The rise of autocracies and nationalist agendas constitutes a growing threat to existing regimes of international justice. As recent cases, like the Palestine situation, reveal the double standards of states, the question is in which form of the regime of international justice will survive.
A clear shift in states leading accountability efforts is already visible. The question is, how the reshaping of international justice can be used to close the gaps in, and weaknesses of, existing systems.
The executive order by US President Donald Trump on 6 February 2025 imposing travel and economic sanctions on personnel of the International Criminal Court (ICC) did not come as a surprise.
It is a brutal wake-up call to the regime of international justice, a system that has spent too long in a comfort zone, ignoring harsh realities and avoiding difficult questions.
To be clear, the question is not whether international justice will survive — it will survive. It is rather how the disregard of international law and the growth of nationalist influence will reshape and shift the centre of gravity of international justice.
As states that advocated for the creation of accountability mechanisms in the 20th century have turned their backs on international justice, and are now contributing to its demise, it remains to be seen whether the gravity of accountability will be able to pull as many states together in the future.
But it is not all doom and gloom. The reshaping of international justice can offer opportunities to address gaps and weaknesses in the system.
That raises the question of whether other states are ready to take over the lead in the fight for accountability. Recent reactions by ICC member states might offer a first glimpse of what the remapping of accountability centres could look like.
US Sanctions: Lifting the curtain of hypocrisy
The US sanctions, while deplorable, are a symptom of a deeper malaise. This is not the first time that the US has issued sanctions against the ICC or its personnel.
During Trump’s first term the administration imposed sanctions against the ICC prosecutor at the time, Fatou Bensouda, as well as her top aides, over the investigation into alleged war crimes committed by American troops in Afghanistan.
While Trump’s predecessor Joe Biden lifted those sanctions, it was his administration that described the ICC arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant as “outrageous”, while welcoming the ICC arrest warrant against Russian President Vladimir Putin.
At least, the pretence of standing for principles of accountability has been abandoned under this administration and the curtain of hypocrisy has been lifted. What it lays bare is the true intentions and priorities of a state that used to lead the discussion on accountability but no longer cares about such adherence to international law.
A unified stance against impunity?
A day after Trump signed the executive order, 79 of the 125 ICC member states issued a joint statement without once mentioning the US, Trump or the executive order.
The statement can hardly be characterised as a roar of unified defiance. It concludes: “As strong supporters of the ICC, we regret any attempts to undermine the court’s independence, integrity and impartiality.”
“Regret” scarcely conveys the gravity of the situation and one asks: “Where is the condemnation? Where is the unified front?” The silence of the other 46 member states speaks volumes and raises serious questions about some states’ motives for refraining from signing.
While one might not expect anything else from strong Trump allies like Argentina or Italy, it is difficult to understand why countries like Djibouti refrained.
Djibouti, together with South Africa, Bangladesh, Bolivia, Venezuela and Comoros, issued a joint state referral of the Palestine situation to the ICC in November 2023.
Malawi is another ICC member state that has not signed the statement. But Malawi’s actions do not come as a surprise considering its government’s close relationship with the Israeli government, which has resulted in an agreement to export Malawian workers to Israel and a trend of abstention on UN resolutions directed against Israel.
A closer look at the 46 ICC member states which did not sign the statement further reveals that 18 of them are from Africa.
The example of the African group of states at the ICC highlights how states which subscribed to the principles of the ICC cannot find consensus on how to support the court against sanctions that aim to undermine its work. Some might argue that the high number of African states is related to the ICC’s history of cases on the continent.
The fractured response lays bare the weakness at the heart of the international criminal justice system. It exposes institutions like the ICC as vulnerable, reliant on the whims of states that might not stand up in public for the principle of accountability.
It further reveals a shift in the centre of gravity, where less powerful states, like South Africa, start leading accountability efforts and come together in multilateral exchanges with like-minded states like the Hague group, consisting of nine states from Africa, Latin America and Asia with the aim of defending and upholding rulings by institutions like the ICC and the International Court of Justice.
A more just world?
So what now? Is this the end of international criminal justice and accountability? What we can say is that we are in a time of change. To what degree the paradigm of international criminal justice will be altered remains to be seen and is heavily dependent on how states react, domestically and internationally, to the reality of right-wing nationalist agendas, intending to destabilise long-standing multilateral organisations and diminish independent accountability efforts.
The fight for accountability is not a linear path. It never has been. The beginning of this new direction might offer opportunities to address the shortcomings of current systems and institutions like the ICC.
The future of international justice could move away from the centralisation of accountability and towards a more regional or domestic approach. That would allow for stronger support in affected communities and enable international justice to become a forum of the people, not just something they can watch on TV a few thousand kilometres away.
The road ahead is challenging. That does not mean that institutions like the ICC have reached the end of their road. But, to prevent a world where impunity reigns and powerful states and individuals are above the law, states committed to the idea of international justice will have to rethink their approach to accountability and how to build meaningful alliances.
In this new period of international justice, states like South Africa can take a more substantial and active role. But such states must move away from double standards in order to establish trust and credibility in the system. As South Africa and many other states have gained respect and solidarity for their stance in the Palestine situation, the system can only grow if states which stand up for the idea of adhering to international law and accountability are open about their own shortcomings.
At the same time, civil society has to reclaim its relevance as a driving force in this endeavour, which will require a rethinking and reshaping of existing cultures within it. If the focus of international justice undergoes decentralisation, regionalisation or domestication, the same reasoning must apply to civil society by avoiding a situation where the international justice endeavour is only shaped by organisations from the Global North.
This is not the end. However, while the system of international justice hobbles along, many people continue to die at the hands of states that see themselves as unaccountable and above the law. The changes require all stakeholders to work effectively together and create a more sustainable and fair regime of international justice that can inspire others.
Dr Atilla Kisla is the international justice cluster lead at the Southern Africa Litigation Centre.
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