Going Local? Regionalising universal criminal justice

Regional legal frameworks are increasingly asserting themselves. Rather than signaling a collapse of global norms, this shift may reflect a return to the regional roots from which much of international law emerged. International criminal law with its institutions is no exception: while the International Criminal Court (ICC) has long stood as the symbol of universal accountability, it now faces mounting legitimacy challenges. At the same time, regional institutions like the African Union and the Council of Europe are advancing their own legal models for prosecuting international crimes. This growing divergence reveals tensions between universalist aspirations and regional sovereignty in global justice. As universal criminal justice becomes increasingly institutionalised at the regional level, we should question whether criminal justice should indeed become local and, if so, what patterns emerge.

Falling out of grace: the crisis of the International Criminal Court

Established by the Rome Statute in 1998, the ICC was tasked with prosecuting the gravest international crimes that affect the international community: genocide, crimes against humanity, war crimes, and the crime of aggression. While initially celebrated as a step toward global accountability, the ICC has faced sustained legitimacy challenges — most notably, accusations of regional bias. The ICC’s early focus on prosecuting African leaders led to claims of selective justice and prompted several African states to withdraw or reconsider their membership.

Recent investigations into possible war crimes in Ukraine and Palestine have reignited criticism of the ICC. Russia and Israel, both non-signatories, reject the ICC’s jurisdiction, framing its actions as politically motivated. The United States has imposed sanctions on Court officials in response to investigations involving American personnel and allies, and some state parties, like Hungary, have gone as far as declining to cooperate with ICC warrants, a clear challenge to the Court’s authority.

Internal issues compound these pressures. Allegations of misconduct within the Office of the Prosecutor and inconsistent enforcement of arrest warrants further weaken the Court’s credibility. In this context, the universal model of criminal justice that the ICC represents appears increasingly contested. Against this backdrop, it is not difficult to see why universal criminal justice is going local.

Unpacking the regionalisation of universal criminal justice

Understanding the regionalisation of universal criminal justice is essential to unpacking current global trends. When regionalism is understood as the formation of groupings based on shared cultural, linguistic, or political ties, the development of regional approaches to universal criminal justice entails integrating common values, ideals, and legal practices into judicial mechanisms. Alternatively, if regions are viewed as social constructs and regionalism as the cognitive or normative affirmation of these constructs, this allows for references to concepts such as ‘African values’ or ‘European values,’ which shape how regionalisation is enacted.

Through this lens, regionalisation can be understood as a process whereby states first develop domestic preferences aligned with regional legal objectives, and second, implement strategies to achieve those objectives through regional institutions. Since the fight against impunity has often developed through regional initiatives, such as the exercise of universal criminal jurisdiction by national courts or the establishment of ad-hoc tribunals, the institutionalisation of criminal justice at the regional level is a logical extension of shared legal and normative frameworks. Within this conceptual framework, the following sections explore distinct models of regionalisation: the African initiative to establish a regional criminal court and the European special tribunal mechanism.

Africa’s counter-model

The African Union (AU)’s adoption of the Malabo Protocol in 2014 marked a significant step toward the regionalisation of universal criminal justice in Africa. By proposing the establishment of an African Criminal Court as part of the African Court of Justice and Human Rights, the Protocol extends jurisdiction beyond core international crimes, such as genocide, war crimes, and crimes against humanity, to include transnational offences like corruption, illicit exploitation of natural resources, and unconstitutional changes of government. These additions reflect region-specific concerns and signal a departure from the ICC’s more limited mandate.

Notably, Article 46A bis grants absolute immunity before the Court to serving high-level officials, directly addressing one of the most contentious issues in international criminal law. The AU has, on several occasions, cast doubt on how the ICC handles immunity issues and the court’s effects on peace processes: for instance, Sudanese President Omar al-Bashir’s indictment by the ICC was met with widespread resistance from African states citing sovereign immunity. In this respect, the African model not only asserts regional judicial autonomy but also attempts to resolve key legal ambiguities that have plagued the global justice system.

However, despite its ambitious scope, the Malabo Protocol remains unratified by the minimum number of states required for it to enter into force. Unsurprisingly, the main concerns regarding the establishment of such a criminal court are about state sovereignty, political bias, and the potential for judicial overreach. Yet, the African solution to African problems approach, used to emphasise the importance of African agency, self-determination, and ownership in addressing the continent’s various issues, including in the field of criminal justice, has since been successfully applied through an AU-established hybrid court in Senegal to prosecute Chad’s former president.

Europe’s complementary model

Europe’s approach to universal criminal justice, meanwhile, involves reinforcing global norms through targeted complementarity. A notable development in this regard is the establishment through an agreement concluded on 25 June 2025 between Ukraine and the Council of Europe, independent from the UN and the ICC, of a special tribunal focused on prosecuting the crime of aggression against Ukraine.

The tribunal adopts a hybrid model that blends international judicial expertise with domestic procedural norms (Articles 3, 8, 10 of the Statute), aiming to address the accountability gap left by the ICC, particularly regarding the crime of aggression. This is because the ICC can only exercise jurisdiction over the crime of aggression if the aggressor state is a member, which Russia is not, preventing the Court from prosecuting its actions.

A notable feature of this special tribunal is its ability to judge in absentia (Article 28 of the Statute), meaning without the presence of the person involved, which is controversial under international law due to concerns about due process and human rights.

The tribunal will investigate, prosecute, and try persons who bear the greatest responsibility for the crime of aggression against Ukraine, its jurisdiction being based on the territorial jurisdiction of Ukraine (Article 1). This means that the special tribunal will prosecute mainly senior Russian officials involved in the crime of aggression against Ukraine.

However, there are legal, political, and practical challenges that the tribunal may face. A key challenge arises regarding the tribunal’s ability to override the immunities of high-ranking officials while in power. The International Court of Justice, in the Arrest Warrant case, affirmed that high-ranking state officials, such as the Head of State, Head of Government, and Minister for Foreign Affairs (Troika), enjoy immunity from prosecution in foreign jurisdictions. Therefore, for example, President Putin of Russia could only be tried if he renounces his immunity, if Russia lifts his immunity, or if he leaves the office. Mindful of this obstacle, but with the view that personal immunity is not a carte blanche for immunity, Article 4 (2) of the Statute provides that the official position shall not relieve a person of criminal responsibility. Additionally, it remains uncertain whether states will be willing to cooperate with the tribunal and arrest those indicted.

Despite the challenges it may face, from a regionalisation perspective, the tribunal is designed to complement rather than compete with the ICC, aiming to fill the accountability gap in cases of aggression.

Patterns in the regionalisation of criminal justice

The regionalisation of criminal justice reveals several recurring patterns that highlight both tensions and opportunities within the universal criminal accountability framework. First, different regions espouse divergent normative priorities in their efforts to regionalise criminal justice. African institutions tend to emphasise historical and structural injustices, including colonial-era crimes and economic exploitation, opting for an ‘African solution to African problems.’ In contrast, European initiatives focus on contemporary conflicts, such as the crime of aggression in Ukraine, and the enhancement of the international rule of law. These regional particularities reflect different regional value systems, with African regionalism often driven by collective sovereignty, post-colonial self-determination, and restorative justice and the European model grounded in liberal democracy, the rule of law, and individual responsibility.

Another key tension concerns sovereignty and immunities. African states have pushed back against the ICC’s Article 27, which denies immunity to sitting officials, viewing it as a threat to sovereignty. Conversely, European actors have largely upheld the principle of non-immunity, as illustrated by their support for the ICC’s arrest warrant against President Putin as well as the inclusion of Article 4 in the Statute of the special tribunal, which provides that the official position shall not relieve a person of criminal responsibility. These differences are further reflected in institutional strategies: Africa has proposed innovative, stand-alone regional mechanisms like the African Criminal Court, whereas Europe has opted for a complementary special tribunal to prosecute the specific crime of aggression against Ukraine.

Despite this fragmentation, there is growing potential for complementarity. Mechanisms such as cross-regional referrals and harmonised legal standards could bridge normative divergences and foster a more coherent and inclusive system of universal criminal accountability. However, political will to do so remains uneven. While European structures have demonstrated strong institutional will to develop complementary regionalised judicial mechanisms, the stalled ratification of the Malabo Protocol reflects persistent concerns in Africa over sovereignty and judicial independence. The evolution and interaction between these normative patterns will determine whether regionalisation will deepen interregional fragmentation or produce a more inclusive system.

As we move forward

The trend toward regionalisation in universal criminal justice reflects not just political pragmatism, but also deeper normative and institutional realignments. African and European initiatives offer contrasting models, with one asserting regional autonomy through institutional innovation and the other reinforcing global norms through targeted complementarity. While these developments could deepen the current fragmentation of the universal justice system, they also open up opportunities for greater inclusivity, legitimacy, and responsiveness to local contexts. The challenge lies in balancing the benefits of regional specificity with the need for coherence and universality.

Tags: International Criminal Law, criminal justice