International Institutions of Justice from Africa to Palestine: Racialized justice or a tool for liberation?

On the morning of November 21, I entered the classroom where I teach a course titled Africa and Human Rights, expecting our discussions to once again revolve around the familiar litany about the international system’s inherent bias against the Global South. But after the International Criminal Court issued arrest warrants that morning for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, the energy in the classroom was different.

Reflecting on the historical trajectory of war crime tribunals, my students learned how the ICC has largely functioned as a biased vehicle to punish African leaders, despite its stated mission to carry out a “global fight to end impunity.” As we analyzed the ICC’s patterns of arrest warrants, trials, and prosecutions since its inception in 2002, the imbalances in prosecuting perpetrators became even more glaring, while Israel continued to enjoy full immunity for war crimes, crimes against humanity, and plausible genocide in Gaza. But that Tuesday morning, following the announcement of arrest warrants for Netanyahu and Gallant, the excitement and eagerness of my students to discuss this new development was palpable.

Even though I had tried to get my students to think about the emancipatory possibilities of international law — by offering legal protections to stateless people and refugees, for example — criticism of international legal instruments and the application of universal human rights principles prevailed. The course covered a handful of examples to offer alternative views, such as South Africa’s genocide case against Israel at the International Court of Justice. Yet, when I asked students to reflect on whether international law serves a tool for inordinate punishment — or, as some argue, a form of recolonization of the Global South — or a means for liberation, only three out of 22 supported the latter position. Their sentiment about international law echoed the growing disillusionment with global institutions and mechanisms in the Global South.

Established by the Rome Statute in 2002, the International Criminal Court became the world’s first institution tasked with investigating and trying individuals charged with the gravest crimes of concern to humanity. At its inception, the court was seen as the successor to the transitional justice legacies of the post-World War II Nuremberg and Tokyo trials. It was initially celebrated as a permanent heir to temporary courts, such as those dealing with major crimes in the former Yugoslavia and in Rwanda, intended to address the weaknesses and failures of national jurisdictions, especially in post-conflict settings.

The ICC held its first hearing in 2006 in a case against Thomas Lubanga Dyilo, a war leader from the Democratic Republic of Congo who stood before the Pre-Trial Chamber facing several charges, including conscripting and enlisting children under 15 into an armed conflict during the 2002 war. Although Dyilo, in whose name the court’s first arrest warrant was issued, did not personally conscript the children, he was accused of “command responsibility” — at the time a newly conceptualized crime meant to absolve child soldiers of responsibility for war crimes. Yet in assigning responsibility to an African leader, the court individualized major crimes. Reducing justice to the assignment of individual responsibility for war crimes, however noble, ultimately obscures the larger socio-economic and geopolitical context conducive to the eruption of violence in the first place — in this case, the legacies of colonialism. This elision reinforces racialized tropes that portray Africans as inherently violent. While the legal and conceptual framework of the ICC was not designed to take into account such extra-institutional and historical factors, its exclusive focus on punishing Africans evoked postcolonial anxieties.

In her analysis of the Lubanga case, anthropologist Kamari Maxine Clarke argued that victims’ suffering in the 2002 conflict in Congo was instrumentalized on the global stage to vilify and punish African leaders. The pain of victims is acknowledged only insofar as it serves to demonize African leaders and legitimize the court’s authority. She calls this “fictions of justice” — a dramatization of judicial proceedings that fails to address the root causes of the conflict or produce concrete outcomes for lasting peace.

“International justice draws its power from the figure of this victim of war — in wars in which the casualties have become part of our collective imagination. This power is consolidated through the demonization of the adult African perpetrator, whose actions, often made in the name of national freedom struggles, are represented as responsible for the decimation of local populations,” she writes in Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa.

Over the next seven years, the ICC investigated, arrested and prosecuted a disproportionate number of African leaders. For example, despite receiving over 8,137 communications from more than 130 countries, successive prosecutors investigated only eight countries, all of which were African: Uganda, the Democratic Republic of Congo, the Central African Republic, Sudan, Kenya, Guinea, Côte d’Ivoire and Libya. Furthermore, 47 out of 54 individuals indicted by the ICC as of April last year were African. Despite initial enthusiasm from the international community, including African states, the ICC eventually cemented its reputation as a court against Africans.

The court’s supporters argue that the exclusive targeting of Africa is due to weaknesses in the continent’s national courts systems, which fail to prosecute major crimes. However, the broader picture reveals a pattern of criminalizing African state violence, while the liberal violence of powerful Western states remains unpunished. Several African governments have argued that the ICC administers “selective justice” by steering clear of countries with diplomatic, economic, and political clout, such as the United States, the United Kingdom, Russia and China. The torture in Abu-Ghraib prison in Iraq and at Guantanamo Bay — both under the supervision of the US government — as well as the ongoing mass atrocities committed by Israel in its genocide against Palestinians, exemplify the distinction between African/illiberal and liberal violence that undergirds and authorizes the ICC’s work.

African leaders have repeatedly criticized the court for its disproportionate focus on the continent. Rwandan President Paul Kagame, for example, stated that Africans have become the “scapegoat” in the ICC’s push to gain legitimacy and enforce its mandate. "From the time of its inception, I said there was a fraud basis on which it was set up and how it was going to be used," Kagame said. "I told people that this would be a court to try Africans, not people from across the world. And I don't believe I have been proven wrong.”

The court’s selective justice has led the African Union to call on its members to adhere to a policy of non-cooperation and non-compliance with the court in contravention of the obligations of states parties to the Rome Statute. While such an outright snubbing of the court was discouraged by leading African figures such as former UN Secretary General Kofi Anan and Nobel Peace Laureate Archbishop Desomond Tutu, the AU’s call resonated with Burundi. Having ratified the Rome Statute in 2004, Burundi became the first nation worldwide to withdraw its signatory status in October 2017 after the court launched preliminary investigations into possible crimes against humanity committed by state agents engaged in political violence. “The ICC has shown itself to be a political instrument and weapon used by the West to enslave” other states, said Willy Nyamitwe, the spokesperson for Burundi’s presidential office. “This is a great victory for Burundi because it has defended its sovereignty and national pride,” he continued.

The language of sovereignty and anti-colonialism used to discredit the court has, in fact, been employed by local despots to stifle government critics and evade accountability. Kagame is criticized for his authoritarianism and incumbent presidency, while Burundian human rights activists slammed the withdrawal from the ICC as a way to evade war crimes. Although such critiques are consistently misused, they do not diminish the reality that the work of the ICC is deeply shaped by the global power imbalances in which it is embedded. International criminal law has been described by Third World legal approaches and Marxist perspectives as the “reproduction of the civilizing mission” and as “capitalism's victor justice.” Noura Erakat and John Reynolds argue this in their 2021 text, We Charge Apartheid? Palestine and the International Criminal Court. In fact, the pursuit of justice has ended up racializing Africa and reinforcing earlier colonial ideologies that exceptionalize African violence as inherently more brutal, while rendering liberal violence invisible and shielding so-called democracies from accountability.

Yet despite the racialization of international crime adjudication in the post-Cold War era, other forms of critical engagement with and appropriation of international justice have emerged. The landmark arrest warrants issued against the sitting leaders of a major US ally, Israel, brings to light a less familiar story about international justice institutions in which Africa is not only the target of racialized criminal investigations but also an active player in contesting and repurposing these institutions for a liberatory agenda. Wielding the power of international law, South Africa intervened twice in the question of Palestine over the past 15 months.

Extending the historical ties between the African National Congress and the Palestine Liberation Organization, South Africa first intervened in an international case related to Palestine on November 23, 2023 when it sent the Office of the Prosecutor at the ICC a referral to support the case that had been underway since May 2018. Following its accession to the Rome Statute in 2015, the State of Palestine submitted an application calling for an investigation into possible crimes against humanity committed by Israel beginning in June 2014 with no specified end date. The Prosecutor announced in February 2021 that the court would open investigations into the alleged crime, with jurisdiction extending to Gaza and the West Bank. Following Israel’s retributive war after October 7, South Africa joined the State of Palestine in requesting that the court expand its investigation to include actions committed after that date. South Africa’s earlier intervention at the ICC, however, was overshadowed by its forceful and momentous confrontation with Israel at the International Court of Justice.

In December 2023, South Africa invoked the Genocide Convention to institute proceedings against the State of Israel and requested that the ICJ impose provisional measures on it. This effort led the ICJ to rule in January that there is a “plausible” genocide in Gaza, ordering Israel to take provisional measures to prevent the execution and completion of the crime.

These bold moves invite us to revisit the role of international law and imagine a different world in which global justice prevails over Western geopolitical interests. Even if the ICC’s arrest warrants do not lead to the detention or prosecution of Netanyahu or Gallant, this unprecedented step remains significant in exposing and challenging the selective impunity enjoyed by powerful nations and their protégés.

South Africa’s rise to the forefront of the pursuit of justice renewed hopes for the subaltern, the marginalized, and the Global South for reversing the pattern of bias in international legal institutions and reclaiming some of their liberatory promises. Drawing on its remarkable history of the anti-Apartheid struggle for liberation, South Africa has emerged as a key player in repurposing international law in service of the Palestinian cause.

South Africa’s international legal activism invites us to imagine alternative futures in which powerful Western nations and their allies are held to the same standards as their adversaries. Even if the material outcomes of these legal efforts are not immediately felt by Palestinians or other oppressed groups in the Global South, such legal actions can be leveraged to strengthen the broader movement for the liberation of Palestine. As Erakat and Reynolds argue, international law can offer liberatory pathways if it is “harnessed tactically in the ‘legitimacy war’ regardless of victory or defeat in the courtroom.”1 This act of tactical harnessing as a larger political strategy is precisely what South Africa has undertaken in its challenge to the international community over its silence and complicity with Israel. The reworking of international legal language and institutions could prompt a much-needed reexamination and reform of the global order, which has been gradually losing legitimacy — most markedly since the start of Israel’s genocidal onslaught on the Gaza Strip.

While, as Audre Lorde has powerfully declared, “the master’s tools will never dismantle the master's house,” international law can still be appropriated for liberatory purposes that may shake its foundation. Shaking the master's house through international litigation, alongside other tactics such as global protests, direct action, political advocacy and boycott campaigns, could ultimately contribute to dismantling the edifice of the masters and their accomplices.

1 Erakat, Noura, and John Reynolds. “We Charge Apartheid? Palestine and the International Criminal Court.” Third World Approaches to International Law Review. April 20, 2021.