ICC and Global South: Justice or Selective Prosecution? Rethinking Politics Behind International Criminal Justice
1. Introduction
As early as 2002, the International Criminal Court (ICC) opened amidst a lot of fanfare. It was a hope for victims of humanity’s worst crimes genocide, war crimes, crimes against humanity. The promise? End impunity and finally bring powerful perpetrators to justice. But skip ahead two decades, and the story isn’t so simple. The ICC becomes more and more criticised, especially by Global South countries. It is criticised for going after African dictators and weak states, but largely turning a blind eye to the crimes of great powers and their allies (Branch, 2017). The advocates reply that the Court only operates with what cases it actually gets, and that it’s only constrained by who will play along and what can be coerced into keeping people in check (Dannenbaum, 2018). This battle goes deeper than one institution can
It’s a reflection of a wider rift in international justice. Are we really seeking global accountability, or punishing the vulnerable? In this blog, I’m digging into whether the ICC honestly furthers international justice, or if it’s just another tool for the powerful. I’ll look at the legal, political, and structural forces at play, and ask what it would take for the ICC to regain trust in a world that’s no longer run by just a few big players.
2. Context and Background
The ICC was born out of the Rome Statute of 1998 a permanent international court established to prosecute genocide, crimes against humanity, war crimes, and aggression (Rome Statute, 1998).
After what happened in Yugoslavia and Rwanda, the world called for something more than those ad hoc courts. Today, 124 states have joined. But come on: the majority of the strongest like the United States, Russia, China, and India have not enrolled (Coalition for the ICC, 2022). From its beginnings, the ICC had its sights set on Africa, tracking down cases in Uganda, the DRC, Sudan, Kenya, and Libya. This instigated criticism that it was more a “court for Africa” and less a “court of Africa.” The African Union (AU) has complained most vocally, charging the ICC with bias and interference (Murithi, 2013). The reply is that much of these cases were self-referrals African countries initiated themselves asking the ICC to intervene (Jalloh, 2019). In principle, the ICC should ensure complementarity (Article 17) and have independent prosecutors (Article 42). But now comes the catch: the UN Security Council has the authority to refer cases (Article 13(b)), and three of its five permanent members do not belong to the ICC. They may refer cases to the Court or veto them entirely. That’s a pretty big contradiction for a justice system shaped by the same global power politics it claims to rise above (Akhavan, 2016).
3. Discussion and Legal Analysis
A. The Politics of Jurisdiction and Sovereignty
The ICC derives jurisdiction either from the acquiescence of a state or a referral by the Security Council.
That’s not exactly a level playing field non-members with a lot of influence get to duck out of. Take Darfur (Sudan) and Libya: both not members, but both received referred by the Security Council. But Western forces accused of committing crimes in Iraq or Afghanistan, political pushback is harsh (Kersten, 2016). Such hypocrisy renders it hard to be serious about allegations of “impartial justice” while global hierarchies still call the shots.
B. The African Experience: Justice or Targeting?
From 2002 to 2016, all of the ICC’s investigations were in Africa.
It is no surprise that many accused the Court of targeting the continent. When the ICC indicted Sudan’s Omar al-Bashir in 2009 the first sitting head of state ever so indicted it was a milestone. But it also elicited resistance. The AU told members to deny cooperation (Murithi, 2013). In Kenya, Uhuru Kenyatta and William Ruto’s evidence fell apart, and whines of politics and minimal evidence. Makau Mutua (2011) calls this the “Savage-Victim-Savior” dynamic: Western institutions rush in to “rescue” the Global South, playing the moral high ground. C. Double Standards and Global Impunity
C. The ICC rarely ever addresses great powers.
Its investigation into U.S. and CIA personnel suspected war crimes in Afghanistan? Shot down at first, because of political pressure and promises of retaliation (Scharf, 2020). Efforts to investigate Palestine and Myanmar have also faced legal and practical hurdles. In 2023, the ICC issued a warrant for Vladimir Putin on the basis of crimes related to Ukraine a aggressive move, but how probable will it matter? Russia is not a member, so the authority of the warrant is predominantly symbolic. The Court exercises universal jurisdiction, yet de facto application has everything to do with who is in office (Kendall & Nouwen, 2013).
D. Institutional and Legal Constraints
The ICC lacks a police force of its own. It has to be dependent upon states to comply because Article 86 of the Rome Statute explicitly states so. But governments around the globe especially in Africa refuse to make arrests, invoking diplomatic immunity or safeguarding their own national sovereignty.
UN Security Council’s blocking or referral authority under Article 16 politicizes the ICC. This setup undermines the independence of the Court and provides it with a perception of prejudice (Dannenbaum, 2018).
E. Restoring Credibility and Representation
There has been a sincere effort in recent times to bring diversity to those who serve at the ICC and lead it.
When Karim Khan assumed the position of Prosecutor in 2021, the momentum shifted abruptly, the Court stepped outside its historic interest and opened investigation in places like Palestine, Myanmar, and Ukraine (ICC, 2023). But all this does not matter if the ICC cannot back it with actual reform. It needs to do better than tick boxes: authentic legitimacy is more than representing everyone, building up local justice systems, and establishing trust with Global South states. The Court needs to stop acting as if it’s just meting out justice from on high. If it really wishes to be global, not Western, then it has to collaborate with others, not instruct them
4. Suggested Solutions and Possible Impacts
To counteract the bias perception and regain credibility, the ICC needs to rethink how it does its job, both internally and externally.
Firstly, the Security Council should not have such power. Amending Article 13(b) to limit referrals from non-members would be a beginning. Secondly, the ICC needs to make local courts stronger, especially in Africa, Asia, and Latin America, so they can try cases independently (Jalloh, 2019). More diversity among ICC leadership and staff would render the Court more representative and bridge the North-South divide. The ICC can further support along with national systems so that they can develop their own ability to prosecute international crimes. When states prosecute their own citizens, it accords with the core principle of complementarity so that states remain in control yet promote global justice. If the ICC follows through on these reforms, it can finally drop its Western-tribunal image and become a court accepted everywhere, ready to face new challenges as power reaches out around the globe
5. Conclusion
The ICC struggles between its noble goals and the grim realities of international politics.
Yes, it’s come a long way toward bringing people to account everywhere. But the perception that it can only keep its eye on some regions, or is a tool of Western hegemony, still gnaws at its legitimacy. To states of the Global South, the ICC’s words ring hollow unless it delivers. Institutional reforming, enhancement of representation, and actually exercising power are all necessary if the Court is to be trusted again. In the end, the ICC’s future rests on whether the world can put politics aside and establish a system of justice founded on equity, equality, and a common sense of humanity.
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Co Author: Dr Samta Kathuria | Assistant professor lovely professional University
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