and crimes against humanity in Afghanistan since 2003 could proceed, and that it could encompass alleged atrocities by U.S. forces. In response, the Trump administration ordered diplomatic and economic sanctions on ICC officials, in an effort to deter them from issuing arrest warrants for U.S. officials. (The Biden administration rescinded these sanctions last April.)

Afghan President Ashraf Ghani is seated after his meeting with U.S. President Joe Biden in Washington, June 25, 2021. In an interview aired by the BBC on Thursday, Dec. 30, 2021, Afghanistan’s former president recounts his final hours in office, says he had just minutes to decide to flee and denies an agreement was in the works for a peaceful takeover, disputing accounts of former government officials, Taliban and even a former U.S. negotiator. AP Photo/Alex Brandon, File

Then-Afghan President Ashraf Ghani also requested that the ICC defer its investigation on the grounds that domestic investigations mitigated the need for the court to step in, a point that became moot after the Taliban took over and halted these efforts. Khan subsequently relaunched the investigation in September, but he indicated that it would prioritize alleged abuses by the Taliban and the Islamic State-Khorasan (ISIS-K) and deprioritize “other aspects of this investigation,” namely alleged atrocity crimes by the Afghan National Security Forces, the U.S. military and the CIA.

The ICC’s efforts in Ukraine also demonstrate how important cooperation by great powers is for the court. Khan has repeatedly called for resources and personnel to support investigations in Ukraine, arguing that “the importance and urgency of our mission is too serious to be held hostage to lack of means.” So far, states — including even the United States — have responded, with many pledging money, technology, expertise and personnel. The Biden administration and members of Congress have also begun debating how they might do more to support the court’s work in light of laws that have circumscribed previous administrations’ ability to do so.

But many of these states did not extend similar levels of support for war crimes prosecutions in other war zones, including Darfur, where hundreds of thousands of civilians have perished as a result of violence, disease and starvation, or Libya. Even though a largely unified U.N. Security Council referred both situations to the court (Darfur in 2005 and Libya in 2011), members of the body refused to provide the ICC with funding for either investigation, nor did they subsequently offer much support. Khan cited the “limited resources” available to his office as grounds for focusing his investigation in Afghanistan on the Taliban and ISIS-K (as opposed to U.S. and allied forces), whose alleged crimes are more grave, widespread and ongoing. The unevenness of support for the ICC’s work has led many, including the Coalition for the International Criminal Court, to point out a double standard in the court’s resources that could undermine victims’ ability to see justice done, not to mention erode the court’s legitimacy.

So far, states including Ukraine have been eager to support war crimes investigations of Russian officials and fighters. In the course of its investigations, however, the ICC could also uncover evidence of atrocities by Ukrainian officials (Human Rights Watch has already documented abuses of Russian prisoners of war that could amount to crimes); should it do so, it is unclear whether Ukrainian and other international officials would continue to support the court’s work.

The ultimate reason Putin and other top Russian officials are unlikely to face charges, though, is that national authorities in Russia almost certainly won’t turn them over. The court has faced similar problems apprehending other heads of state, including former president Omar Hassan al-Bashir of Sudan, who has not yet been turned over by Sudan’s transitional government. Pressure from the United States and other great powers — which has proved crucial to apprehending heads of state who stand accused of atrocity crimes — is unlikely to work on Russian officials, who have demonstrated remarkable resilience in the face of unprecedented sanctions.

The ICC was created to bring an end to the presumption of impunity for the powerful. As the crisis in Ukraine makes clear, however, the court is struggling to live up to this mission. If the court is to have any hope of bringing justice for the most heinous atrocities, states — including the United States — must provide sustained support for all of the ICC’s investigations and broader operations, including those that might be directed at their own nationals. As Khan recently observed, “If we seize this moment collectively, if we can fortify the rule of law . . . it is to the benefit not only of this office, or to the ICC, but to the whole international legal order.”

Jacqueline R. McAllister is an associate professor of political science at Kenyon College. She is working on a book about international criminal tribunals in war zones.