Although heavy fighting continues in Ukraine five months after Russia’s invasion began, the West seems to have recovered from its initial shock. With no endgame to the war in sight, our attention has turned back to political and economic problems at home—to the January 6 hearings, mass shootings, and inflation. But what is happening in Ukraine still demands our attention, and for more than one reason. Russia’s aggression is turning the post-1945 global order on its head and undermining the stability of the international institutions created in the wake of the Second World War. We desperately need to be talking about the future of multilateralism at this very moment, as the pillars that have supported the postwar order begin to buckle.
One of those pillars is international criminal justice, the promise that those responsible for wars of aggression, genocide, war crimes, and crimes against humanity will be held accountable. According to leading international lawyer Philippe Sands, the world experienced a revolutionary change in 1945, when, “for the first time, states agreed that they were not absolutely sovereign, that they could not kill individuals or destroy groups.” This legacy is now in peril, according to Sands. It is threatened not only by Russia’s invasion, but also by the reluctance of powerful states to establish a Nuremberg-like tribunal to investigate Russia for the crime of aggression. Sands argues that Britain, France, and the United States are all worried that they, too, could one day find themselves in front of such a tribunal.
A special tribunal is required in this case because the International Criminal Court (ICC) lacks jurisdiction to investigate Russia, which was not a party to the agreement that established the ICC. That agreement, called the Rome Statute, took effect twenty years ago this July. Its anniversary is a good occasion to reflect on the progress of the ICC over these past two decades and to consider where it might be headed in the future.
According to Philip Zelikow, the international system of which the ICC is such an important part has become increasingly hollow, undermined by the conduct of China, Russia, the United States, and Europe. But how that conduct is perceived by others, particularly in Africa, is also important; it explains not only Africa’s fraught relationship with the ICC, but also its relatively tepid response to Russia’s aggression against Ukraine.
African leaders and activists played an early and critical role in the campaign to establish the ICC and in the negotiations that led to the Rome Statute. They hoped that such a court would protect weaker states in a more egalitarian international system, providing a check against the whims of great powers. This initial enthusiasm ebbed, however, when many of these great powers—including the United States, Russia, and China—refused to ratify the Rome Statute and submit themselves to the ICC’s jurisdiction. Washington’s wariness of the ICC turned into open hostility during the Trump presidency, when the U.S. government levied sanctions on the court and its Gambian chief prosecutor, Fatou Bensouda, because the ICC had the temerity to open an investigation into potential war crimes committed during the war in Afghanistan.
Notwithstanding the refusal of some of the world’s most powerful countries to join the ICC, the court has not wanted for work, and most of its cases have to do with Africa. Of the seventeen ongoing investigations before the ICC, ten involve African states. As a consequence, many Africans have concluded that there is a double standard in international criminal justice, one that allows powerful states to protect themselves and their allies from the court’s reach. This imperial attitude of “do as I say, not as I do” has affected public opinion in Africa about the appropriate response to Russia’s invasion of Ukraine.