Why more states are walking away from the ICC

Selectivity became an embedded feature. For instance, Serbs and Hutus were labelled as perpetrators, while the crimes of Croats and Bosnians were glossed over, and Tutsi crimes (including the mass killings of Hutus and the slaughter of refugees in the Democratic Republic of Congo) were largely ignored. First conceived after the Nuremberg Trials of senior German Nazis, the idea persists of a "tribunal of the victors".

To critics, including the Sahel Alliance, international law is applied selectively to those deemed guilty as a tool of political manoeuvre. Moreover, to these states and others, the ICC does not take responsibility for its decisions and actions.

Among the other criticisms of the ICC are that it is not neutral, that it has begun to influence international affairs (effectively becoming a political actor), and that Africa is its predominant focus. Around two-thirds of all its investigations this year were concentrated on the continent, reinforcing the perception that weaker 'ward' states are overwhelmingly the subjects of selective prosecution.

Focus on Africa

Africans have certainly featured prominently to date. The court's first conviction in 2012 was against a Congolese warlord who forcibly recruited child soldiers. In 2009, the ICC issued an arrest warrant for Sudanese President Omar al-Bashir over the Darfur genocide (the effect of which was to paralyse dialogue within the African Union, with several states—including South Africa—refusing to arrest him).

In 2010, the ICC brought cases against Uhuru Kenyatta and William Ruto of Kenya over post-election violence, but the prosecution collapsed due to insufficient evidence, Kenyatta portraying himself as a victim of a "Hague conspiracy". In 2011, the ICC issued arrest warrants for Libya's Muammar Gaddafi and his son Saif al-Islam. Some suspected the timing was political, as it aligned with NATO action.

The first former head of state to be transferred to The Hague was Laurent Gbagbo, former president of Côte d'Ivoire, who was charged with crimes against humanity following the country's post-election conflict in 2011. He was handed over by the regime of his pro-French successor, Alassane Ouattara, having been captured by French special forces following an attack on the presidential palace.

The trial began in 2016, but in 2019, Gbagbo was acquitted due to a lack of evidence. This was upheld on appeal in 2021. Gbagbo returned to Côte d'Ivoire as a political figure, but his standing was diminished. Meanwhile, the ICC largely ignored acts of violence committed by supporters of Ouattara, who last month said he would seek a fourth presidential term, despite a constitutional limit of two.

Breaching principles

Earlier this year, the ICC sought to establish a precedent by classifying videos circulated on social media as "psychological terror," an "infringement on personal dignity," and "crimes against humanity." The videos largely documented the actions of pro-government forces, causing a backlash in some capitals.

Wary of perceived bias, the ICC has sought to distance itself from high-profile African cases by encouraging the creation of regional tribunals to shoulder responsibility. In the trial of former Chadian President Hissène Habré, charges and proceedings were conducted solely by the Extraordinary African Chambers, operating under Senegalese jurisdiction with support from the African Union.

Formally, Habré's crimes fell outside ICC jurisdiction, having been committed between 1982 and 90, before the Court's establishment. The trial notably breached the principle of non-retroactivity, as some charges related to actions that were not crimes under international law at the time they were allegedly committed. Yet again, the court's failure to examine alleged crimes by then-President Idriss Déby, Habré's political rival, suggested its selective application of justice.

Stretch and break

For the last four years, the court has investigated Philippine President Rodrigo Duterte over mass extrajudicial killings of those accused of drug dealing. In 2023, it issued an arrest warrant for Russian President Vladimir Putin over the deportation of Ukrainian children from occupied territories, which is classified as a war crime. And in 2025, ICC Prosecutor Karim Khan filed a request for the arrest of Israeli Prime Minister Benjamin Netanyahu over operations in Gaza, for which he and others at the ICC then had sanctions applied to them from the United States as a result.

To some, the Court is increasingly involved in politically sensitive matters, raising questions about its impartiality and the limits of its jurisdiction. Decisions appear to be contingent on the geopolitical context, and are treated primarily as political signalling, given that very few ever expect Duterte, Putin, or Netanyahu to be deported to The Hague to stand trial.

The departure of the Sahel trio follows the official withdrawal of other African states, the Gambia and Burundi. What now for international justice? The Sahel States Alliance signalled their intention to develop independent justice mechanisms designed to safeguard sovereignty. Whether this serves as a catalyst for the global transition from international law to international lawlessness remains to be seen.