Kindred Spirits?

Between 18 and 24 June 2026, Niger, then Mali and Burkina Faso, deposited their formal instruments of withdrawal from the Rome Statute with the UN Secretary-General. With this act, the intention stated in the joint declaration issued by the Alliance of Sahel States (AES) in September 2025 turned from words to deeds. Under Article 127 (1), this step started a one-year clock until withdrawal becomes final.

The Assembly of States Parties (ASP) voiced deep concern, warning that departures “risk undermining the collective pursuit of justice and weakening global efforts to end impunity”. Similar statements followed from Human Rights Watch and Amnesty International, framing the move as a major blow to accountability in the Sahel.

At almost the exact same moment, the ICC has come under intense pressure from a different part of the world. Under the second Trump administration, Washington’s traditional scepticism toward the Court hardened into active coercion, marked by executive sanctions against Court officials and statements regarding dismantling the ICC. Recently, the campaign escalated further, with sanctions targeting the Court itself. Already, this stance by the United States (US) acts as a legitimising narrative for others: rhetoric and actions originating in Washington have been instrumentalised by states such as Chad and Venezuela to justify their own signals of departure.

It is tempting to fold these two pressures into a single, undifferentiated story of “backlash against international justice”, in which the AES’s exit and Washington’s coercion appear as interchangeable symptoms of the same authoritarian impulse to escape accountability. Much of the literature on the Court’s “legitimacy crisis” already separates consent-based from application-based objections: The US purports to reject the Court’s authority over states that have never consented to its jurisdiction. The AES, by contrast, ostensibly attacks not the existence of that authority but the unequal manner in which, on this view, it has been exercised. The AES thus joins an existing line of criticism that has been and continues to be expressed by, for example, the African Union.

What that separation alone does not yet capture is that the two critiques are not merely different; they are structurally opposed: satisfying one intensifies the other. We therefore argue that any attempt by the Court to answer the second criticism, by extending accountability more consistently to powerful states and their allies, is precisely the course of action that intensifies the first. The ICC is thus caught in a pincer: accused simultaneously of reaching too far and of not reaching far enough. This predicament is not unique to international criminal law, however, as the proceedings between South Africa and Israel before the ICJ show.

AES: A Decolonial (?) Exit

Mali ratified the Rome Statute in 2000, Niger in 2002, Burkina Faso in 2004, all three among the earliest ratifiers on the continent, at a moment when African states made up close to a third of the bloc that brought the Statute into being. Their objection is therefore necessarily a selective-enforcement objection rather than a jurisdictional one.

The AES claim of unjust selectivity against the African continent, and the broader African Union critique it draws on, points to the well-known disproportionality of “situations” and cases on the African continent in relation to their share of state parties. The standard rejoinders deserve to be stated fairly – many African situations arrived via self-referral rather than imposition; African judges and investigators participate throughout the Court’s work; the Statute’s temporal mandate under Article 11 limits what the Court can achieve; and some African governments have used ICC referrals for their own domestic political ends.

The AES states, materially and militarily incapable of threatening a Hague-based tribunal from the outside, used a right every state party to a multilateral treaty holds: formal withdrawal under Article 127. It is a slow, public, procedurally bound act – paired, notably, with the (so far aspirational) announcement of a regional alternative, a Sahel Criminal and Human Rights Court grounded, in AES officials’ language, in “endogenous mechanisms for the consolidation of peace and justice” rather than institutions shaped by “imperialist powers”.

USA: Attacks from the Sidelines

In the case of the US, the Clinton administration declined to submit the treaty for ratification and sharpened when the Bush administration formally “unsigned” it in 2002, is framed as a consent-based objection: the Court, on this view, wrongly asserts jurisdiction over nationals of a state that never agreed to be bound, in violation of ordinary treaty principles and, on the US reading, of the constitutional rights of Americans. The “American Service–members’ Protection Act” (ASPA), passed the same year, authorised the President to use “all means necessary and appropriate”, to free US personnel held by the Court – a provision earning the nickname “the Hague Invasion Act”. Given that the US never joined the Rome Statue in the first place, its only tool for shaping the Court’s behaviour is external pressure exercised against an institution it was never inside – sanctions on sitting judges, asset freezes, travel bans, the standing statutory authorisation of force under ASPA that has, so far, never been invoked.

Under the second Trump administration, this long-standing posture of defensive exceptionalism shifted into a strategy of active disruption aimed at dismantling the Court’s operational capacity. Executive Order 14203, signed 6 February 2025, sanctioned ICC personnel over what the White House called “illegitimate and baseless actions targeting America and our close ally Israel”, targeting former Chief Prosecutor Karim Khan and several judges. Secretary of State Marco Rubio’s public framing went further, describing the Court as run by a coalition of “leftist nongovernment organisations, smug globalists, and hostile Third World governments”.

Yet this claim of ideological capture sits awkwardly with the Court’s historical docket: for most of its existence, no P5 state or major non-party ally faced trial. When the Court did move to expand its reach, issuing arrest warrants for Russian officials over Ukraine in 2023 and Israeli leaders in 2024, it demonstrated a willingness to step outside its traditional geographical focus. Whilst the Biden Administration viewed the measures against Russia quite favourably, the arrest warrants against Israel sparked fierce criticism. The Trump Administration, however, again treated geopolitical interests as more pressing than the Court’s warrant, engaging Putin at a summit in Alaska and agreeing to a further meeting in Hungary.

Political Trajectories and Rhetorical Traditions

The US position has thus remained relatively durable across administrations of both parties even as its intensity has varied. The throughline is the defence of US military personnel deployed abroad and, since the Netanyahu and Gallant warrants, the defence of Israel specifically.

The AES withdrawal, by contrast, cannot be separated from the trajectory of three military juntas that seized power between 2020 and 2023, that had already exited ECOWAS and its Court of Justice a year and a half earlier, and whose departure from the Rome Statute fits a broader pivot away from France and Western partners toward deepened security cooperation with Russia and other powers such as Turkey.

The rhetorical registers follow the same divide. Washington’s objections are couched in constitutional language even where the underlying motive is geopolitical, and Rubio’s framing folds this into an explicitly ideological idiom about globalism and hostile blocs. The AES’s objections are couched in the language of postcolonial critique.

Interestingly, states like Chad, have begun to both invoke the language of “neo-colonialism” while simultaneously aligning themselves with a US position aimed at systematically shielding powerful non-party states and their allies from accountability. Obviously, this schizophrenic stance amounts to a blatant instrumentalisation of the current situation.

To be clear, engaging with the resurgence of decolonial vocabulary in Sub-Saharan Africa is not to relativise the deeply problematic trend toward military rule in West Africa, nor to gloss over alleged violations of international law in the Sahel and the ongoing ICC investigations in Mali that contextualise the exit. The risk inherent in the current situation is obvious: genuine, structural flaws in the international legal order can be weaponised by actors to shield themselves from accountability.

But it would be a mistake to simply dismiss these arguments out of hand because of the nature and potential intentions of the governments advancing them. The objective is not to persuade autocratic regimes that are firmly committed to exit, but rather to reach the fence-sitters. Supporters of international criminal law must remain conscious of its status as the international community’s sharpest sword – and the enormous need for legitimacy that comes with it. Designed to sanction the gravest disruptions of human coexistence collectively, international criminal justice carries a potentially unifying and emancipatory power. But to realise that promise, it must stand on solid ground, minimising the structural vulnerabilities that its opponents can so easily instrumentalise for their own ends.

Caught in a Pincer

How, then, can this situation be addressed?

As mentioned above, the two critiques cannot be answered one at a time, they pull on the same axis in opposite directions. This is why the response cannot be a single undifferentiated defence of “the Court” against “attacks”. It requires meeting the two critiques on their separate merits.

Roughly, one can distinguish issues at the level of state conduct and court practice, as well as issues in the structure of the Rome Statute system itself.

On the level of conduct, the US critique deserves to be met not with concession but with a defence of exactly the independence it attacks. A court that abandoned warrants against nationals of powerful states to appease Washington would not answer legitimacy concerns but confirm them.

This defence is credible only if it includes an honest reflection on the Court’s past docket. Naturally, investigations should be only opened and pursued where the evidence warrants, with complementarity respected. But the Court must also confront its image of turning a blind eye to powerful actors. The record here is mixed: The suspension of the preliminary examination of UK conduct in Iraq and the difficulties surrounding the Afghanistan investigation and US conduct sit uneasily with the Court’s claim to apply the law equally. Similarly, the overt criticism by various States Parties, Germany among them, when the Court turned to Israel shows that support for judicial independence is credible only if States Parties support it consistently, including when it is inconvenient for them.

Beyond conduct, more ambitious reforms may be needed to address the deeper problems of the ICC. The postcolonial critique is not only about whom the Court prosecutes but about what it recognises as harm. Critical scholars have long argued that international criminal law, by focusing on individual responsibility for discrete acts, can leave the political-economic structures behind mass violence out of view.

Two routes are available. The first lies within the existing Statute. The OTP’s December 2025 environmental policy treats environmental damage as relevant to gravity, charging and evidence for existing crimes, though it creates no new offence. The second route is amendment of the Rome Statue: The proposal by Vanuatu, Fiji and Samoa might be a chance to increase support for the ICC and counter the current disbalance. Such an effort, however, would require a critical reckoning with its costs and benefits and especially an engagement with Global South perspectives (see e.g. here or here).

Financially, the Court needs to stand on solid foundations. Every State Party should pay its assessed contribution; doing so is both a practical necessity and a political statement of support. With arrears of tens of millions of euros, the immediate problem is pressing. More fundamentally, however, the Court needs a budget commensurate with its mandate. Voluntary contributions can supplement it, but they carry risks of selective support and political influence.

Finally, international justice cannot survive its present crisis as an altar of Western liberalism. It must be rebuilt as a shared table, where the grievances of smaller states carry the same weight as the interests of great powers. Concretely, this requires a genuine and structured dialogue among States Parties, the Court and scholars about the categories underlying the present system.