The flag of the International Criminal Court in the Hague, Netherlands (Wiskerke/Alamy Stock Photo)

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.

Those countries that were the ICC’s earliest and most ardent supporters have grown skeptical of the whole concept of international justice.

To the chagrin of President Biden and other Western leaders, that response has been notably reserved. Many African states have been reluctant to condemn Russia or to join in sanctions against it. Although twenty-eight African states voted in favor of the March 22 UN General Assembly resolution demanding that Russia “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders,” seventeen African states abstained, eight did not vote, and one, Eritrea, voted against the resolution.

Africa’s lukewarm response to Russia’s invasion was no less evident during Ukraine President Volodymyr Zelensky’s address to the African Union on June 20: just four African heads of state were interested in attending Zelensky’s talk—and then only behind closed doors. Zelensky reminded them that the sharp rise in food prices in Africa is largely due to Russia’s invasion, but even this was not enough to sway AU leaders to condemn Moscow or express broader support for Ukrainian resistance. This does not mean that Africans have been uniformly indifferent to Ukraine’s plight. In South Africa, for example, civil society has been vocal in criticizing the government’s overt support for Moscow, but so far that support has continued.


All this might seem counterintuitive. One might assume that African governments would be eager to see Vladimir Putin brought before the ICC, to face the same judicial process that African leaders have faced when accused of similar crimes. And the reach of the international criminal justice system into Africa is not limited to the ICC. Under the principle of universal jurisdiction, European countries including France, Belgium, and the United Kingdom (all former colonial powers in Africa) can and do try African defendants in their courts for human-rights violations committed abroad. African states had hoped that the system created by the Rome Statute would make the most powerful countries more accountable, but in practice the ICC has focused mainly on crimes committed by government officials in the Global South. As a result, those countries that were the ICC’s earliest and most ardent supporters have grown skeptical of the whole concept of international justice.

A certain amount of ambivalence among some African states is attributable to Russia’s recent expansion of its economic and military influence on the continent, but Moscow has also successfully manipulated social-media platforms to impress upon an African audience its own interpretation of events. Russian propaganda relies heavily on a kind of “whataboutism.” According to Russia, the West’s concern with human-rights abuses is highly selective, and Western countries engage in many of the same practices they denounce. This charge of hypocrisy resonates with the belief, common among Africans, that the international rules are applied differently depending on which continent you come from.

The perception of a double standard has been compounded by the pandemic. Gross inequities in the distribution of vaccines, along with the unwillingness of many Western countries to relax intellectual-property laws in order to facilitate the manufacture of generic vaccines, seem to suggest that the lives of Africans counted for less than those of people in Europe and the United States. By the time Russia invaded Ukraine in February, much of the world’s attention had already moved on from Covid, but Africa was still in need of assistance to weather the social and economic damage caused by the pandemic. Now there was a new emergency, and the West no longer seemed interested in Africa’s continuing distress.

It’s an old story: today’s headline too quickly becomes tomorrow’s footnote. But both yesterday’s headlines and today’s—the pandemic and the war in Ukraine—are reminding us of the urgent need for an open and honest conversation about what multilateralism and international institutions will mean in the future. The post-1945 order is showing its age, and vestiges of colonialism, still all too visible to Africans, are coming back to haunt international institutions that cannot function well without African support.

It is not just a question of whether Africa will support these institutions; it is also a question of whether these institutions will provide the support Africa needs in the twenty-first century. The architects of the Pax Americana in 1945 could not imagine a world with fifty-four independent African countries, or that the population of the continent would account for a quarter of the world’s population by 2050. We need to reexamine what it means to be a stakeholder in this system. A new paradigm in international relations is needed, one based on equal respect for nations in every part of the world and on the impartial application of international law. There can be no more “junior partners.” The shift to such a paradigm will no doubt be difficult for the United States and Europe, which still cling to their exceptionalism. But the alternative is a continuing erosion of confidence in international law and in the institutions charged with enforcing it.

Fernando C. Saldivar, SJ, is a Jesuit Scholastic of the USA West Province and is the Global Policy and Advocacy Officer for the Jesuit Justice and Ecology Network Africa (JENA) in Nairobi, Kenya.

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Published in the September 2022 issue: View Contents
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