This blog piece is part of our ongoing “Rethinking Legal Research in and with Africa” symposium. To access the introduction explaining the framework, click here (ALS / LDC), to access the overview of the symposium click here (ALS / LDC).
Introduction
The workshop “Rethinking Legal Research in and with Africa: Legal Methods, Critical Perspectives, Decolonial Approaches in the Context of Human Rights, Sustainable Development” featured a presentation by Prof. Dr Thoko Kaime on “Legitimacy Critique as Method: African Decolonial Perspectives in Public International Law.” Kaime highlighted how public international law (PIL) is viewed through African experiences of historically and structurally unequal legal arrangements, including the selective enforcement of international criminal law.
Building on this perspective, this blog revisits the question of whether International Criminal Court (ICC) prosecutions can be understood as a manifestation of broader power asymmetries in PIL in 2026. We examine whether the concentration of ICC prosecutions involving African individuals can be explained, at least in part, by such asymmetries. Following Kaime as well as Ndlovu-Gatsheni and Chambati, we argue that addressing underlying power imbalances is central to decolonising PIL and strengthening its legitimacy.[1] We first outline recent ICC developments before assessing how a perspective centred on power asymmetries helps explain these developments.
Ambiguity in ICC Developments in 2024 and 2026
In light of recent ICC arrest warrants issued against Benjamin Netanyahu and Yoav Gallant – both Israeli government officials for alleged war crimes and crimes against humanity regarding “The Situation in Palestine,”[2] The US imposed unprecedented sanctions on the ICC and its officials.[3] This marked the first time a state imposes sanctions on ICC personnel on behalf of another state: a geopolitical ally.
By contrast, for similar crimes occurring elsewhere in Libya, Uganda, Darfur-Sudan, DR Congo, Kenya, or Côte d’Ivoire, the US acted in solidarity with the ICC by demonstrating unwavering support and facilitating the arrest and trial of individuals from those places before the Hague-based court.[4] The goal here is neither to revisit nor to assess the often-tense US-ICC relationship. We intend to highlight the extent to which African states have increasingly become the lens through which broader asymmetries within the current international criminal justice framework manifest, with ICC cases from Africa treated as a matter of expediency.
African states have always played a central role in the establishment and functioning of the ICC, with 33 out of 54 African nations still being parties to the Rome Statute. Mention can also be made of the significant number of self-referrals by some of these African nations to the Court. Yet the ICC-African relationship remains fraught with ambivalence in 2026. From staunch supporters, several African states have increasingly become fierce critics of the court. In 2025, countries, including Mali, Niger and Burkina Faso – founding members or among the early nations to join the ICC- signalled their intent to withdraw from the jurisdiction of the court.[5] They claim, among other things, “the weaponisation of international criminal justice as a tool of neocolonial oppression…becoming a case study of selective justice.”[6] Niger is currently in the process of formalising its withdrawal in accordance with article 127(1) of the Rome Statute. It is the only African State, after Burundi, to denounce the court’s jurisdiction. Its raison d’etre includes the “misuse and exploitation” of the ICC.[7] Although withdrawal from a treaty is envisaged in international lawmaking, it reduces accountability options and in the case of the ICC encourages impunity for alleged future crimes.[8] Additionally, it leaves potential victims of crimes with far fewer alternatives to seek justice, reparation and healing, as similar regional Courts do not exist. Efforts to establish an International Crimes Division within the would-be African Court of Justice and Human and Peoples’ Rights have stalled due to the lack of political will to sign and ratify the Amended Protocol on the Statute of the African Court of Justice and Human Rights.
Debates regarding the ICC being “unfairly weaponised” against African leaders and individuals are not uncommon in international criminal law scholarship.[9] Claims that the ICC only goes after perceived “soft African targets” seem pertinent from a practical point of view. From its pioneering judgement in 2012 to the most recent in 2025, all ICC convictions for Rome Statute crimes have arisen from situations in Africa. Although ICC-African cases or judgments alone cannot be seen as a tool to measure institutional bias against African states, from a socio-legal perspective, they nevertheless raise deeper questions regarding the standard used to select, indict, and prosecute individuals in international criminal law. Are prosecution patterns, as discussed above, genuinely driven by the overarching goal of justice and accountability? To what extent are they shaped by geopolitical realities and even broadly by deep power imbalances in the contemporary International legal order?
Contextualising the ICC Developments: Identifying Broader Power Asymmetries in PIL
One lens for interrogating these differential treatments is the analysis of power asymmetries in PIL. In the spirit of the Workshop, going beyond purely legalistic doctrinal analysis enables an interdisciplinary approach that helps decipher the context.
Power itself can be understood as “every chance, within a social relationship, of enforcing one’s own will even against resistance, whatever the basis for this chance might be” (in Weberian terms).[10]African approaches frame power more relationally, as a capacity grounded in community, legitimacy, and moral authority, rather than coercive control.[11]Both views locate power in social, political and economic relations that extend from individuals to institutions and states, thereby shaping law.
PIL (see, e.g., Art. 2(1) of the UN Charter) proclaims the sovereign equality of states. In practice, however, one must distinguish between formal legal equality and social/factual (in)equality.[12]
Compared with domestic law, PIL disposes of fewer adjudicatory mechanisms, leaving greater scope and vulnerability for power and its asymmetries to unfold.[13] National law is institutionally better placed to structure and enforce the distribution of power in accordance with its own standards of justice. In international law, however, the very terms of a just distribution of power remain disputed, and enforcement is even further removed.
These power asymmetries PIL is vulnerable to can be divided into legal and non-legal power asymmetries.
An example of a legalised power asymmetry is the UN Security Council’s veto right, which ensures powerful states are not obliged to act without consent.[14] Any five of the permanent members can prevent the adoption of an unfavourable substantive resolution, meaning that the Council cannot authorise these if opposed by a major power. No African state is a permanent member, leaving only the option for ever-changing non-permanent members. Another example of a legalised power asymmetry is regulations that provide weighted voting, such as those in international financial institutions, for example, the International Monetary Fund.[15] One of these legal power asymmetries in the ICC–Africa context lies in the UN Security Council’s Referral and Deferral of Powers under Articles 13(b) and 16 of the Rome Statute.
These Articles allow the UN Security Council, as an organ, and thus indirectly its members, to refer or defer a procedure.[16] This encompasses the influential permanent five Security Council members: China, France, Russia, the UK, and the US (Art. 23(1) UN Charter). From these, only France and the UK are parties to the Rome Statute. This institutionalises a legal power asymmetry because permanent Security Council members who are not parties to the Rome Statute can nevertheless influence whether situations are referred to the ICC or deferred. They thus exercise authority over the Court’s jurisdiction without being bound by the same treaty obligations as ICC member states. In this case, one might argue whether the fault lies in the Rome Statute or the UN Charter,[17] but the outcome is a power asymmetry disadvantaging inter alia African states in PIL. For instance, controversial were the UN Security Council’s referrals to cooperation, invoking its rights under Art. 13(b), regarding Sudan and Libya (non-States parties).[18] In no other situation has the UN Security Council referred a non-state party to the ICC.
Beyond legal asymmetries, non-legal power asymmetries in PIL may help explain the asymmetric picture of ICC proceedings. Non-legal power asymmetries in PIL refer to its being ignored, allowing pure power to unfold, relating to military,[19] economic,[20] cultural, and geographic enablers.[21] These range from convening treaty negotiations and agenda-setting to the final designs of international legal frameworks.[22] Negotiations concerning the adoption of the ICC Statute in Rome serve as a very useful example. As talks proceeded in Rome, the majority of Global South countries opposed the idea of granting the UN Security Council the power to refer cases to the Court and to defer cases.[23] One reason was to circumvent existing power hierarchies within the ICC’s institutional framework by preventing permanent members of the Council from using their powers to influence the Court.[24] Byers in 1999 outlined the issue as unequal state capacities affecting “development, maintenance and change of rules of international law”.[25] Also, powerful countries prefer bilateral treaties and soft law to collective agreements. Both facilitate the exercise of superior power by enabling actors to circumvent collective constraints, intrude upon the sovereignty of weaker states, and leverage disproportionate technical expertise and resources.[26] This explains why the US, China or Russia avoid entering into collective mechanisms of accountability. In our ICC – Africa developments, one can observe non-legal power asymmetries unfold in the track record of ICC actions as well as in statute references. In the past, primarily African citizens have been prosecuted by the ICC, as outlined above, with war crimes suspects from the US and Russia not being part of the ICC’s jurisdiction.[27]
Ways forward
Power asymmetries in PIL extend beyond formal legal rules and continue to shape perceptions of selective justice. Addressing them requires both institutional and scholarly action. The ICC should have greater resilience (ultimately conferred by member states) to geopolitical pressure, and accountability should be applied more consistently across states. At the same time, scholars can contribute by exposing power asymmetries, engaging more seriously with underrepresented perspectives, and adopting interdisciplinary approaches that link legal outcomes to their political and historical contexts. The ICC–Africa debate demonstrates that strengthening the legitimacy of international criminal justice as well as PIL ultimately requires confronting the unequal power relations that shape it.
[1] Thoko Kaime, ‘Legitimacy, Public International Law and Intractable Problems’ (2023) 83 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 399 <https://doi.org/10.17104/0044-2348-2023-3-399>; Sabelo J Ndlovu-Gatsheni and Walter Chambati, Coloniality of Power in Postcolonial Africa: Myths of Decolonization (CODESRIA 2013) <https://muse.jhu.edu/book/25053/> accessed 1 July 2026.
[2] International Criminal Court (2024) ‘Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant’ <https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges > accessed 7 May 2026.
[3] US Department of State (2025) ‘Imposing Further Sanctions in Response to the ICC’s Ongoing Threats to Americans and Israelis’ <https://www.state.gov/releases/office-of-the-spokesperson/2025/08/imposing-further-sanctions-in-response-to-the-iccs-ongoing-threat-to-americans-and-israelis/> accessed 7 May 2026.
[4] Sarah L Ochs ‘The United State, the International Criminal Court and the Situation in Afghanistan’ (2019) 95 Notre Dame Review Reflection 89, 92.
[5]Communiqué Officiel: Le Mali, le Burkina Faso et le Niger se retirent de la CPI avec effet immédiat (September 2025). <https://www.youtube.com/watch?v=jaqYCBnZVE3A> accessed 22 May 2026.
[6] Ibid.
[7] United Nations, Rome Statute of the International Criminal Court: Niger: Withdrawal, Depository Notification C.N.251. 2026.TREATIES-XVIII.10 (22 June 2026).
[8] Mihai Stefănoaia ‘The Challenges of International Justice Amid Geopolitical Realities’ (2025) 3 Proceedings of the 7th International Conference on Future of Social Sciences and Humanities 1. <https://doi.org/10.33422/fshconf.v2i1.1250> accessed 22 May 2026.
[9] Naldi, Gino and Konstantinos D Magliveras, ‘The International Criminal Court and the African Union: A Problematic Relationship’, in Charles Chernor Jalloh, and Ilias Bantekas (eds), The International Criminal Court and Africa (Oxford, 23 November 2017) https://doi.org/10.1093/oso/9780198810568.003.0006 > accessed 22 May 2026; Mark Kersten, ‘Africa-ICC Relationship: More and Less than Meets the Eyes (Part 1) (17 July 2015) https://justiceinconflict.org/2015/07/17/the-africa-icc-relationship-more-and-less-than-meets-the-eye-part-1/> accessed 22 May 2026.
[10] Max Weber and Keith Tribe, Economy and Society: A New Translation, 134 (Harvard University Press 2019).
[11] Ebikisei Stanley Udisi, ‘African Political Philosophy: Theories of Power, Justice, and Governance’ (2024) 2 Advances in Law, Pedagogy, and Multidisciplinary Humanities 84; J Abbink, Mirjam de Bruijn and Gerti Hesseling (eds), Land, Law and Politics in Africa: Mediating Conffict and Reshaping the State (Brill 2011).
[12] James Crawford, ‘Islands as Sovereign Nations’ (1989) 38 International and Comparative Law Quarterly 284 <https://doi.org/10.1093/iclqaj/38.2.277>.; Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law, 36 (1st edn, Cambridge University Press 1999) <https://doi.org/10.1017/CBO9780511491269> accessed 18 May 2026.
[13] Paul W Kahn, ‘Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order’, 2 <https://chicagounbound.uchicago.edu/cjil/vol1/iss1/4> accessed 21 May 2026.
[14] ibid, 8.
[15] Nico Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ (2005) 16 European Journal of International Law 369, 398.<https://doi.org/10.1093/ejil/chi123>
[16] Lea Schneider, ‘The International Criminal Court (ICC) – A Postcolonial Tool for Western States to Control Africa?’ <https://doi.org/10.5167/UZH-193279> accessed 21 May 2026.
[17] Dire Tladi, ‘When Elephants Collide It Is the Grass That Suffers: Cooperation and the Security Council in the Context of the Au/Icc Dynamic’ (2014) 7 African Journal of Legal Studies 381.
[18] Ibid; UN Security Council Resolution 1593 (2005) and UN Security Council Resolution 1970 (2011).
[19] ‘Why Germany and Europe Should Clearly State Their Commitment to International Law’
<https://www.idos-research.de/en/the-current-column/article/why-germany-and-europe-should-clearly-state-their-commitment-to-international-law/> accessed 21 May 2026.
[20] Christiana Agbo-Ejeh, Asymmetric Power Relations and International Trade Law: A Legal Analysis of Economic Partnership Agreements (1st edn, Routledge 2024) <https://doi.org/10.4324/9781032615059> accessed 21 May 2026.
[21] Farshad Ghoodoosi, ‘International Law Unmasked | Yale Journal of International Law’<https://yjil.yale.edu/posts/2026-01-12-international-law-unmasked> accessed 21 May 2026.
[22] William W Burke-White, ‘Power Shifts in International Law: Structural Realignment and Substantive Pluralism’ [2014] SSRN Electronic Journal, 26.<https://doi.org/10.2139/ssrn.2378912> accessed 21 May 2026.
[23] Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn, CUP 2019) 149 -152.
[24] Ibid.
[25] Byers (n 12).
[26] Krisch (n 15), 399; Andrew T Guzman, ‘Explaining the Popularity of Bilateral Investment Treaties’ in Karl P Sauvant and Lisa E Sachs, The Effect of Treaties on Foreign Direct Investment (1st edn, Oxford University Press New York 2009); Anne-Marie Slaughter, A New World Order (Princeton University Press 2004).
[27] Okurut Emmanuel and Among Hope, ‘The Contentious Relationship between Africa and the International Criminal Court (ICC)’ (2018) 10 Journal of Law and Conflict Resolution 19.
