Weber, the Laws of War and the International Criminal Court

Max Weber defined the modern state as the human community that successfully claims the monopoly of the legitimate use of physical force within a given territory. The formulation, set out in his 1919 lecture "Politics as a Vocation", is not a defence of force: it is a description. What distinguishes the state is not that it is just, but that it has managed to centralise recourse to coercion and have it recognised as legitimate.

That definition carries an uncomfortable consequence for law: a rule is applied, ultimately, because someone with the capacity and authority exists to enforce it. Within the state, that someone is the police, the courts and the prison system. In the international order, no equivalent figure exists with the same clarity, and that is where the problem begins.

The law of war and its enforcement problem

International humanitarian law — the 1949 Geneva Conventions and their Additional Protocols, together with customary law — sets out precise obligations: distinction between combatants and civilians, proportionality in attack, protection of the wounded, prisoners and medical personnel. It is a body of law ratified almost universally; the Geneva Conventions have been adhered to by every state.

Enforcement, however, falls in the first instance to states themselves. The system rests on the obligation to "respect and ensure respect" for the Conventions, on national jurisdiction over grave breaches, and on oversight mechanisms with no coercive power, such as the work of the International Committee of the Red Cross, whose strength lies in confidentiality and persuasion, not sanction.

The International Criminal Court: a court without police

The International Criminal Court, created by the Rome Statute (1998, in force since 2002), tries individuals for genocide, crimes against humanity, war crimes and the crime of aggression. It is a permanent, complementary tribunal: it acts only when the competent state is unwilling or genuinely unable to investigate.

Its design includes a deliberate gap: the Court has no police force of its own. It cannot arrest anyone. When it issues an arrest warrant, execution depends entirely on a state party enforcing it within its own territory, under the cooperation regime of Part IX of the Statute. If no state detains the accused, proceedings remain effectively suspended, because the Court does not try defendants in absentia.

Unenforced arrest warrants

The best-documented case is that of Omar al-Bashir, then president of Sudan, against whom the Court issued arrest warrants in 2009 and 2010, including a charge of genocide in Darfur. For years he travelled to states parties to the Statute without being detained. In 2017, the Pre-Trial Chamber formally found that South Africa had failed to comply with its obligation to arrest him during his 2015 visit, and made similar findings regarding other states. Bashir was overthrown in 2019 by internal Sudanese events, not by the Court's action.

Other warrants have remained pending for long periods, including those issued against sitting leaders. The legal debate turns on head-of-state immunity, the cooperation obligations of states parties, and the position of non-parties; the political debate turns on governments' actual willingness to bear the cost of an arrest.

What mechanisms exist when there is no force

The international system is not entirely without tools, but all of them are indirect and depend on state decisions: Security Council referrals and authorisations — subject to the veto of its five permanent members — economic sanctions and travel restrictions, universal jurisdiction exercised by national courts, ad hoc hybrid tribunals, and the reputational and diplomatic cost of being a wanted fugitive. These are real mechanisms, with verifiable results in some cases, and very unequal ones depending on the power of the individual involved.

The Weberian conclusion is a sober one: as long as no international authority holds an effective monopoly on coercion — and none does, nor is one envisaged — international law functions as a system of obligations whose enforcement is delegated to parties who are sometimes also the ones with an interest in breaking them. That does not make it irrelevant: it sets standards, sustains investigations, shapes alliances and has produced convictions. But it explains why its effectiveness is so uneven.