Maria Emmanouil & Myrsini Spyrou: Given your distinguished service as a judge both at the European Court of Human Rights and at the International Criminal Court, how would you describe the main differences in the judicial role within these two institutions, and what insights have you gained from this unique experience?

Iulia Motoc: The main difference between the European Court of Human Rights and the International Criminal Court lies in responsibility. At the European Court of Human Rights, responsibility is attributed to the State: the Court evaluates how a contracting party has breached its obligations under the European Convention on Human Rights. The ICC, on the other hand, focuses on individual criminal responsibility, and the judge must ensure that the highest standards of evidence are met in order to determine whether a person is guilty or innocent.

Even though, at the European Court of Human Rights, we dealt with many criminal cases, the Court does not examine the question of criminal responsibility as such, except in exceptional circumstances. This is because it is not a court of first instance, as we say with regard to the European Court of Human Rights. Rather, it examines the proceedings at the level of criminal responsibility in order to determine whether the Convention was properly applied by the State, by the national jurisdiction, and whether the individual received a fair trial or not. That is the difference.

At the ICC, by contrast, we act as a court of first instance in criminal cases—often very complex criminal cases—where we must determine criminal responsibility on the basis of a very high standard of evidence, and under considerable difficulty, given the extreme complexity of the crimes. Because of this fundamental difference between the two courts, there is more judicial lawmaking in the European Court of Human Rights. The ECtHR very often acts as a pioneer; it relies on its case law in order to interpret the Convention dynamically ‘in light of present-day conditions’, according to the living instrument doctrine.

This is a central doctrine of the European Court of Human Rights, even though over the past 10 to 15 years it has been significantly contested. A number of states have argued that we must return to subsidiarity, that we must grant more authority to the member states and to their own interpretations. Nevertheless, the living instrument doctrine—and the fact that the Court continues to develop and evolve norms, as we see, for instance, in the recent Grand Chamber climate change case[1]—remains a defining characteristic of the European Court of Human Rights. It also exerts influence on other international human rights bodies, such as the Inter-American Court of Human Rights and the UN Human Rights Committee at the United Nations level. This represents a major difference from the International Criminal Court. At the ICC, we operate within a treaty-based framework, and our role is to interpret and apply the Rome Statute[2] in strict adherence to the principle of legality. We are dealing with pure criminal law—highly sensitive areas—where fundamental principles such as in dubio pro reo and other legality principles apply throughout. We must therefore exercise the utmost caution, including with regard to all forms of evidence. Therefore, we cannot speak here of lawmaking or of creativity in the same way as we might in the context of the European Convention on Human Rights.

Another very important difference concerns admissibility and procedure. At the level of the European Court of Human Rights, we deal with a massive number of cases, and admissibility is determined through a filtering process. This is a very strict system of assessing admissibility, introduced by Protocol No 14 to the ECHR. Only a small proportion of cases proceed beyond this stage; it is largely an administrative process, overseen by the judges.

At the ICC, particularly in the Pre-Trial Chamber, where I am currently serving, the Chamber evaluates the interests of justice, and the transition from the investigation phase to the trial phase. We do not have a filtering system in the same sense as at the ECtHR. Rather, we assess admissibility and determine whether the interests of justice are satisfied. It is therefore entirely different. The European Court of Human Rights handles an enormous volume of cases, whereas the ICC deals with comparatively few.

In general, the two courts have much in common. Both are grounded in the protection of human rights. I have already mentioned the principle of legality, and we must also refer to the principle of a fair trial, which is shared by both courts. In this respect, there is a cross-fertilization of standards, particularly from the European Court of Human Rights to the ICC. At the same time, when dealing with massive human rights violations that may amount to crimes before the European Court of Human Rights, the Statute of the ICC becomes highly relevant. Another common feature is that both courts seek to combat impunity—more directly and explicitly in the case of the ICC, but it remains a shared objective.

A further important point is that both courts serve as bridges between legal traditions. The International Criminal Court faces particular challenges in the field of criminal law, as international criminal law must reconcile civil law and common law traditions. We must constantly consider how to combine these approaches and ensure that they function together in the service of justice.

Similarly, the European Court of Human Rights also operates across different legal traditions. Its member states include countries influenced by the Anglo-Saxon system—not only the United Kingdom, but others as well—alongside those rooted in civil law traditions. Moreover, several member states come from the former communist legal tradition, and certain elements of that background still resonate within their legal systems.

Maria Emmanouil & Myrsini Spyrou: How does the ICC navigate the complexities of overlapping proceedings with national and regional courts to minimize fragmentation and ensure that its actions are complementary rather than duplicative?

Iulia Motoc: I believe this is indeed the central question for the International Criminal Court. The ultimate objective of international criminal justice should be to reach a point where the Court no longer needs to conduct trials, because all proceedings take place at the domestic level. From the outset, the guiding principle of the ICC has been complementarity.

The creation of the Court was an ambitious project. In order to secure the support of states, it was necessary to emphasize  complementarity, and to clarify the relationship between national criminal justice systems and justice at the international level. The fundamental question was: why do we need international justice? Why, at the end of the 1990’s, did we need a permanent court to deal with genocide, crimes against humanity, and war crimes? The answer was clear: because some states are either unable or unwilling to address these crimes themselves.

This relates directly to the issue of fragmentation—how to avoid it. One dimension concerns the relationship between national and international jurisdictions; another concerns the relationship between international criminal law and general international law. Let me begin with complementarity.

Article 17 of the Rome Statute of the International Criminal Court[3] establishes this principle. It is the cornerstone of the ICC system, as the Court is a court of last resort. Under Article 17, a case is inadmissible where a state is genuinely investigating or prosecuting it, unless that state is unwilling or unable to do so.

There are key elements here. First, the investigation and prosecution must be genuine—not a sham proceeding or a show trial designed merely to satisfy the international community. Second, for the ICC to intervene, the national jurisdiction must be either unwilling or unable to act.

‘Unwilling’ refers to situations where the state possesses the necessary legal framework and judicial mechanisms but lacks the political will to proceed, for example because of interference with the judiciary. ‘Unable’ is often more common in situations before the Court: the judicial system may be destroyed or so weakened that it cannot effectively conduct criminal investigations or determine criminal responsibility.

Complementarity is also supported by the ‘same person, same conduct’ test. To avoid duplication, the Court examines whether national authorities are prosecuting the same individual for the same alleged conduct. If they are, the ICC must in principle step back. If the person is being tried domestically for different crimes, that does not satisfy the test. The proceedings must concern the same conduct.

In its 2024 Policy on Complementarity and Cooperation[4], the Court emphasized a two-track approach: remaining vigilant in fulfilling its mandate while also working in partnership with national and regional mechanisms. The ICC currently engages with more than forty jurisdictions, promoting the harmonization of legal interpretations, reducing discrepancies between systems, and encouraging the adaptation of domestic criminal codes in line with the Rome Statute framework. A comparable logic can be observed at the European Court of Human Rights through the principle of subsidiarity and the doctrine of the margin of appreciation. Where matters can be addressed effectively at the national level, the Court exercises restraint. That principle, however, has been more contested than complementarity.

Fragmentation also concerns the relationship between international criminal law and general international law. This is a particularly sensitive area. The Court has been careful to preserve the specificities of international criminal law as lex specialis, while ensuring that it does not depart from the general principles of international law referred to in Article 21 of the Statute[5].

Maria Emmanouil & Myrsini Spyrou: How do you envision the future development of international criminal law at the ICC, particularly in light of emerging global challenges such as cyber operations, environmental crimes, or accountability for non-state actors?

Iulia Motoc: This is indeed a crucial question. The International Criminal Court, like other jurisdictions—and perhaps even more than most—is actively trying to address the three issues you mentioned.

In December 2025, the ICC adopted a policy on cyber-enabled crimes[6]. Importantly, the Court clarified that it will not prosecute ordinary cyber-crimes, such as hacking or fraud. Instead, the focus is on cyber-enabled crimes that facilitate genocide, crimes against humanity, or war crimes—for example, disrupting civil infrastructure or inciting violence via digital platforms. Cyber-crimes are therefore a very concrete concern for the ICC, perhaps more so than for other international courts, because these crimes increasingly involve digital weapons that can inflict substantial harm on civilians.

Understanding and preventing these harms is critical. Humanitarian law faces growing challenges in this domain, and the Court must pay attention to how atrocities—including genocide and other crimes against humanity—can be facilitated digitally. For example, incitement to genocide can now occur online, which requires new methods of monitoring and evidence collection.

To address this, the Office of the Prosecutor has begun integrating digital evidence-gathering tools, such as OTP Link[7] and Project Harmony[8], to manage the digital transformation of investigations. These tools allow the Prosecutor to collect, analyze, and then transfer evidence to the Court. While this modernization primarily concerns evidence management, proving intent in cyber-enabled crimes remains highly complex. The doctrine in this area is still developing.

A second challenge is environmental crimes. Today, environmental issues are central to international criminal law, alongside cyber issues. At the ICC, there is a growing ecocide movement—a coalition of states advocating for the inclusion of ecocide as a stand-alone crime in the Rome Statute. Many states feel that the current coverage under crimes against humanity is insufficient; they seek a distinct category for environmental destruction.

In parallel, the ICC has launched a strategic plan for 2026–2029[9], which includes a policy by the Office of the Prosecutor on prosecuting Rome Statute crimes with environmental dimensions, such as the destruction of water and food systems. This is critical, especially for vulnerable populations, including indigenous communities. However, prosecuting such crimes is complex because many of the actors responsible are legal persons, which poses challenges under the current framework that targets only natural persons.

This brings us to the third issue: accountability for non-state actors. Under the Rome Statute, only persons can currently be prosecuted[10]. While some national jurisdictions, such as France and Sweden, are moving toward corporate executive accountability, the ICC has not yet adopted such mechanisms. This limitation makes it difficult to address crimes involving corporations, particularly environmental crimes, where corporate entities may play a central role.

Thus, cyber-enabled crimes, environmental crimes, and accountability for non-state actors represent interconnected and pressing challenges. Without reform—particularly in recognizing ecocide as a stand-alone crime—it will remain difficult for the ICC to respond effectively to these emerging threats.

Maria Emmanouil & Myrsini Spyrou: From your perspective, what are the primary challenges that the ICC must address over the next decade, both in terms of legal doctrine and operational effectiveness?

Iulia Motoc: In terms of legal doctrine, one of the central challenges is addressing the impunity gap. A key issue here is the crime of aggression. As you know, the crime of aggression was incorporated into the framework of the Rome Statute of the International Criminal Court through the 2010 Kampala amendments[11]. However, it is subject to a different jurisdictional regime from the other core crimes, and this creates structural limitations.

For example, if acts of aggression are committed by nationals of a state that is not a party to the Statute, the International Criminal Court may lack jurisdiction over the crime of aggression. This limitation became particularly evident in the debate surrounding accountability for aggression in Ukraine following the 2022 invasion. There were extensive discussions at the UN and EU levels about whether the matter should remain within the ICC framework or whether a separate mechanism should be established. Ultimately, the Council of Europe took steps toward a distinct arrangement. Whether this will function effectively remains to be seen, but it reflects the recognition of a jurisdictional gap.

This demonstrates the need to revisit the Kampala framework in order to align the jurisdictional regime for aggression more closely with that applicable to the other core crimes, and to encourage broader ratification of the amendments. In my view, this is one of the central challenges facing the Court today, particularly as instances of alleged aggression continue to arise while the ICC remains constrained in its capacity to address them.

Another related challenge concerns the adaptation of international criminal law to modern developments, including cyber operations. These issues are becoming increasingly urgent. In this regard, I am organizing a conference with the European Society of International Law at the Court to explore how international criminal law can respond to such developments.

Operationally, the Court also faces what is often described as an arrest crisis. The ICC cannot conduct full trials in absentia. Recently, for the first time in more than twenty years since the issuance of an arrest warrant, a Pre-Trial Chamber conducted confirmation of charges proceedings in absentia, although the trial itself cannot proceed without the accused being present. The Court therefore depends fundamentally on state cooperation for the execution of arrest warrants. At present, many warrants remain unexecuted. This is a serious structural challenge, even though enforcement ultimately lies beyond the Court’s own control.

At the same time, there have been recent arrests. I am currently presiding over confirmation of charges proceedings concerning suspects arrested in the past two years, including the former President Rodrigo Duterte of the Philippines[12] and Mr. Al-Kani from Libya[13]. Nevertheless, numerous arrest warrants remain outstanding.

Another important issue is the internal coherence and unity of the Court—the relationship among the Prosecutor, the Registry, and the judges—and the commitment to a genuinely victim-centered approach. It is easy to affirm that the ICC is victim-oriented; the real challenge lies in implementation. In particular, greater attention must be given to victims of sexual and gender-based violence. Although such crimes are prevalent in many of the situations before the Court, they are often more difficult to prove. They require sensitive evidence, protection of witnesses, and considerable resources. There is sometimes a tendency to prioritize charges that are more straightforward to establish. As a result, gender-based crimes risk being insufficiently addressed, despite their gravity.

If the Court is to remain faithful to its mandate, it must not only declare itself victim-centered but also ensure, in both theory and practice, that victims—especially those of sexual and gender-based violence—receive effective protection, recognition, and justice.

Maria Emmanouil & Myrsini Spyrou: Based on your experience, what are some examples of key legal precedents set by the ICC that have shaped international criminal law?

Iulia Motoc: As the principal permanent institution in this field, the International Criminal Court has played a significant role in shaping international criminal law. From its very first case, the Court began to define its jurisprudence. I had the privilege of serving as a UN Special Rapporteur in 2003 in relation to the Lubanga case in the Democratic Republic of the Congo[14]. In the Prosecutor v. Thomas Lubanga Dyilo, the Court addressed the recruitment and use of child soldiers. This was the first case before the ICC, and it resulted in a conviction. The enlistment and use of children under the age of 15 in hostilities was confirmed as a war crime. Although the prohibition existed, this was the first conviction by an international court specifically on that basis.

Another landmark case concerned the destruction of cultural heritage. In the Prosecutor v. Ahmad Al Faqi Al Mahdi[15], the Court dealt for the first time with the intentional destruction of religious and historical monuments. The judgment affirmed that cultural heritage represents the soul of a community, and that its destruction constitutes a war crime. Although cultural destruction has affected many communities, it had rarely been prosecuted as such at the international level. This was therefore a very important development.

Gender-based crimes have also marked important steps in the Court’s jurisprudence. In the Prosecutor v. Bosco Ntaganda[16], the Court addressed sexual and gender-based crimes in a significant manner. Similarly, in the Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud[17], the issue of gender persecution was examined. However, in Al Hassan there was no majority finding on gender persecution. As I mentioned earlier, such crimes are often extremely difficult to prove, and practical constraints—including arrests and the length and complexity of trials—may limit the extent to which all charges can be fully adjudicated.

The question of command responsibility was central in the Prosecutor v. Jean-Pierre Bemba Gombo[18]. Although Mr. Bemba was ultimately acquitted on appeal[19], the case significantly contributed to the clarification of this doctrine.

Returning to Lubanga, the Appeals Chamber also delivered the first judgment on reparations, establishing essential principles for restorative justice[20]. The Court clarified how it must address the harm suffered by victims and laid down principles that have since guided its reparations framework.

There are, of course, many other developments. Some are not entirely new norms, but rather the first concrete applications of existing legal provisions to specific cases. At times, it is strategically important for the ICC to focus on charges that can be clearly established. In Lubanga, for example, the conviction was limited to the recruitment and use of children under 15, as this was more straightforward to prove. Pursuing additional crimes may considerably prolong proceedings and complicate the evidentiary process. In that sense, the Court must balance legal ambition with procedural feasibility.

Maria Emmanouil & Myrsini Spyrou: You have had a remarkable career spanning academia, constitutional adjudication, the European Court of Human Rights, and now the International Criminal Court. Looking back, what have been the most defining moments that shaped your path as a jurist?

Iulia Motoc: One of the most defining moments in my life came after 1989, following the fall of communism in my country. Like other colleagues who graduated with very high marks, I had the opportunity to study abroad, in France. I initially received a grant for a master’s degree, and after achieving strong results, I continued with doctoral studies and later habilitation. Today, this may not seem extraordinary, but in 1989, for someone from my country, the opportunity to study abroad was exceptional. I became the first Romanian to obtain a PhD in international law abroad, in 1996. That was fundamental for me, because under the totalitarian regime public law had not been able to develop fully.

Another very important step was my election as a UN expert at a very young age. I was among the first generation after the change of regime, and many opportunities opened because everything was being rebuilt. I believe I was 28 or 29 at the time. I served in the Sub-Commission on Human Rights alongside eminent figures in international law, many of whom were in their sixties or seventies. Among my colleagues was Erica-Irene Daes, who played a central role in the development of the Declaration on the Rights of Indigenous Peoples[21]. To sit at that table at such a young age, surrounded by such distinguished jurists, was an extraordinary experience and a formative one.

In 2001, I was appointed Special Rapporteur for the Democratic Republic of the Congo. That period marked my profound awakening to the reality of mass human rights violations. For the first time, I witnessed crimes directly in the field. I reported crimes to the International Criminal Court, and I met victims of sexual violence, mutilation, rape, torture, and systemic extortion across the country. This experience transformed my understanding of law. Until then, my work had been largely theoretical, including my doctoral research on the use of force. In the Congo, I came to understand that human rights cannot be addressed without an anthropological sensitivity and genuine human engagement. Even if one must maintain professional distance as a rapporteur or a judge, a humanist approach is essential.

Another fundamental decision in my life was to return to one of my earliest passions: philosophy. After completing my PhD in France, I pursued a second doctorate in moral philosophy. This deepened my understanding of justice and of the human condition. I also studied literature in France. That intellectual formation has profoundly shaped my approach to law.

Serving at the Constitutional Court of Romania was another decisive moment. It was a period of considerable institutional pressure, and it prepared me to function as a judge under stress—something that later proved invaluable.

My time at the European Court of Human Rights was equally significant. Romania has a very high number of applications before the Court—at one point around 12,000 cases—and serving as national judge required an immense workload. During that period, I focused particularly on the vulnerability of victims. Advancing the rights of women, addressing violence against women, protecting children, and promoting the rights of persons with disabilities became central concerns for me. One of my separate opinions on the rights of persons with disabilities received first prize from NGOs in that field.

Academically, France was crucial in my formation, as was the opportunity to teach in Romania, where I am now a professor in Bucharest and Timișoara. My time in the United States was also important: I spent periods in Miami, and later as a senior fellow and professor at NYU and Yale. These experiences, together with my involvement in the European Society of International Law and the publication of my books, were significant milestones.

Finally, in 2021, I was elected a member of the Institute of International Law. This is a great honour. Last year, I became a full member. I am the only Romanian currently elected to the Institute and the first Romanian elected after the war. Teaching at The Hague Academy of International Law is also among the important moments of my career. All of these experiences together have shaped my professional and intellectual journey.

Maria Emmanouil & Myrsini Spyrou: Looking at the evolving landscape of international law, what emerging areas should young scholars pay particular attention to in their research and career planning?

Iulia Motoc: I have already touched upon this, but for me two major areas stand out today, particularly for younger generations working in international law. The first concerns new technologies and the digital sphere. This affects all jurisdictions, not only the International Criminal Court. If you look at the European Court of Human Rights or the Court of Justice of the European Union, you see highly dynamic courts developing substantial case law in response to digital transformation. The difficulty, however, is that technological developments evolve so rapidly that judicial responses may struggle to keep pace. This is therefore a first crucial area.

The second is the environment. In recent years, almost all major international courts have addressed environmental questions, whether through advisory opinions or landmark judgments—including Grand Chamber decisions at the European Court of Human Rights. Environmental protection has clearly become central to international adjudication.

Another issue I consider fundamental is the dialogue among courts. I mentioned earlier the relationship between the ICC and general international law. Today, we are witnessing increasing specialization in international law. There are now relatively few scholars—even among generations younger than mine—who identify primarily as specialists in general international law. Many focus on highly specific subfields. While specialization is valuable and necessary, excessive fragmentation can be problematic. If one sees only a narrow segment of the discipline, one may lose sight of the broader picture.

The International Law Commission already referred in 2001 to the fragmentation of international law. Ensuring coherence among these specialized regimes is essential. A meaningful dialogue between courts requires jurists who possess a broader vision beyond their own field. Without such a perspective, even inter-judicial dialogue becomes difficult.

Specialization and technical mastery are indispensable. Yet we must also move beyond excessive technicity toward a more humanistic understanding of international law. International law is, ultimately, a law for human beings. Even outside the human rights context—even before the International Court of Justice—there is a human dimension that cannot be ignored. Theory and practice must not be separated; they must be bridged. A holistic understanding of international law is, in my view, indispensable.

At the same time, we are living in a challenging period for international law. There is significant debate about its authority and its future. We see polarization: on the one hand, attacks against international law; on the other, its defense, often led by academia and parts of the international community. It is important to defend our field firmly, but also to seek balance—what one might call a middle ground. This requires philosophical reflection as well as legal analysis. Throughout my career, I have tried to remain attentive to vulnerable groups and to marginalized communities. International law must ultimately serve those who are most in need of protection.

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[1] Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECtHR, 9 April 2024).
[2] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.
[3] Rome Statute, (n 2) art 17.
[4] Office of the Prosecutor, Policy on Complementarity and Cooperation (International Criminal Court 2024), available here. Accessed on 25 February 2026.
[5] Rome Statute, (n 2) art 21.
[6] Office of the Prosecutor, Policy on Cyber-Enabled Crimes under the Rome Statute (International Criminal Court 2025), available here. Accessed on 25 February 2026.
[7] OTPLink is a secure online portal operated by the International Criminal Court’s Office of the Prosecutor (OTP) that allows any individual or organization to submit information and evidence regarding alleged war crimes, crimes against humanity, genocide, or crimes of aggression. Users can securely send these ‘communications’ either anonymously or with their identity disclosed to assist the OTP in its preliminary examinations and active investigations. International Criminal Court, ‘ICC Prosecutor Karim A.A. Khan KC announces launch of advanced evidence submission platform: OTPLink’ (24 May 2023), available here. Accessed on 25 February 2026.
[8] Project Harmony is an evidence management platform, which, harnessing the power of advanced tech, including AI and machine learning, aims to amplify the OTP’s impact on the frontlines and rapidly exploit the modern digital footprint of international crimes. ibid.
[9] International Criminal Court, Strategic Plan 2026–2029 (International Criminal Court 2026), available here. Accessed on 25 February 2026.
[10] Rome Statute, (n 2) art 25(1).
[11] Review Conference of the Rome Statute, Res RC/Res.6, ‘The crime of aggression’ (11 June 2010).
[12] International Criminal Court, ‘Statement of the ICC Office of the Prosecutor on the arrest of former Philippine President Rodrigo Roa Duterte’ (11 March 2025), available here. Accessed on 25 February 2026.
[13] International Criminal Court, ‘Situation in Libya: Khaled Mohamed Ali El Hishri in ICC custody’ (1 December 2025), available here. Accessed on 25 February 2026.
[14] Prosecutor v Thomas Lubanga Dyilo (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06 (14 March 2012).
[15] Prosecutor v Ahmad Al Faqi Al Mahdi (Judgment and Sentence) ICC-01/12-01/15 (27 September 2016).
[16] Prosecutor v Bosco Ntaganda (Judgment) ICC-01/04-02/06 (8 July 2019).
[17] Prosecutor v Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Judgment pursuant to Article 74 of the Statute) ICC-01/12-01/18 (26 June 2024).
[18] Prosecutor v Jean-Pierre Bemba Gombo (Judgment pursuant to Article 74 of the Statute) ICC-01/05-01/08 (21 March 2016).
[19] Prosecutor v Jean-Pierre Bemba Gombo (Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’) ICC-01/05-01/08 A (8 June 2018).
[20] Prosecutor v Thomas Lubanga Dyilo (Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction) ICC-01/04-01/06 A 5 (1 December 2014).
[21] UNGA Res 61/295, ‘United Nations Declaration on the Rights of Indigenous Peoples’ (2 October 2007).

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* We would like to thank the De Jure Journal editorial team