Published on: 01st January 2026
Authored by: Ritwaj Chaturvedi
Law centre II, Faculty of Law, University of Delhi
ABSTRACT
The International Criminal Court (ICC) was supposed to be a fair, impartial court, a safety net for justice when countries refused to hold their own people accountable for serious crimes. But since it started operating in 2002, the ICC has faced a steady stream of criticism for playing favorites and focusing too much on certain regions. This paper digs into how much the ICC’s decisions are really about justice, and how much they’re shaped by politics and global power. Using ideas from the Third World Approaches to International Law (TWAIL), I argue that the ICC’s heavy focus on Africa, and its hesitance to go after Western states, isn’t a coincidence. There’s a deeper, structural problem in how global justice works. Looking at cases like Darfur, Libya, Afghanistan, and Ukraine, you can see a pattern. Political pressure, money, and institutional roadblocks keep the ICC from acting independently. The court goes after African leaders hard, but when it comes to Western countries accused of similar crimes, it holds back. This selective approach chips away at the ICC’s reputation and makes international criminal law look like a tool for the powerful. The analysis also points out how the United Nations Security Council and Western funding help keep this imbalance going, letting powerful countries shape the rules in their favor. If the ICC wants to be taken seriously, it needs real reform, fairer jurisdiction, consistent laws, and protection from political meddling. Until then, it can’t claim to stand for true justice, and its authority will remain shaky on the world stage.
INTRODUCTION
The International Criminal Court (ICC) exists to back up national and international legal systems, and when those systems fail, it steps in as the last resort. The Rome Statute spells it out[1]: every country has to use its own criminal courts to go after people who commit international crimes. But the ICC only jumps in under certain conditions like when a country won’t, or can’t, prosecute, when the UN Security Council tells it to, or when a state asks for its help. Since it started working in 2002, the ICC has taken on cases through all three of these routes.[2] Most of the people who’ve ended up in the ICC’s crosshairs have been African. The numbers are hard to ignore. Because of that, plenty of people say the ICC isn’t really about universal justice it’s just another way for Western countries to push their own political interests.[3] The Court’s critics see its focus on Africa, and its silence elsewhere, as proof that it’s marginalizing Africans while letting the West off easy. A lot of legal scholars and political theorists don’t buy the ICC’s claim to legitimacy. They look at the Court and see real problems some baked into its structure, others the result of how it operates. The Third World Approach to International Law lists the main issues: selective prosecutions, unfairly limited jurisdiction, lopsided regional enforcement, dodging cases where prosecutions would actually stick, and basically serving as a neocolonial tool for Western powers. So, what’s the point of this paper? Simple. I’m going to dig into how the ICC actually delivers justice, especially now that people are calling it biased. I’ll look at it through the lens of Third World critiques, and try to sketch out a better way forward one that deals with these legitimacy problems head-on.
Selectivity In ICC (Excessive Focus On Africa)
The real problem isn’t that people talk too much about Africa; it’s that they barely look anywhere else. Every single one of the 31 people the ICC has put on trial comes from Africa. All 10 convictions? Africans too. That sends a message intentionally or not that human rights abuses happen mostly in Africa, which just isn’t true. If you dig into the numbers, it doesn’t add up. Open Societies found that out of 53 countries involved in mass disappearances and torture, 31 had signed the Rome Statute. Still, the ICC ignored most of them.[4]
This focus has chipped away at the credibility of local courts and pushed African countries to turn their backs on the ICC. Take Jean Ping’s statement in 2011: after the ICC went after Muammar Qaddafi, the African Union, led by Ping, flat-out said it wouldn’t cooperate anymore, calling the court biased. Not long after, in 2017, the African Union passed a resolution to support a mass withdrawal from the ICC. Burundi, Gambia, and South Africa actually followed through. That’s a sharp turnaround from when Dullah Omar, representing South Africa at Rome, was excited about building a fair, impartial international court.[5]
People often defend the ICC’s focus on Africa by saying national courts there can’t handle big, complex cases fairly. But that argument falls apart if you look closer. The ICTR, for example, sent several cases back to Rwanda, including the high-profile Jean Uwinkindi case. And the ICC let Guinea run its own investigation into the 2009 protester deaths. So, it’s not like African courts are always incapable. It’s just that the ICC doesn’t treat other regions with the same scrutiny.[6]
Selectivity In ICC (With respect to Western Leaders)
The ICC really looks like it’s drifted into a top-down system of justice. Robin Cook didn’t mince words he flat-out said, “this is not a court set up to bring to book Prime Ministers of the United Kingdom or Presidents of the United States.”[7] Just look at how things played out with British war crimes in Iraq. Prosecutor Moreno-Ocampo dropped the investigation, saying there weren’t enough victims to meet the gravity threshold. But then, the Court started looking into North Korea, which had about the same scale of victims. Doesn’t add up.
Fatou Bensouda opened an investigation into the Afghanistan situation some pretty serious crimes by the U.S., including the black site program. But in 2019, the ICC refused to authorize it, blaming the “unfavorable political climate.” This decision got overturned on appeal, but the U.S. didn’t take it lying down. They slapped sanctions on the Prosecutor, ICC officials, and even their families. Blocked their visas, froze their assets in the States. All this after John Bolton called the ICC “dead” to the U.S.[8]
Then in 2021, Prosecutor Karim Khan basically shelved the investigation into U.S. war crimes in Afghanistan, saying the case wasn’t viable and the budget was tight.[9] But, almost immediately, he launched the Court’s biggest investigation ever into Ukraine. He even asked ICC member states for extra money to fund it. The double standard couldn’t be clearer. It’s the same with the U.S.’s ally, Israel. The ICC has been “investigating” since 2021 but hasn’t issued an arrest warrant. The Prosecutor visited Ukraine four times in a year but didn’t even bother to go to Palestine. And when it comes to prosecuting Russia for the crime of aggression in Ukraine, the ICC and the European Union backed the idea of a special hybrid tribunal. No such thing happened with U.S. or UK actions in Afghanistan or Iraq.
All of this makes it hard not to see the ICC as a tool for political and economic pressure. Political coercion shows up as interference with investigations and trials take the Hague Invasion Act, for example, which lets the U.S. use military force to stop ICC investigations against its own people.[10] It also lets the U.S. cut off military aid to countries that ratify the Rome Statute. The U.S. has a lot of sway over international institutions, too remember when it quit the UNHRC, claiming anti-Israel bias? That was really about steering what the UNHRC does. The U.K. holds a seat in the Assembly of State Parties, which picks ICC judges and the prosecutor. And, let’s be honest, the EU controls a lot inside the ICC Europeans fill most of the key roles for investigations and case prep.
Economic pressure works its own way. The U.S. has “Status of Force Agreements” with a bunch of countries that block them from handing over U.S. officials to the ICC. Getting U.S. financial aid often depends on signing these deals. Plus, the ICC relies on funding from its members. The U.K., for example, chipped in £8.9 million in 2017 about 7% of the ICC’s whole budget that year.
Then there’s the UNSC, which just makes the imbalance worse. It always acts in line with the interests of the permanent five countries. When the UNSC voted to send the Darfur case to the ICC, the U.S. abstained not because it cared about Darfur, but to distract attention from Iraq. In 2014, China and Russia blocked a resolution to refer Syria to the ICC, and didn’t even bother with a real explanation.
CONCLUSION
When the ICC first came on the scene, a lot of people in third-world countries saw it as a real chance to fix the mess left by colonial rule. They hoped it would bring some fairness. But honestly, the Court hasn’t lived up to those hopes. There’s just too much confusion about its rules, and the whole process feels tangled up with politics and bias. Laws aren’t applied equally, and people notice.
Take the UN Security Council, for example. It can refer cases to the ICC, but let’s be real big players like the US, Russia, and China, who never even signed the Rome Statute, usually call the shots because of their own political agendas. Then there’s the way the ICC keeps targeting African countries. Since the beginning, it’s mostly gone after leaders from Africa instead of holding everyone to the same standard. Meanwhile, powerful countries like the US and Russia get a free pass, even when they commit serious crimes that might be even worse than what some developing countries are accused of.
This whole thing isn’t lost on people. Western countries use the ICC to keep control over third-world nations. They go after leaders like Omar Al-Bashir and Muammar Gaddafi, hoping to weaken their grip on power. South Africa noticed. They’ve pushed back, called out the ICC, and even said they want out of the Rome Statute because they see these prosecutions like those against the presidents of Sudan, Libya, and Kenya as political moves, not true justice.
And let’s face it, the US and its allies have turned the ICC into a tool for removing African rulers they dislike. The global criminal justice system is getting more centralized, and that’s wiping out some of the diversity different regions used to have. Right now, cooperation between countries matters more than ever if we actually want the ICC to deliver on its promises. If the Court really wants to be credible, it needs to treat everyone equally even the powerful nations. That’s the only way people will trust it.
[1] Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.
[2] William A. Schabas, An Introduction to the International Criminal Court 51–59 (5th ed. Cambridge Univ. Press 2017).
[3] Antonio Cassese, International Criminal Law 325–338 (3d ed. Oxford Univ. Press 2013).
[4] John Bolton, Remarks to the Federalist Society, Washington, D.C. (Sept. 10, 2018), https://2017-2021.state.gov.
[5] Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV. INT’L L.J. 201, 207–210 (2001).
[6] Kamari Maxine Clarke, Affective Justice: The International Criminal Court and the Pan-Africanist Pushback 112–118 (Duke Univ. Press 2019).
[7] Obiora Chinedu Okafor, Third World Approaches to International Law (TWAIL): A Brief History and a Manifesto, 10 INT’L COMMUNITY L. REV. 7, 11–15 (2008).
[8] African Union, Decision on the Progress Report of the Commission on the Implementation of the Assembly Decisions on the International Criminal Court (ICC), Doc. Assembly/AU/Dec.672(XXX) (Jan. 2018).
[9] Situation in the Republic of Iraq/United Kingdom, Final Report, Office of the Prosecutor, Int’l Crim. Ct. (Dec. 9, 2020), https://www.icc-cpi.int.
[10] U.N. Security Council, Resolution 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005) (referring Darfur to ICC).
