A new politics of international criminal justice: accountability in Ukraine and the Israel–Gaza war

Abstract

In recent years, the world's most pressing conflicts have prompted a series of diverse international legal efforts to advance accountability for mass atrocities. In 2019 The Gambia, backed by the Organisation of Islamic Cooperation, filed a case at the International Court of Justice (ICJ) against the government of Myanmar for the crime of genocide. In December 2023 South Africa followed suit, filing a case against Israel for violating the Genocide Convention with its actions in Gaza. The pursuit of accountability at the onset of Russia's invasion of Ukraine by transnational coalitions of states, civil society and individuals was unprecedented, as detailed below. Even in the years prior to the war in Ukraine, responses to situations ranging from Syria to Iraq and Myanmar have characterized new practices in mobilizing the United Nations human rights system and an array of accountability mechanisms as a direct response to deficits in the protection of populations.

This evolution has occurred alongside heightened geopolitical tensions within the UN Security Council (UNSC); the turn to accountability in response to real-time situations of mass atrocity is largely a direct response to shortcomings in international political will to mobilize more direct protection interventions. The increasing convergence of human rights inquiries and fact-finding missions with international criminal law (ICL) and the diversification of international criminal accountability processes beyond the state during the past decade¹ are referred to in this article as the ‘accountability turn’.² Responding to atrocity situations, not only has this turn witnessed a historic surge, but it is also distinguished by substantive and institutional changes in application³ that are generative of a new domain of global governance around human protection. Substantively, the mandates of these accountability mechanisms have increasingly merged human rights, international humanitarian law (IHL) and ICL within their scope of work, even where these overreach legal competencies of the commissions or investigative teams.⁴ Institutionally, mechanisms for accountability have proliferated across borders to encompass the national, regional and international levels within an ‘evolving international justice eco-system’.⁵ The decentred, networked and transnational character of this emergent legal order is developing through concerted efforts by diplomats, lawyers, civil society and experts to bridge, and even transcend, the ‘New York–Geneva’⁶ and ‘Geneva–Hague’⁷ divides in global politics and justice, efforts that are embedding accountability at the heart of the global politics of atrocity prevention and human protection.

These developments have been largely overlooked in international relations literature on human protection and the Responsibility to Protect (R2P). This literature views accountability mechanisms instrumentally—as another tool or alternative for advancing atrocity prevention and protection. In contrast, I argue that these changes represent a substantial transformation in the global governance of human protection. I introduce the framework of transnational legal orders (TLOs) developed in the field of international legal sociology⁸ to argue that the changes to the global governance of human protection through the accountability turn are not fully explained with reference to individual laws, norms or site-specific functions of institutions. I point instead to the wider transformation in the ordering of ‘humanity law’ (international human rights law, IHL and ICL)⁹ and the presumed function that it performs in global governance.

This article proceeds in three parts. First, it introduces the framework of transnational legal orders into International Relations (IR) debates to identify new modes of governance shaping issue-specific domains that transcend global, regional and domestic levels, and that extend to sites of agency beyond the state, including private lawyers, civil society and experts. Second, it traces the rise of the human protection TLO (HPTLO), including the diversification of the international justice ecosystem and its increasing attention to the specific problem of protecting populations from mass atrocities. Finally, it turns to the cases of Ukraine and Gaza, to illustrate the breadth and character of the HPTLO and to identify the effects of the HPTLO for the global governance of protection. The case of Gaza points to the limitations and internal tensions within the HPTLO that destabilize the accepted wisdom in IR that views international criminal accountability as a net-positive contribution to global politics.¹⁰ The conclusion cautions that future engagement with the HPTLO needs to be cognizant of both the persistent power inequalities inherent in the application of international accountability and the limitations of accountability for protection in real time.

Transnational legal ordering: diversifying and constituting the global governance of human protection

In this article I draw on TLO theory, a socio-legal approach elaborated in the field of international law and global governance that provides an integrated framework for studying the legal ordering of normative issue areas that occur across state boundaries. TLO theory includes formal law and non-formal norms within its parameters, and is concerned with the process and effects of legal ordering beyond the state. The defining feature of a TLO is its emphasis on legal ordering and institution-building that occurs beyond and across states where a transnational problem is identified.¹¹ States are part of this social landscape for legal order-building, but they are not necessarily at the centre, given the role of private actors, international organizations (IOs) and epistemic communities in creating legal and normative orders at the transnational level.

A TLO is defined as ‘a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions’.¹² A TLO offers three attributes: 1) It brings legal order to problems of international significance that require a transnational order to resolve; 2) It establishes legal doctrines and institutions that enable the institutionalization of transnational orders; and 3) It extends across national jurisdictions and involves transnational actors and processes.¹³ Finally, TLOs are geared towards problem-solving (once diagnostic struggles are settled) by creating the norms and institutions that seek to change behaviour to meet certain normative expectations established in international law. Therefore, the outcome of TLOs is not just the creation of new legal frameworks and institutions, but the ordering of complex social problems beyond the state.¹⁴

The TLO framing brings focus to the substantive and structural changes in international law discussed in the introduction to show how new ways of conceiving the problem of human protection informs developments in the international accountability landscape and has prompted new institutional configurations that are moving towards greater coherence and coordination at the transnational level. As discussed below, the HPTLO has integrated international political norms of R2P and protection of civilians, and the interaction of the legal and political rationales informing the accountability turn explains the substantive shift in the use of international accountability mechanisms as a real-time response to mass atrocity situations during early phases of violence escalation.

The next section turns to the formation of the HPTLO, briefly tracing the evolution of the international accountability norm and its convergence with the human protection agenda and showing both the expansion and substantive transformation of accountability efforts in the context of mass atrocity situations and escalating violence.

The human protection transnational legal order

The phrase ‘human protection’ was used in 2011 by then-UN Secretary-General Ban Ki-moon in his Cyril Foster lecture at the University of Oxford.¹⁵ Ban defined human protection as a subset of human security, comprising UN responses to ‘immediate threats to the survival of individuals and groups’. He identified three aspects of human protection, namely physical protection (such as through peacekeeping), prevention and accountability—situating the latter within the context of the R2P—and argued that ‘accountability is now an indispensable element of the framework of protection. It is a frontal challenge to impunity. And it also serves as a powerful deterrent against potential perpetrators.’¹⁶ The increasing association of accountability with protection in response to mass atrocities has been documented in the literature,¹⁷ and the assumption that accountability works to both prevent atrocities and protect informs transnational lawmaking projects described in the case-study section of this article.

The individual accountability norm

Individual criminal accountability at the international level was considered after the First World War, when the Allied Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties sought to prosecute some 900 war criminals, including Kaiser Wilhelm II. These efforts failed: Wilhelm II was given refuge in the Netherlands, and only a handful of domestic trials were undertaken by the German Supreme Court in Leipzig.¹⁸ However, the findings of the Commission and the outcomes of the Treaty of Versailles prompted novel thinking about the scope of international criminal justice, firstly during the interwar years and then resurfacing in the aftermath of the Second World War.¹⁹

By the end of the Second World War, the international community did not have institutional or legal precedent to prosecute war criminals. However, the ideas of the interwar years materialized in the creation of the first international tribunals, held by the Allied powers at Nuremberg and Tokyo to prosecute the highest-ranking Nazi and Japanese war criminals. Although a ‘victor's justice’ that did not reach to crimes committed by Allied powers, the Nuremberg Charter (1945)²⁰ and the Nuremberg principles (1950)²¹ formalized the principle of individual accountability in international law for crimes against the peace, war crimes and crimes against humanity, regardless of the official position of the perpetrator or the status of the criminal act within the domestic jurisdiction in which the crime was committed. The momentum to embed criminal accountability within international lawmaking in the postwar period extended to the inclusion of penal sanctions in the Fourth Geneva Convention in 1949,²² and created an obligation for contracting parties to the Genocide Convention to punish the crime of genocide through a domestic or international tribunal, or the granting of extradition.²³ After 1950, the ICL project was effectively suspended until the 1990s with the creation of international tribunals such as the international criminal tribunals on the former Yugoslavia and Rwanda. However, the influence of human rights in the context of IHL²⁴ as well as transitional justice strengthened the individual accountability regime and contributed to the ‘atrocitization’ of human rights in the context of the laws of war throughout the Cold War period.²⁵

This atrocity paradigm consolidated in the 1990s, culminating with the 1998 Rome Statute which created the International Criminal Court (ICC), turning the focus of both international lawmaking and political doctrine towards the protection of populations in situations of violent conflict and mass human rights violations.²⁶ It is in this context that we see the linking of the expanded ICL architecture and notions of individual criminal accountability with the human rights functions of the multilateral system, and the political and operational doctrines of R2P and protection of civilians.²⁷ It is the linking of these systems of justice and protection, I argue, that has prompted the creation of a HPTLO.

The idea that a TLO has been forming around the problem of individual accountability for atrocities has been argued in the international law literature.²⁸ A similar idea has circulated in IR, as Kathryn Sikkink and Hun Joon Kim argue, a ‘decentralized but interactive system of accountability’ is ‘emerging around the world for violations of core political rights, with fragmented enforcement that is primarily undertaken by domestic courts’.²⁹ These accounts, however, have yet to address the substantive changes that situate these practices within the landscape of international human protection. Increasingly, accountability processes are initiated where political decision-making to respond to real time protection crises has stalled. Next, I consider how recent events in global politics and changes across the international accountability landscape have transformed the contemporary nature of the HPTLO, before turning to a discussion to show how this HPTLO is materializing in the contexts of Ukraine and Gaza.

The decline of humanitarian intervention and international protection gaps

The disastrous effects of the 2011 NATO-led military operation over Libya marked a turning point in the global politics of R2P, diminishing international support for humanitarian interventions. The collective failure to protect populations in Syria, as well as the destabilizing withdrawal of the United States and its allies from Afghanistan in 2021, further delegitimized military intervention and exacerbated the UNSC deadlock on protection crises.³⁰ The situations in Ukraine and Gaza have deepened this inertia in the UNSC, as evidenced by the persistent use or threat of vetoes by Russia, China and the US. In this difficult geopolitical context, there has been greater attention to the potential of international criminal accountability as an alternative measure to counter atrocities. Advocates of R2P, such as the UN Special Adviser on R2P and the diplomatic Group of Friends of R2P at the UN in New York and Geneva, have promoted accountability to distance the principle from military intervention and advance protection through non-forceful avenues.³¹ In 2021 the then-ICC Prosecutor Fatou Bensouda went so far as to call the ICC the ‘legal arm of R2P’,³² evidencing the conceptual convergence between international accountability and R2P in international discourse.

An expanded and diversified international justice ecosystem

Amid the geopolitical stalemate and routine vetoing of UNSC resolutions,³³ the number and type of actors contributing to international accountability mechanisms has proliferated. Over the past decade, actors in the UN human rights system have associated their mandate and functions with the prevention of genocide and other atrocities.³⁴

Since 2016 ‘a new generation’ of investigative bodies has been created with ‘geographically limited mandates with quasi-prosecutorial powers’.³⁵ These mechanisms extend the traditional mandates of human rights fact-finding missions and commissions of inquiry to build evidence and criminal cases that could be used for prosecution. Within the UN system, these include the International, Impartial and Independent Mechanism for Syria, the United Nations Investigative Team to Promote Accountability for the crimes committed by Da'esh/Islamic State in Iraq and the Levant, and the Independent Investigative Mechanism for Myanmar. The expanding accountability landscape has prompted proposals from lawyers and academics for a standing mechanism to create a permanent architecture for these investigative functions.³⁶ This illustrates the transnational legal ordering that is emerging to coordinate the functions across these agencies and sites of implementation.

There has also been an increase in the number of UN Human Rights Council (UNHRC) created—or supported—fact-finding missions and commissions of inquiry with specific mandates to provide evidence of international crimes to support international prosecution. For example, several commissions of inquiry, including in Burundi and Myanmar, have used the UN Framework of Analysis for Atrocity Crimes to detect potential atrocities.³⁷ In atrocity situations not on the UNSC's agenda, such as in Tigray in Ethiopia³⁸ or the Xinjiang Uyghur Autonomous Region (XUAR) in China,³⁹ human rights investigations have been used to determine the extent of the atrocities committed and to keep the situations in view.⁴⁰ Both examples have employed the atrocity crimes framework for their investigations and their findings: for example, the International Commission of Human Rights Experts on Ethiopia ‘concluded with reasonable grounds to believe that all parties to the conflict committed serious violations and abuses, including war crimes and crimes against humanity’.⁴¹ The Office of the UN High Commissioner for Human Rights (OHCHR) report on the situation in the XUAR concluded that the ‘extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups … may constitute international crimes, in particular crimes against humanity’.⁴²

Civil society organizations such as the Commission for International Justice and Accountability also represent a new generation of actors which undertake the role of case-building and which work in tandem with UN investigative bodies and domestic courts to promote prosecution. Not only do these civil society actors feed evidence into the UN investigative mechanisms, but they have built cases that have been provided to local courts where indicted individuals have entered their jurisdiction.⁴³ Related, there has been a rise in the number of universal jurisdiction cases being investigated and prosecuted in Europe relating to war crimes and crimes against humanity committed in Syria,⁴⁴ Ukraine, Rwanda, the Democratic Republic of the Congo, Afghanistan, Iraq, Liberia and The Gambia.⁴⁵ In such cases, private or ‘de facto’ prosecutors⁴⁶ are playing a prominent role in building and prosecuting universal jurisdiction cases to supplement international criminal justice efforts through domestic courts. Finally, the ICC and ICJ have also taken on a more visible role in addressing cases of mass atrocity.⁴⁷

The developments point to the transnational legal ordering that is underway, with a variety of actors initiating accountability processes where responses are lagging and creating new legal mechanisms to bring these transnational processes into an increasingly coherent and coordinated TLO. Many of these actors have used creative agency in interpreting and applying the law by engaging existing legal mechanisms in new ways and formulating linkages between institutions with a legal mandate to fill gaps in international protection. The next section provides a brief mapping of the accountability efforts in Ukraine and illustrates how this TLO has materialized through an elaborate international accountability enterprise.

Accountability efforts in Ukraine

The Russian invasion of Ukraine was an act of aggression unparalleled on European territory since the Second World War. After the invasion, many states acted swiftly on several fronts, including to evict of Russia from the Council of Europe and the UNHRC. On 2 March 2022, 141 member states in the General Assembly voted in favour of Resolution A/RES/ES-11/1 condemning the actions of Russia in Ukraine.⁴⁸ Two months later, the General Assembly activated the Veto Initiative to convene a formal meeting of the General Assembly following the veto and to debate the situation.⁴⁹ This mechanism is the closest that the General Assembly has arrived at in its efforts to increase accountability of the UNSC on its use of the veto in situations of mass atrocities. These efforts include proposals for a code of conduct—which has been termed a ‘responsibility not to veto’—that would commit the five permanent members of the UNSC ‘to not vot[ing] against a credible draft resolution before the Security Council on timely and decisive action to end the commission of genocide, crimes against humanity or war crimes, or to prevent such crimes’.⁵⁰ The US ambassador to the UN also voiced her government's self-commitment not to veto along the lines of the code of conduct, marking a turning point in the US government's position on veto restraint.⁵¹

With the prospect of military escalation high, and fears that nuclear options might be considered, states—particularly in the European Union and the United Kingdom—pursued non-forceful options to protect civilians. This included the opening of EU borders to Ukrainian nationals, creating emergency laws to bypass asylum restrictions and creating protection hubs in Poland, Romania and Slovakia, as millions of refugees fled aerial bombardment in Kyiv and beyond. The EU Civil Protection Mechanism organized its largest humanitarian operation to date. European states and their allies have imposed steep sanctions on Russia, including travel bans and asset freezes, and have continued to provide Ukraine with funding, military hardware, intelligence and training.

In addition to these political and humanitarian efforts, the sustained growth of the accountability landscape has been central to the international response to the war, and it can be argued that the strengthening of various accountability mechanisms, the introduction of new processes and more expansive mandates in the years preceding the full-scale invasion have contributed to this surge in accountability for Russian aggression, and for the crimes committed as part of the war. Furthermore, the institutional architecture in Europe has the capacity for, and has been permissive of, a robust and concerted response. Where the UNSC is constrained given Russia's holding of a permanent seat and veto, the EU, NATO and the Organization for Security and Co-operation in Europe (OSCE) mobilized swiftly in response to the invasion.

The scale and breadth of the international accountability initiatives in support of Ukraine are historically unprecedented. The UNHRC created a commission of inquiry within just nine days of the invasion, with a sweeping mandate ‘to investigate all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of the aggression against Ukraine by the Russian Federation’.⁵² The Independent International Commission of Inquiry on Ukraine began work immediately on building cases that could be used for prosecution in future proceedings. Within a year, it reported that its evidence pointed to a wide range of violations of international human rights law and IHL, committed by Russian authorities in many regions of Ukraine and in the Russian Federation, that amount to war crimes and may amount to crimes against humanity.⁵³

Several fact-finding missions have also been created to monitor and report on the human rights situation throughout Ukraine, including the UN Human Rights Monitoring Mission in Ukraine. In March and June 2022, March 2023 and again in February 2024, 45 participating states (including the US) invoked the OSCE Moscow Mechanism, which has a mandate to:

establish the facts and circumstances surrounding possible contraventions of … OSCE commitments [and] violations of international law; identifying possible war crimes and crimes against humanity; and collecting, consolidating, and analysing this information with a view to presenting it to relevant accountability fora.⁵⁴

The reports issued by the Moscow Mechanism at the time of writing identified

clear patterns of serious violations of international humanitarian law attributable mostly to Russia's armed forces … in the territories under the effective control of the Russian Federation' as well as evidence of direct targeting of civilians, attacks on medical facilities, rape, torture, executions, looting, and forced deportation of civilians to Russia.⁵⁵

Just six days after the start of the war, the EU's Agency for Criminal Justice Cooperation, Eurojust, created its own Joint Investigative Team (JIT) to be deployed in Ukraine. The JIT includes Ukraine, six EU member states and the ICC, and is in the process of creating the Core International Crimes Evidence Database to document and preserve criminal evidence for future analysis and case-building.⁵⁶

Eurojust also created the https://www.eurojust.europa.eu/international-centre-for-the-prosecution-of-the-crime-of-aggression-against-ukraine. Located in the Hague, this is the first centre of its kind; according to Eurojust, ‘the ICPA is a unique judicial hub … independent prosecutors from different countries are able to work together in the same location on a daily basis, exchange evidence in a fast and efficient manner, and agree on a common investigative and prosecution strategy.’⁵⁷ Finally, Eurojust also hosts the Genocide Network ‘to enable close cooperation between the national authorities when investigating and prosecuting the crime of genocide, crimes against humanity and war crimes, known collectively as core international crimes’.⁵⁸ These mechanisms are aimed at building both networks and capacity of domestic prosecutors, and allowing European states to initiate universal jurisdiction should suspects enter their jurisdiction. The centralized repository further systematizes the collection and preservation of evidence and case-building to provide future prosecutors with developed case files.

To date, four EU member states—Germany, Lithuania, Sweden and Spain—have initiated universal jurisdiction investigations into war crimes and crimes against humanity committed by Russians in Ukraine, and several states have started collecting evidence for future prosecutions. Beyond the EU, the United States has been proactive in pushing for Russian accountability. In December 2022, the US Congress amended its War Crimes Act to make it easier for the US government to exercise universal jurisdiction.⁵⁹ The US has supported a wide range of international accountability initiatives, including capacity-building for Ukrainian authorities to prosecute individuals for international crimes, supporting universal jurisdiction efforts globally, and supporting international accountability mechanisms and courts, including the ICC Office of the Prosecutor—despite its own troubled relationship with the court—and supporting civil society documentation to document and preserve evidence for prosecution.⁶⁰

Further to these efforts, the ICC has exercised its mandate through an unprecedented 43 state referrals to investigate international crimes committed by the Russian government. The current ICC Prosecutor Karim Khan has been a prominent global voice in countering Russian aggression. The determination of Khan for the ICC to play a constructive role in this situation is evidenced by the opening of an ICC office in Ukraine, and the issuing of two arrest warrants on 17 March 2023 for Russian President Vladimir Putin and Russia's presidential commissioner for children's rights, Maria Lvova-Belova, for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation. These crimes ‘were allegedly committed in Ukrainian occupied territory at least from 24 February 2022’.⁶¹ Additional ICC arrest warrants were issued in 2024 for former Russian Minster of Defence Sergei Kuzhugetovich and senior Russian military figures for alleged war crimes and crimes against humanity, including civilian targeting and targeting of civilian infrastructure, since the onset of the war.⁶² Arguably, the decisive nature of ICC action has reinvigorated its reputation and relevance to situations beyond Africa and positions it as central to matters of international peace and security.

The most publicly debated theme around Russian accountability has been the question of how to address the international crime of aggression.⁶³ If successfully prosecuted, this would be the first time since the Nuremberg Tribunal that aggression would be tried in an international court. However, the ICC has no scope to try aggression, given the narrow window negotiated in the Rome Statute to give ICC jurisdiction. This would require a revision to the Rome Statute that would allow perpetrators of the crime of aggression to be prosecuted as long as the state where the crime has been committed has accepted the Court's jurisdiction, in the same way that they can for the other three crimes under the Courts' jurisdiction (war crimes, crimes against humanity and genocide). Currently, both invader and invaded country would need to be party to the Rome Statute, or a UNSC referral would be required. Neither Russia nor Ukraine is party to the Rome Statute and there is no question of a referral or revision to the Rome Statute in the current environment.

To overcome this impasse, several proposals have been forwarded to create a tribunal for the crime of aggression. The first, and least likely option, would be a Nuremberg-styled international military tribunal convened by a group of member states.⁶⁴ The second would be an international court created through either a UN General Assembly or EU treaty, or third, an internationalized or hybrid Ukraine court—possibly operating out of another country.⁶⁵ While an agreement has yet to be reached as to what form the final model should take, a turning point in international law and the willingness to pursue aggression has expanded further the remit of international accountability.

The combined efforts referenced in this section are transnational in character, linking individual, state, non-state and IO actors across jurisdictions. They respond to the real-time challenge of mass atrocities as the crimes are being committed, and link to wider international doctrines of protection where political and operational solutions are lagging. The cooperation between accountability actors and the creation of new mechanisms or processes to accommodate the changing accountability landscape speak not only to developments in the law itself, but to the wider process of legal ordering—in most cases a continuation of legal ordering processes that were already underway in situations such as Syria and Myanmar in the years leading up to the invasion of Ukraine.

Where the internal cohesion of the accountability efforts in response to Ukraine speak to the culmination of a legalized logic and set of practices in mobilizing alternative, non-military, approaches to the war, several critical issues emerge from this experience. First is the deep bias evidenced by western states towards Ukraine—a geopolitically significant state for NATO members and the site of contested Russian power. Accountability efforts in support of Ukraine illuminate the extent to which certain members of the international community are willing to engage to press for international justice and protection. Given the unique set of circumstances and regional architecture in place among European states and their allies, it presents an ideal case-study to prove what can be achieved by mobilizing extensive investigation and process for violations of IHL and international human rights law. However, it also draws attention to the lack of protection outcomes achieved for populations in Ukraine, selectivity of the choice to champion accountability in Ukraine, the exclusion of non-Ukrainian citizens at the outset of the war, and deficit of will by the same states to prioritize parallel cases of mass atrocity in other parts of the world such as Myanmar, Sudan or Ethiopia. Therefore, the most extensive case-study of the HPTLO to date simultaneously exposes the limits of the international criminal justice project and the fragility of the accountability–protection nexus that has been emerging over the past decade. The next section turns to the case of the war in Gaza, in which these key deficits have persisted—and point to the inherent fragility of the HPTLO.

Accountability in the Israel–Gaza war

Israel's sustained military campaign in Gaza, following the brutal attacks of 7 October 2023 by Hamas militants on Israeli civilians, has been marked by widespread violations of IHL and human rights. These include a siege on Gaza, the killing of over 33,000 civilians in less than six months and the forcible displacement of 80 per cent of the population.⁶⁶ The international response to the war in Gaza confirms the dual thesis in this article; namely that in the wake of gridlock in the UNSC,⁶⁷ international accountability pathways have been activated since the onset of the war in an attempt to fill the protection gaps in real time. However, it also confirms that power hierarchies persist in global lawmaking efforts, and that protection through international accountability as currently practised is no less selective or depoliticized than its political counterpart of the R2P doctrine.

A first pathway for international justice in this case came through the ICC, which allows for the individual criminal prosecution of serious crimes that extends to all parties to the hostilities. On 5 February 2021 the ICC Pre-Trial Chamber I decided that the territorial jurisdiction of the Court with respect to the situation in the State of Palestine extended to the territories occupied by Israel since 1967, including Gaza, the West Bank and East Jerusalem.⁶⁸ As Khan made clear in his 30 October 2023 speech in Cairo, following his visit to the Rafah Crossing, international crimes committed by all parties fall within the scope of the ICC investigation into the situation of the State of Palestine opened in 2021;⁶⁹ on 20 May 2024, he announced his intention to issue arrest warrants for Israel's Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant, in addition to the Hamas leader in Gaza, Yahya Sinwar, and the heads of Hamas's military and political wings.⁷⁰ Although Israel is not a member of the Rome Statute, Palestine acceded to the Rome Statute and accepted the jurisdiction of the ICC in 2015. In 2018 Palestine referred its situation to the ICC, allowing it to investigate serious crimes dating back to 2014. The ICC therefore has jurisdiction to prosecute individuals—including members of Hamas—for serious crimes committed in or from Palestinian territory.

The ICC investigation has received backing from a diverse group of states since the escalation of hostilities in October 2023, demonstrating further the transnational coalitions of prosecutors from varied states—many in the global South using international courts to intervene during international conflict. On 17 November 2023, Bangladesh, Bolivia, the Comoros, Djibouti and South Africa submitted a referral of the situation in Palestine to the ICC, followed by a second referral submitted by Chile and Mexico on 18 January 2024.⁷¹ Prior to Khan's announcement of his intention to issue arrest warrants for Israeli and Hamas leaders, the ICC faced criticism for its delayed and lacklustre investigation into the situation in Palestine prior to the 7 October 2023 attacks.⁷² Since the start of the war, the silence on the parts of many ICC states has led to accusations of double standards of international justice,⁷³ particularly by those states that enthusiastically engaged the ICC in the case of Ukraine.

An alternative pathway for international accountability came through the avenue of state responsibility, initiated by a referral by South Africa to the ICJ. The referral, submitted on 29 December 2023, just over two months after the outbreak of the current round of war, alleged that Israel is violating the Genocide Convention. Unlike the ICC investigation that has scope to prosecute individuals on both sides of the hostilities—including Hamas militants—the ICJ is limited to cases between states, and therefore its rulings are aimed solely at Israel as a state party to the Genocide Convention. As with the case brought by The Gambia against Myanmar for the violation of the Genocide Convention in 2019, the referral by South Africa came from a global South state, emphasizing the absence of a western-led initiative comparable to Ukraine. But this case also points to the globalizing effect in the HPTLO, whereby prosecutors in global South states are empowered to lead on responses to international crises where traditional avenues of political power are gridlocked. Although the case will take many years to prosecute, the ICJ swiftly pronounced provisional measures on 26 January 2024 requiring Israel to prevent a genocide against Palestinians in Gaza, to enable the provision of basic services and humanitarian assistance and prevent and punish incitement to commit genocide.⁷⁴ Additional provisional measures issued by the ICJ on 24 May 2024 ordered Israel to ‘halt its military offensive and any other action in the Rafah Governorate which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part’.⁷⁵ Beyond Rafah, the ICJ did not, however, require Israel to call a ceasefire or end the conflict in Gaza, as requested by South Africa. Therefore, while the ruling holds symbolic value and increased scrutiny on Israel to act with restraint, the willingness of the Court to rule on the legality of the war itself has been ambivalent, given its jurisdictional limit to the crime of genocide.⁷⁶

As with the ICC and ICJ, the UNHRC was swift to respond to the situation in Gaza. Just three days after the Hamas attack on 7 October, the UN Independent International Commission of Inquiry cited evidence of war crimes, and clarified its intent to support legal accountability, ‘including individual criminal responsibility’, and its commitment to ‘collecting and preserving evidence of war crimes committed by all sides since 7 October 2023’.⁷⁷ On 24 March 2024, the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967 submitted her draft report titled Anatomy of a genocide, claiming that there are ‘reasonable grounds to believe that the threshold indicating the commission of … acts of genocide against Palestinians [by Israel] in Gaza has been met’.⁷⁸ As with the ICJ case, all findings were directed at Israel given the scope of the mandate, with the question of criminal accountability of Hamas militants for the 7 October attack unaddressed through UNHRC recommendations.

While these measures were activated on multiple fronts early in the conflict, consistent with trends in major atrocity situations in recent years, the commitment to international justice in Gaza among the main actors pressing the Ukraine accountability agenda has been muted. This inconsistency has created new divisions between states; for example, on 8 April 2024, Germany defended itself before the ICJ against accusations by Nicaragua that it facilitated Israel's military campaign and has therefore failed to prevent genocide,⁷⁹ despite being a lead player in the accountability efforts in Syria and Ukraine. Although the US did block arms sales to Israel in the wake of Israel's incursion on Rafah, and despite calling on the Israeli government to show restraint and leading on international negotiations, the US has substantially increased the flow of weapons to Israel throughout the military campaign.⁸⁰ On 4 April 2024, the Washington Post reported that US President Joe Biden had approved the delivery of a thousand bombs to Israel, the same day that the World Central Kitchen's humanitarian convoy was destroyed.⁸¹ It took the UNSC six months of negotiations to allow a US-sponsored resolution calling for a ceasefire to be passed, with the abstention of Russia. In contrast to the extensive efforts by the US State Department's War Crimes Office in Ukraine,⁸² it has remained silent on the situation in Gaza.⁸³

The fragility of the HPTLO

In the wake of the case of Ukraine, where the HPTLO was energized and expanded, the ambivalence of many western states to back international accountability efforts in Gaza suggests that the former may point to the outer limits of international justice, rather than confirming its arrival—as had been optimistically predicted in recent years.⁸⁴ The real effects of accountability through international justice mechanisms on the prevention or reduction of violence may be impossible to measure in precise terms,⁸⁵ as we are referring to the longer-term process of legitimating the rule of law through compliance in complex social and political contexts, for which direct causation is difficult to prove. Current discourse among criminal law practitioners suggests that the consolidation and expansion of a comprehensive global accountability regime serves to advance global justice and deter would-be perpetrators from committing acts of genocide and mass atrocity.⁸⁶ However, more critical legal perspectives suggest that this association warrants deeper consideration. For example, Philip Alston argues that the growing tendency of investigative mechanisms to urgently make findings of genocide and to document evidence of atrocities with a view to future prosecution of individuals within a rapid time-frame is leading to the ‘criminalization’ or ‘atrocitization’ of human rights.⁸⁷ From this perspective, the accountability turn is stove-piping international justice towards a narrow conception of individual criminal accountability for the most severe instances of atrocity. Not only does this pressure actors to prove that international criminal violations have occurred to gain international attention, but it skews resources and attention away from structural sources of injustice and human rights protection more broadly understood into the narrow remit of individual criminal prosecution.⁸⁸

A second sign of the fragility of the HPTLO is the evident bias and selectivity that persists in the pursuit of justice for victims of flagrant violations of international law, mirroring the critiques levelled at the R2P doctrine.⁸⁹ Power hierarchies present in global lawmaking efforts since the inception of IHL and international human rights law⁹⁰ manifest in the transnational legal ordering processes that have emerged as key sites for governing human protection. For example, an innovative independent human rights mechanism and ICJ special provisions calling on the Myanmar government to protect Rohingya minorities from genocide have not produced any meaningful international protection outcome for this population—a situation that has further deteriorated since the 2021 military coup.⁹¹ The same can be said of cases such as Sudan, Yemen, Ethiopia and Syria, where findings of serious and persistent violations of international law—including blockades, starvation as a weapon of war and systematic targeting of civilians—failed to generate actions to uphold the prohibition of these acts.⁹² Although these critical perspectives do not warrant a turning away from the pursuit of international accountability in the face of genocide and atrocity situations, they do highlight the wider challenges for international justice when responsibility for responding to mass atrocity situations is effectively outsourced from the UNSC and feeds into a growing international accountability enterprise.

Conclusion

The above brief mapping of the accountability landscape in the context of the wars in Ukraine and Gaza provides evidence that the expansion of accountability actors, mechanisms and initiatives does not only have implications for the reach and practices of the international justice system; it is also indicative of an emergent HPTLO in global politics, whereby accountability is deployed to provide an alternative pathway to compensate for deficits in other parts of the international protection order. The logic operating in the HPTLO is that increased accountability for perpetrators strengthens compliance and the consistent application of international humanitarian, criminal and human rights law.

Given the deeper integration of the legal and political operations of protection, the rise of accountability is already creating new cleavages and dilemmas when aimed at ending wars and protecting civilians. The polarization between judicial efforts pursued by western states supporting Ukraine, and global South states supporting Gaza, further entrenches these opposing political configurations. This polarization also indicates that international justice bodies have moved from the periphery to become front and centre in global contests of normative claims to justice, and access to high-level leadership in warring constituencies. The ICC prosecutor's pursuit of arrest warrants for Israeli and Hamas leadership is novel, in that it creates new areas of intersection across the work of the ICC, ICJ and UNHRC, which will be increasingly cross-referencing their findings and decisions.⁹³ However, these developments have already proved jarring for many states; the US, who had found the ICC a useful ally in Ukraine, opposed the ICC arrest warrants for Netanyahu and Gallant, and on 4 June 2024 the US House of Representatives passed a bill to sanction the ICC.⁹⁴ The ICJ provisional measures on genocide further trouble its relationship with western states which have supported Israel in its military campaign, and for which the findings of genocide would have wider ramifications.

Although international criminal law has been marred by politicization since its inception, it is possible to imagine that the activism around the ‘accountability turn’ may eventually suffer the same fate as R2P, should it be overtly politicized and instrumentalized during geostrategic contests. In pointing to the limits of the HPTLO for advancing protection in real time, this article cautions against an excessive reliance on judicial processes as a stopgap for the deficits in multilateral cooperation or the absence of political solutions to major crises. Not only does the heightened reliance on accountability as an alternative response to real-time commission of atrocities risk undermining the legitimacy of the international criminal justice project—one that was hard fought and at a high price—but it expands global political contests further into the multilateral system at a time where the latter is already starting to fray.

Footnotes

Author notes