States and the ICC must avoid creating a two-tier justice system

Ukrainian soldiers in patrol on the front lines (Photo: Getty)

The International Criminal Court (ICC) has been asked – by forty-one states – to investigate allegations of mass atrocities committed in Ukraine. That’s no easy task. Nor is it cheap. In a show of unprecedented support for the ICC, a number of Western states have volunteered help to bolster the Court’s investigation. Should the ICC accept this support, or does it risk deepening the inequalities of international law and justice?

Investigating atrocities is difficult at the “best” of times, when evidence is readily available, investigations are well funded, and violence has subsided. The ongoing conflict in Ukraine presents far from ideal conditions, and the ICC is far from flush. The Court is a cash-strapped institution because many states, including some of those now sending it voluntary donations, have long insisted that its budget be restricted despite its increasing workload.

Soon after announcing the Court’s decision to open a war crimes investigation in Ukraine, ICC Chief Prosecutor Karim Khan asked the international community to offer support. A number of states answered Khan’s call. Among othersLithuania, the United KingdomCanada, and France sent the ICC additional funds and/or their own legal authorities to support the probe in Ukraine. The level of support for the ICC’s investigation in Ukraine is impressive and could increase Ukrainians’ chances of finding justice. But many are asking: will such support for accountability be offered to victims of mass atrocities outside of Europe?

In answering this question, it is important to distinguish self-serving “whataboutism” from the pleas of those asking: “why not us?”.

The former is a vacuous tool of distraction, used by governments such as those of Russia and Israel to deflect from allegations of war crimes they themselves are facing. They and their backers insist atrocities should not receive scrutiny from the ICC because justice has not been meted in Iraq, Syria, or Afghanistan.

The latter, as Ralph Wilde argued in a recent article for Opinio Juris, is a plea aiming not to deny justice in Ukraine, but to demand similar commitments elsewhere:

Some are asking ‘what about’, not to justify Russia’s actions, but actually, the reverse… to ask why, when violations of international law of the same or a similar nature happen elsewhere, there is not the same response – a response they would welcome – by those who are now condemning Russia… Such people are asking: why does the international community not seem to care about us, as far as enforcing international law is concerned?

Systemic racism does not end when the world of international justice begins; it influences the institutions of international relations and global justice. That includes the ICC, no matter how lofty and laudable its goals are. It is only natural to worry that the overwhelming support offered to the ICC in Ukraine represents another instance in which justice is made available to some people in some places some of the time and not to all.

Some earnest advocates of the ICC believe the Court should make a principled stand and reject earmarked contributions from states. Rebecca Hamilton, for example, maintains that while Ukraine is deserving of the attention it is getting, the notion that funds are available to the ICC only when there’s a crisis in Europe is “offensive.” She adds that if states “want to support the work of the Court, it’s got to be a court for everybody… We are seeing the structural racism of the international system playing out before our eyes.”

Others are demanding Western support translate into a sustained commitment to the ICC. In an open letter to the Court, the Coalition for the International Criminal Court stated that “[u]nprecedented support for the role of the ICC should be matched by government commitment to the sustainable funding needed to deliver justice in all situations that come before the Court.”

A sense of sobriety and caution is advisable for the ICC. States often use voluntary funding to control the priorities and objectives of international organisations. The Court – and Prosecutor Khan in particular – must protect the institution’s impartiality and independence. The ICC should likewise not assume that current state support will last. The Prosecutor and his officers need only look to past experience to understand that states are fickle when it comes to supporting the Court.

Following referrals of Darfur in 2005 and Libya in 2011 to the ICC by a largely unified United Nations Security Council, state support for the Court evaporated. Due to American ambivalence, the Security Council refused to provide the ICC with funding for either investigation. To this day, the ICC has never prosecuted anyone involved in atrocities in Libya. The Court’s first-ever trial of a perpetrator involved in atrocities in Darfur was the consequence not of any efforts of the Security Council or its member states, but Sudanese citizens rising up against the regime of former President Omar al-Bashir.

It is unlikely that the ICC Prosecutor will reject the influx of support offered by Western states. After all, he asked for it. But it would be wise for the Prosecutor to contemplate what impression an embrace of Western resources earmarked for Ukraine will make on victims and survivors in situations where the geopolitical interests of the West are less clear or even opposed to accountability. This is especially important after the Prosecutor effectively dropped an investigation into alleged war crimes committed by US armed forces in Afghanistan in the wake of sanctions and coercive diplomacy from Washington.

As for states supporting the ICC’s investigation in Ukraine while nickel-and-diming the Court on its budget, they have an opportunity to avoid allegations of hypocrisy by agreeing to provide sustainable funding to the ICC. Not doing so now would risk entrenching a two-tier system of international justice.

Prosecutor Khan recently said that seizing “this moment collectively… is to the benefit not only of this office, or to the ICC, but to the whole international legal order.” That will only be true if this moment is not a harbinger for sustained inequality in international law. The challenge – to states and the ICC – is to make the unprecedented the precedented, the exceptional in Ukraine the norm for all.

A version of this article was originally posted at Al Jazeera.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Canada, International Criminal Court (ICC), International Criminal Justice, Israel, Russia, Syria, Ukraine. Bookmark the permalink.

3 Responses to States and the ICC must avoid creating a two-tier justice system

  1. God point Mark.

    Let’s take Yemen a non-party to the Rome Statute as an example.

    Monarchists & Monarchy-led Coalition Slaughter 10,000 Innocent Yemeni Children On Democratic Republic Soil Since 2015. NO UN Atrocity Crimes Tribunal Yet?

    UNICEF says 10,000 children killed or maimed in Yemen since 2015

  2. Another thing is Mark,

    All hats off to the democratically elected leader of the Citizens Democracy, France for trying his best to stave off any armed conflict & aggression.

    True Democracy Elected Leaders Do Their Darnest To Save Lives!

    Whereas, Monarchists & Monarchy-led Coalition Slaughter 10,000 Innocent Yemeni Children on Democratic Republic Soil Since 2015.



  3. Hakimi Abdul Jabar says:


    Looking at the contention that Genocide is limited to mass killing by direct violence and the pronouncement of internationally-recognized cases of genocide in relation to Rwanda and the former Yugoslav states, a very substantial number of Yemenis, being children and civilians, have been killed through the direct violence of deliberate airstrikes related to the monarchists and monarchy-led unspeakable evil coalition’s bombing attacks.

    The synchronized attack on human life in Yemen via indiscriminate aerial bombing attacks and naval blockades are clearly acts which were committed and are being committed by the dastardly EVIL monarchists and monarchy-led coalition of evil to kill members of the Yemeni national, ethnic and ethical group and deliberate inflicting on the Yemenis conditions of life calculated to bring about its physical destruction in whole or in part pursuant to Art. II (a) and (c) of the 1948 Convention.

    This calls for a UN sanctioned International Criminal Tribunal as had been done for Rwanda and the former Yugoslav states.

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