The International Criminal Court was created in 1998 with an ostensibly global remit, but the focus of its work has long been much narrower. To date, all 44 people indicted by the court have been Africans. In recent years, the ICC has opened investigations of cases from places outside Africa, including Afghanistan, Georgia, and the Palestinian territories. But the court remains fixated on a single continent. Ten out of its 14 active investigations involve Africa.
Several African countries—notably South Africa, which attempted to withdraw from the ICC in 2016—have rebelled against the court, with some arguing that its reluctance to investigate Western countries is evidence of its “imperial” character. Aware of this track record, the court has begun in recent years to set its gaze beyond the “global South” and bring citizens of Western countries under scrutiny. That has sparked a furious backlash. In 2020, the United States preemptively sanctioned ICC officials for opening an investigation in Afghanistan that might reach U.S. personnel. A spate of Western liberal democracies has called for the ICC prosecutor not to open an investigation into war crimes allegedly committed by Israel in the Palestinian territories, claiming that such an investigation reaches beyond the court’s mandate and jurisdiction.
The court’s apparent deviation from its tradition of disciplining Africans raises the stakes for its future and its ability to operate. The ICC is primarily funded by some of the liberal democracies that are now openly challenging the court. But if it fails to truly broaden the scope of its activities, the ICC will remain a symbol of the hypocrisy of the liberal international order. In February, the ICC’s member states elected its third chief prosecutor, the British lawyer Karim Khan, who was sworn in on June 16. The new prosecutor must stay the course and fully investigate—and bring to justice—those who have committed atrocities, no matter where they took place and no matter what opposition he faces.
LAW FOR THEE BUT NOT FOR ME
The ICC came into being after a decades-long attempt to establish a permanent mechanism to end impunity for the gravest “atrocity crimes”— including genocide, war crimes, and crimes against humanity. In the aftermath of World War II, the United Nations recognized the need to establish an international criminal court to prosecute these crimes. The project went into hibernation during the Cold War but was resuscitated in the early 1980s. In 1989, as the Soviet Union was teetering, the UN General Assembly asked the International Law Commission, a UN legal advisory body, to resume work on an international criminal court. In 1994, the ILC drafted a statute for just such a court. Its final version was adopted four years later as the Rome Statute, the founding treaty of the ICC. Only seven states voted against the statute, and 120 states voted in favor. The creation of the ICC marked a pivotal moment in international lawmaking and in the rise of the post–Cold War liberal, cosmopolitan world order that presumed the inevitable spread of liberalism and its supposedly universal values.
In its operation, however, the ICC consecrated a much more restricted international legal order, one that effectively presumed that grave atrocity crimes are the province only of the non-Western world. Western powers have reacted with alarm to the ICC’s recent attempts to open investigations outside Africa, heaping pressure on the court and leveling sanctions against it. In so doing, they have revealed the tacit understanding that international criminal law applies to some more than others.
Some Western states championed the need to establish the ICC in the belief that the court’s jurisdiction would be primarily focused on the global South or at the periphery of Europe. But other states, such as China, Russia, and the United States, did not want to be subject to the court’s jurisdiction and chose not to join the ICC. This concern explains, for example, their insistence that the ICC be placed under the supervision of the UN Security Council—in which they wield disproportionate power—a proposal that an overwhelming majority of states from the global South rejected. States reached a compromise that established a formal relationship between the UN Security Council and the ICC, but it wasn’t enough to convince the great powers to come on board. The United States—the de facto leader of the liberal international order—failed to join the ICC because it felt that becoming subject to international law and order was too high a price to pay. Washington was especially concerned that its military personnel could end up being prosecuted in The Hague.
African countries made various demands concerning the kind of court they wanted to see come out of the Rome negotiations. They wanted the nascent institution to be independent, impartial, and free from interference from UN Security Council members and other powerful states. They hoped that the new permanent court would usher in an egalitarian international system that protected weaker states and provided a check against great powers. But the ICC was not that kind of court.
THE COURT OPENS
The first ICC prosecutor, the Argentine lawyer Luis Moreno Ocampo, who served from 2003 to 2012, chose to focus on Africa and African defendants. The ICC’s interventions irked many African states and the African Union, which claimed that the court’s actions hindered the peaceful resolution of conflicts. African states also argued that heads of states should have immunity from prosecution while in office, in line with customary international law. Two cases, in particular, brought to the fore a rift between African countries and the ICC: the ICC’s issuing of arrest warrants for Sudanese President Omar al-Bashir in 2009 and 2010 on charges related to genocide in Darfur and the 2011 summons issued to current Kenyan President Uhuru Kenyatta (then deputy prime minister) on charges stemming from election-related violence in 2007 and 2008.
Ocampo’s successor, the Gambian lawyer Fatou Bensouda, tried to mend the rift between the court and Africa. Part of that effort involved expanding the range of investigations beyond the continent. She opened investigations in Afghanistan, Bangladesh and Myanmar (to do with the displacement of the Rohingya), Georgia, and the Palestinian territories. On her last day in office, she requested an authorization from the court’s judges to open an investigation in the Philippines. Bensouda’s office also secured convictions related to sexual and gender-based crimes, the recruitment and use of child soldiers, and crimes for the destruction of cultural heritage, thus breaking new ground in the jurisprudence of international law.
Bensouda’s office showed a greater willingness to challenge major powers at the risk of incurring a backlash and targeted sanctions. Her decision in December 2020 not to prosecute British soldiers for war crimes committed in Iraq was baffling, but the investigations in Afghanistan and the Palestinian territories will take the court into uncharted waters—and could define the tenure of her successor.
THE NEW PROSECUTOR
The incoming prosecutor will be closely scrutinized on what he will do next. Unlike his predecessors, who were elected by consensus, Khan was appointed after a tumultuous election cycle in which the court’s member states struggled to agree on a candidate. After multiple rounds of negotiations, they held a vote by secret ballot. Khan was elected after the second round of voting.
Khan steps into his new role with extensive experience in international criminal law from both sides of the bench. He has worked in a number of international tribunals, such as those dealing with Cambodia, Rwanda, and the former Yugoslavia. Khan has previously worked as a defense lawyer, prosecutor, and counsel for victims. He has also served as the defense attorney for high-profile suspects: Charles Taylor of Liberia, William Ruto of Kenya, Saif al-Islam al-Qaddafi of Libya, and Jean-Pierre Bemba of the Democratic Republic of the Congo. In 2018, he served as the head of a UN team investigating crimes committed by the Islamic State, also known as ISIS, in Iraq.
What Khan does with the ongoing investigations in Afghanistan and the Palestinian territories will reverberate well beyond The Hague. The ICC’s investigation in Afghanistan focuses on alleged crimes against humanity and war crimes committed in the country since May 2003. It will likely cover the conduct not only of Taliban and Afghan national forces but also of U.S. military and intelligence personnel. The United States is not a party to the ICC, but Afghanistan is; the actions of U.S. personnel in the country could fall under the purview of the court. This investigation provoked the Trump administration to place sanctions on ICC officials that sought to freeze their assets and prevent them from entering the United States.
The Biden administration has rescinded the sanctions, but the path ahead remains tricky for Khan. If he proceeds with an investigation that brings U.S. officials and military personnel under scrutiny, he risks exacerbating tensions with the United States. Opposition to the ICC is a bipartisan issue in the United States, and presidents of both parties have refused to endorse or cooperate with the court. But if Khan caves to political pressure from the major powers, he may further damage the court’s image and legitimacy.
The open ICC investigation in the Palestinian territories—which focuses on alleged crimes committed in the occupied territories, including East Jerusalem, since June 2014—poses similar challenges for Khan. The prosecutor’s office believes that both Israeli personnel and Palestinian groups have committed war crimes and crimes against humanity in Gaza and the West Bank. Although Israel is not a party to the court, the Palestinian territories are, so the court could investigate and indict Israeli personnel for their actions there. The investigation could explore whether Israeli forces committed war crimes during the 2014 war in Gaza and whether Hamas and other Palestinian groups have committed war crimes by firing rockets indiscriminately at Israeli towns. Israeli officials could also face charges of crimes against humanity for expanding Israeli settlements in the West Bank. The investigation could grow to cover the recent flare-up of violence this year.
The ICC has faced tremendous backlash for this investigation in the Palestinian territories, and that pressure will only increase as Khan settles into his new role. Benjamin Netanyahu, when he was Israel’s prime minister, insisted that the ICC investigation amounted to “anti-Semitic edicts.” Australia, Canada, Germany, and the United States, among other states, have also condemned the investigation, arguing that the court has no jurisdiction over Israeli citizens because Israel is not a party to the court. They also dispute the status of Palestine as a state for the purposes of ICC membership and referral. Khan will have to decide whether to press ahead with the investigation or not. Crumbling beneath the pressure would further hurt an already embattled court. The ICC would again appear as an institution that enshrines a two-tiered international legal system, holding some countries to a standard that it doesn’t require of others.
Khan must ensure that all parties involved in the conflicts in Afghanistan and the Palestinian territories receive fair and thorough investigations and are held to account. The court’s action is needed in both places. The ICC is a court of last resort, and states can always investigate and prosecute their own personnel first. But it is clear that neither Israel nor the United States is willing to do so.
The stakes are high. The court and the wider international justice system centered in The Hague point to the contradictions of the liberal world order, which espouses universality in theory but in practice exonerates the West while disciplining and condemning the rest. But the ICC can earn greater legitimacy and make progress toward a more just world where perpetrators of atrocity crimes, regardless of who they may be, will be held accountable. To do so, Khan will have to withstand the inevitable pressure, investigate, and, if necessary, indict Westerners accused of the gravest crimes imaginable.
This article was originally published on ForeignAffairs.com.
