Abolish the International Criminal Court
For what they are worth, I have made my views on the International Criminal Court (ICC) as clear and as often as possible for about twenty years. The Court, as they would like us to politely call it (it is in reality a non-governmental organization masquerading as a court), is fruit of the poisonous tree, that is to say the 1998 Rome Statute, a founding document described even by its nearest and dearest as seriously flawed. It was hailed nevertheless as a “gift of hope to future generations”, “one of the most significant achievements of human civilization” and “a giant step forward” for global human rights. The ICC has instead emerged as terminally damaged goods peddled by bewigged and begowned snake-oil salesmen such as its disgraced former chief prosecutors, Luis Moreno Ocampo and most recently Karim Khan, and a coterie of incompetent prosecutors, underqualified judges, strangely incurious legal scholars and self-servingly by unaccountable non-governmental organizations within the burgeoning human rights industry. For all the good it was doing, and more importantly, because of all the damage it has already done to the noble cause of justice, it should have been scrapped many years ago. Such a view was a lonely one back in the day. How things have changed, and not just because the US cavalry has recently arrived.
In May 2025, an Australian academic at the University of Sydney, Charlotte Carney, published a scholarly piece in The International Journal of Human Rights entitled ‘Abolishing the International Criminal Court’. (It should be noted that her article appeared before the culmination of the horrendous Karim Khan sexual misconduct scandal which has further rocked the Court and the ICC ecosystem to its very core.) She outlines processes of refusal, relationality, decentering, delegitimizing and dismantling the Court and unambiguously argues that the ICC must be abolished. Carney cannot be described as a conservative commentator or an apologist for a government or individuals caught up in the Court’s political dragnet, as I have been. Her pronouns are she/her. Her Twitter and LinkedIn headers display Palestinian flags. Carney’s is very much a critique of the ICC from the political left and she draws on radical critical legal scholars who “traverse feminist, queer, decolonial and Third World Approaches to International Law”, who show that “colonial legacies and imperial interests continue to structure the operation of international law” developed “to regulate the relations between colonizers and formerly colonized states”. She points to legal critics who have refuted claims that the ICC “rises above power politics”, pointing out that “how different states have used the ICC to advance certain objectives.”
On this and much more one can easily agree. The ICC is a European project, by conception or adoption. European Union member states, including most notably the United Kingdom, The Netherlands, France, Germany, Belgium, Spain and Italy – the main colonial powers – have provided up to two-thirds of the Court’s budget. Only the particularly naïve would claim that these are politically separate budgetary payments by individual states. The European superstate has bought a controlling interest in ICC Inc. Other countries within the white Anglosphere such as Canada and Australia also contribute handsomely of course to the ICC budget but this does little to counter the claim that the Court is a creature of the Global North, directed almost exclusively at the Global South – and particularly Africa. The ICC has been knowingly weaponized on several occasions as an instrument of European foreign policy, acting as “legal” top cover for Western, largely French-led interventions in Africa. From 2002 until 2020 it had only ever indicted Africans. It is a matter of record that the ICC has avoided indicting a single person from the Global North in its 25 years of existence, despite several legally-interesting kinetic military interventions within the Global South. Carney quite rightly states that in refusing to engage with the ICC, one refuses to legitimize the racism that the ICC produces.
Amongst many others, the American lawyer Paul D Schmitt has underlined Carney’s point: “[T]he legacy of colonialism continues to exacerbate the growing rift between African states and the International Criminal Court, thus weakening the Court’s institutional legitimacy in Africa. Specifically, the Court’s almost-exclusive focus to date on crimes committed in Africa has led to criticisms that the Court is a ‘neocolonialist’ institution, purportedly dispensing justice at the whims of Western powers.”
In addition to noting the Court has been “widely critiqued” for its racist Africa focus, and that “critical legal theorists, practitioners, and states [argue] that the Court is lenient towards Western states”, and that “the ICC upholds a global hierarchy where Western states are not accountable for their violations”, Carney also observed that the Court is “a neo-colonial institution . . . designed to preserve the Western centric, post-WWII order”. This is also self-evidently true.
The ICC is joined at the hip to the United Nations Security Council, the poster boy of the post-WWII world order and the world’s most political body. The ICC’s claim to be an independent court is fatally contradicted by the fact that the Court grants prosecutorial rights of referral and deferral to the Security Council, that is to say the Permanent 5 members. As proof of concept, so to speak, the Security Council, at the behest of the P5, three out of five of which are pointedly not ICC members, has found time to refer two African countries who were also not members of the ICC, to a court none of them recognized. Very Alice in Wonderland-esque.
Carney also notes that “critical legal scholars have questioned the Court’s ability to foster meaningful, inclusive justice” and that “The ICC has been subject to ongoing critique which span from procedural, critical legal theory” which “questions the project’s moral and epistemic credentials, its rationality and virtuousness”. This ongoing critique has laid bare the corrupted practices that have irredeemably damaged the legitimacy and credibility of the Court. They include blatant racial profiling, political selectivity, double standards, inconsistent judicial opinions, un-or-under qualified judges elected by vote-trading, a lack of due process, detainees in custody for 10 years before being acquitted, bogus and botched prosecutions, suborned and perjured witnesses, prosecutors deliberately hiding exculpatory evidence, further evidentiary scandals, outsourcing investigations to questionable and unaccountable non-governmental organizations, a noted indifference to victims and a toxic work environment including sexual misconduct at the highest level. This is by no means an exhaustive list.
Perhaps the most important conclusions drawn by Carney, again an issue I have raised repeatedly, is that “the justice that the ICC produces can only ever be harmful rather than transformative”, and that legal scholars have argued that the Court “is embedded in oppressive structures and incapable of providing meaningful or reconciliatory justice.” It is certainly the case that the Court has destroyed or derailed several peace processes in Africa in its pseudo-legal meandering across the continent in the service of European foreign policy, resulting in the death and displacement of thousands of civilians.
Defining abolition as undoing the parts of society that continue to oppress, Carney stated that the ICC is an oppressive institution that requires such abolition. One could not agree more.
