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Following the arrest warrants issued by the International Criminal Court (ICC) for Israeli officials in November 2024, the United States has issued individual sanctions against many ICC officials and has also threatened to sanction the institution as such. When the same court had issued a warrant for Vladimir Putin nineteen months earlier, Washington praised it as a victory for international justice. The double standards, albeit predictable, are now unabashed. While the double standards of the Global North/Western states have been in the spotlight, and rightly so given the consequences that follow their decisions, due attention must also be paid to responses from the Global South states. It is not only about their inconsistent stances towards international (criminal/human rights) law, but also how they instrumentalise the critique of selectivity and bias to evade accountability, among other reasons. For instance, India has consistently pointed to the ICC as a “Western tool” and cited excessive Western influence as one of the reasons for not becoming a signatory to the court. While the concerns may not be unsubstantiated with respect to the Court as such, the rhetoric of a “colonial mindset”  is also used by the current Indian government to deflect any challenges to its treatment of minorities within the country.

This uncomfortable convergence reveals something: the critique of international criminal law as “Eurocentric” or “Western-dominated,” however historically, politically, and analytically valid and necessary, may have reached the limits of its explanatory power. Worse, contrary to its original intention and potential, it has become a rhetorical resource for the very states and actors it sought to challenge. The following passages reflect on the question of whether continuing to frame the problems of international criminal law (ICL) primarily through a Eurocentrism/West-dominated lens obscures more than it reveals, and whether we should move towards extending our critical analytical frameworks in the interests of the global majority.

The Exhaustion of the Eurocentric Critique

The critique of ICL as a Western project rests on historically and empirically solid ground. International criminal justice was born from victor’s justice at Nuremberg and Tokyo, scarred by an exclusive focus on atrocities by one side. Many scholars (here, here, here, and here) have documented how this asymmetry has persisted. Needless to mention that this critique has been intellectually and politically essential. It named what mainstream international lawyers ignored: that ICL’s universalist aspirations masked particular genealogies, that its language of rights and accountability carried colonial histories, that its practice reproduced North-South hierarchies. Without this work, we would lack the vocabulary to challenge ICL’s limitations and legitimacy, or imagine alternatives.

Yet something has shifted.

On the one hand, the critique has become so established, so predictable, that it no longer generates new insight or political transformation. We know the practice and institutions of ICL are dominated by the West. We have known this for decades. The question is: what does repeating this observation actually accomplish now?

On the other hand, former defenders of the court (including many EU countries, Canada, etc.) have now become critical or at least take an unsupportive stance in response to the decision regarding the arrest warrants in the Palestine situation. Given the lack of support by such states and other active threats against the ICC, some of the former critics have lobbied in its defence, despite the many structural limitations that have been pointed out in recent decades. Yet we risk entrenching these limitations if we simply retreat to the position that “perfect cannot be the enemy of good”.

This dynamic (critique that has become predictable, defense that risks entrenchment, and both being weaponized by cynical actors) suggests we are analytically stuck. The problem is not simply that we need better critique or more vigorous defense. It is that the “Eurocentric ICL” frame itself, albeit still valid and crucial, may no longer be sufficient for understanding how power operates through international criminal justice today.

The critique’s exhaustion manifests in what it can no longer explain. Why do some Western states support certain ICC actions while undermining others? Why do Global South states selectively embrace ICL when it targets their adversaries while invoking anti-colonialism when scrutiny turns inward? Why do elites across vastly different political systems seem to share interests in keeping corporate crimes, economic violence, environmental destruction, colonial violence, and other forms of state repression outside its scope?

When Exhaustion Becomes Obfuscation

An extension of the Eurocentric frame is not about denying colonial legacies or pretending that power operates equally across geography. Rather, it asks what becomes visible when we refuse to let geographic binaries serve as our primary analytical lens. The problem, then, is not geography as such, but how geographic and civilizational language continues to structure international legal critique in ways that obscure shared forms of state and capitalist power across contexts.

First, this framework obscures cross-cutting class interests. Elites everywhere (whether in Beijing, Berlin, Bamako, or Buenos Aires) share investments in certain forms of impunity. The violence that ICL systematically excludes is not coincidentally the violence that protects ruling class power: corporate crimes, economic dispossession, structural adjustment policies, militarized borders, carceral systems. Indian elites have more in common with American or Chinese elites (in their material interests, their mobility, their immunity from accountability) than any of them have with marginalized communities experiencing violence in their own states.

Second, the geographic frame misidentifies selectivity. ICL does not simply target the Global South while exempting the West. It targets weak states while powerful states evade scrutiny, whether in the West, where they are concentrated, or elsewhere. It prosecutes spectacular violence while rendering structural violence invisible. The framework struggles to name non-Western imperialisms. Imperialism and mass violence are not Western monopolies and selectivity as such is not “Western” in origin, it is power protecting itself.

 Finally, and most fundamentally, it treats the state form itself as neutral. The Eurocentric critique, or at least the most popular version of it, assumes that if different states controlled ICL (if it were less dominated by the West), it would function differently. But all states, regardless of their colonial history or geographic location, engage international law through logics of sovereignty, national interest, and the protection of elite power. This is not about cultural origin but about structural position. What if the problem is not which states dominate ICL but state-centric accountability itself and its incapacity to address the systemic, economic, and structural violence that states (all states) rely on?

Towards Post-Geographic Analysis

If the West/Eurocentric frame is insufficient, what analytics might be more productive?

Material structures over geographic binaries. Following scholars like Susan Marks, B.S. Chimni, Carmen Gonzales and Athena Mutua we might analyse how global (racial) capitalism shapes ICL’s possibilities and limits. Crucially, capitalism did originate in Western Europe, and its legal forms were exported through imperial expansion. In this sense, the materialist critique does not contradict the colonial critique; it deepens it. But capitalism has globalized to exceed its geographic origins. This explains selectivity more persuasively than geography alone: ICL protects certain property relations and economic orders. It explains convergence: why states with vastly different histories align on excluding corporate accountability, ecocide, and economic crimes from ICL’s scope. ICL prosecutes warlords for child soldiers but not corporations profiting from conflict minerals. Genocide is prosecutable; ecocide is not. Individual criminal responsibility is central; structural adjustment policies generating mass death remain outside ICL’s scope. These exclusions protect economic arrangements that powerful actors, whether in the Global North or South, have invested in maintaining.

Centering those who experience violence, not states that claim to represent them. People’s tribunals, for instance on Gaza and Afghanistan, do not fit neatly into simplistic geographic “West versus Rest” discourse on international law. They challenge all state power: Israeli, American, British but also of Afghan governmental actors. They refuse the state’s monopoly on defining what counts as harm or what justice requires. Communities affected by large scale violence do not primarily care whether their oppressors are held accountable by “Western” or “non-Western” mechanisms; they care whether accountability happens at all, and whether it addresses the structural conditions that enabled the violence.

Disaggregating monolithic categories. “The West” is not a unified actor. European states have different interests from the United States. Within Western states, there are significant differences between governments, civil society, and populations. Similarly, “the Global South” encompasses extraordinary diversity: authoritarian and democratic regimes, victims and perpetrators, elite capture and popular resistance. Treating either as coherent blocs obscures the actual lines of conflict and solidarity that matter.

The Eurocentric frame struggles to distinguish between these because it treats any challenge to Western dominance as potentially liberatory. But a world where the United States, France, Brazil and South Africa all have veto power over accountability mechanisms is not obviously better than one where only the United States does. The question is not which states dominate but whether state domination itself can be challenged. What such a post-geographic analysis ultimately enables is a clearer focus on transnational modes of economic and social harm, and the actors and structures that sustain them.

Pre-empting Misreadings

In order for this not be misread as an apology for Western power, let me be explicit about what I am not claiming.

This is not to argue that colonialism is irrelevant or that its legacies do not shape contemporary international law. They do, profoundly. Power does not operate equally across geography, nor is “everyone equally bad”. The United States’ global military presence, economic dominance, and its role in shaping international institutions create responsibilities and culpabilities that cannot be equated with those of less powerful states.

This is, instead, a plea to turn reflexivity towards our own analytical tools, not just the systems we critique. If postcolonial analysis or Third World Approaches to International Law taught us to interrogate international law’s silences and exclusions, then we must apply that same rigour to our own analytical silences and exclusions.

Finally, the charge of Western apologetics often forecloses difficult conversations. It assumes any move away from centering Western dominance must be a defense of it. But what if the most effective challenge to Western power is moving beyond the constant naming of it as the origin of all problems, and also analysing the actual mechanisms through which power operates today: including how non-Western states reproduce violence, how elites across geography share interests, and how our inherited critical vocabularies sometimes obscure rather than illuminate these dynamics?

Conclusion

There is something uncomfortable about arguing, as a scholar from the Global South, that the critique of Eurocentrism/Western dominance has become insufficient. Perhaps, it has always been insufficient and the current dynamics of how power operates and is diffused globally make it more apparent. Needless to mention that the Eurocentric frame carries moral authority because it names real violence, real exclusions, real histories of oppression. This is not a plea to abandon it entirely, but to recognise its limits and silences and the possibilities it forecloses. Reflexivity, which is one of the main themes of institutions such as the Centre for Advanced Studies RefLex engaged in these conversations, requires asking whether our critiques still serve the political and intellectual work we need them to do, or whether they have become something else: predictable gestures, protective shields, familiar performances that are no longer generative.

What would such an extension of the “West framework” look like? To ask not “is this Western or non-Western?” but “whose interests does this serve?” What violence does it render visible or invisible? What alternatives does it foreclose? What systems of domination and exploitation does it help sustain? To center not states and their representatives but communities experiencing violence and their own understandings of what justice requires. To imagine accountability mechanisms genuinely independent of state power, genuinely responsive to those most affected, genuinely capable of addressing systemic rather than just individual violence.

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Last year, the Court of Justice of the European Union (CJEU or the Court) issued a seminal ruling concerning cross-border recognition of same-sex marriages contracted within the EU, obliging Poland to acknowledge such unions in the civil register. The ruling polarized the country’s already heavily divided society, leading to both conservative backlash and increased mobilization of pro-LGBTQ human rights community. Although the gravity of Trojan is undeniable and the ruling marks a significant addition to the recent advancements in same-sex couples’ protection by the European Court of Human Rights (ECtHR), given Poland’s legal architecture, marriage transcription alone will not enhance protection of same-sex couples. No rights granted to heterosexual couples by virtue of marriage will be conferred on same-sex couples following the transcription. For this to happen, recognition of same-sex marriages in the civil register must go in tandem with the adoption of a (long overdue) statutory regulation of same-sex unions.

The aftermath of Trojan

The ruling in the case Trojan was groundbreaking for several reasons. First, the CJEU obliged Poland to recognize in its civil register same-sex marriages legally contracted in another EU Member State by Union citizens exercising their freedom to move and reside. It did so, even though Poland’s domestic law not only does not allow for same-sex marriages but does not provide for any form of recognition or protection of such relationships. The implications of such refusal of recognition were considered broadly by the CJEU, as infringing not solely upon the exercise of the rights granted by EU law, but as causing “serious inconvenience for those citizens at administrative, professional and private levels” (para 51), impeding both regulation and further enjoyment of their family life strengthened abroad (para 53). In this vein, the Court reiterated at several points in the ruling that the absence of same-sex marriage recognition deprived one of the applicants of a derivative right to health insurance and precluded an update of his surname in a land register.

Second, by comparing the situation of same-sex couples seeking transcription of their marriage certificate to that of different-sex couples (paras 74-75), the CJEU considered the case through the lens of discrimination on the grounds of sexual orientation. The Court expanded its previous case law by declaring the prohibition of such discriminatory treatment, following from Article 21(1) of the Charter of Fundamental Rights, to constitute a general principle of EU law (para 70).

The ruling did not come as a surprise to anyone familiar with the recent jurisprudence of the ECtHR repeatedly condemning Poland for its refusal to transcribe foreign marriage certificates and its denial of issuing marriage eligibility certificates to same-sex couples intending to marry abroad. The decision was nevertheless welcomed as confirming the binding nature of Poland’s transcription responsibilities under EU law and rendering them directly applicable.

On the conservative side of the political scene, the ruling’s intentionally misleading interpretation suggesting that Poland is now forced to introduce same-sex marriages has caused widespread backlash. Similarly, the decision seems to have caught the government off guard given the mutually exclusive positions expressed by its members concerning the “if” and “how” of the ruling’s implementation.

The amendment

Eventually, in mid-January, the government put forth a draft executive regulation amending the official forms of civil status documents, introducing gender-neutral formulation of “the first spouse” and “the second spouse” instead of the previous gendered “husband” and “wife” in marriage certificates.

As a sidenote, a corresponding amendment to birth certificate forms with respect to parent-related data could solve a similar issue pertaining to the transcription of birth certificates of same-sex couples’ children. Being refused such recognition now, they face obstacles in obtaining identity documents.

Notably, the official justification enclosed to the draft executive regulation does not mention the CJEU’s ruling, claiming instead that the amendment is necessary to bring the regulation in line with the Law on Civil Registry. The relevant provisions of the latter contain gender-neutral formulations which means the gendered expressions introduced on the lower, regulatory level contradict the statutory law. It is striking that the true reason for changing the executive regulation is not addressed, as if the government feared the public reaction to it being voiced explicitly.

While the CJEU’s ruling is directly enforceable and can be relied upon by same-sex couples in front of the relevant domestic authorities, the amendment is nevertheless needed for the transcription to be technically feasible. As of now, it is not possible to enter the personal identification number (PESEL) of two persons of the same sex into the digitized civil registry system because gender is encoded in PESEL, and the system – which is designed to allow data of two people of the opposite sex to be entered – does not permit a man’s PESEL to be typed in the field where a woman’s PESEL should appear, and the other way around.

What remains ambiguous is the envisioned personal scope of transcription obligation, that is, which marriage certificates will be transcribed in the domestic civil register. The most intuitive answer would be all of them, but such a solution is questionable given the substance of the CJEU ruling and the government’s approach. Specifically, this question concerns marriages contracted abroad by persons with a permanent residence in Poland. In Trojan, the CJEU ruled on the recognition of a marriage concluded in another Member State in which the couple has “created or strengthened a family life” (para 78). The question is whether a same-sex couple who travel abroad solely to get married also “create or strengthen” their family life there. The Court stated that contracting a marriage is indeed relevant in this context (para 50), but it is not clear whether it is sufficient. On the other hand, the Trojan ruling is not clear enough on that matter to unequivocally exclude such cases from transcription.

That said, some government officials have already announced that transcription would not extend to the cases of so-called “same-sex marriage tourism”. Had such an approach developed in administrative practice, it could be considered as amounting to discrimination on the grounds of sexual orientation by allowing transcription of marriage certificates of different-sex couples that do not permanently reside outside of Poland while refusing such recognition to same-sex couples. Such handling of transcription seems especially problematic given that opposite-sex couples can get married legally in their country of residence, while same-sex couples do not.

Marriage certificate transcription is not enough

When allowed, regardless of its scope and application, marriage certificate transcription will have negligible effects in the Polish legal order and will not substantially advance the rights of same-sex couples. Given the absence in Polish law of any form of legal recognition or protection of same-sex couples, whether through marriage or by means of a registered partnership, transcription does not automatically confer any derivative rights on same-sex couples and thus takes on a merely symbolic meaning. Hence, contrary to what might be suggested by the CJEU’s broad framing of the negative implications of transcription refusals, even when transcription is granted, same-sex couples will not be able to rely on the legal status resulting from marriage.

In Trojan, the CJEU emphasized repeatedly that recognition extends to enabling married same-sex couples to pursue their family life and continue benefiting from their legal status (para 52). The Court hinted at the concrete domains adversely affected when recognition is denied: access to health insurance, registration of surnames (para 50), and enforceability of obligations between spouses and third parties (para 52). While the amendment to the regulation on civil documents will enable transcription, it will not allow same-sex couples to pursue family life and benefit from the legal status conferred by marriage to the extent indicated in the ruling. This is because the legal effects of the ruling are limited to requiring transcription for the purpose of securing enjoyment of the rights granted by EU law (para 61) and do not extend to securing marriage-related rights as such.

For same-sex couples to be able to enjoy such legal protection domestically, statutory regulation of (at least) civil unions must be adopted. This is where the recent ruling of the CJEU converges with the rich jurisprudence of the ECtHR, specifically with the requirement formulated therein obliging Poland to establish an appropriate legal framework for the recognition and protection of same-sex couples. In the cases Przybyszewska and Others v. Poland, Formela and Others v. Poland, Andersen v. Poland, and Szypuła and Others v. Poland, the Strasbourg Court ruled that the lack of any form of domestic recognition of same-sex couples amounts to noncompliance with a positive obligation stemming from Article 8 of the European Convention on Human Rights. The Court has also stated that the protection of same-sex couples must be “adequate” and clarified, in broad brushstrokes, that the statutory regulation must cover such areas as maintenance, inheritance, taxation and mutual assistance. Consequently, implementation of the Trojan must go hand in hand with the introduction of registered partnerships into the domestic law.

The adoption of the relevant law was among the ruling coalition’s leading electoral promises and must be considered long overdue. The latest draft was submitted to the Sejm at the end of December, and the parliamentary proceedings were scheduled for January but have been postponed. Even though Poland remains one of the last four EU countries where the status of same-sex couples remains unregulated, the adoption of the law is still considered controversial, even among the ruling coalition. This is evident when considering the fuss around the name of the law. Initially, the title of the act referred explicitly to registered partnerships but, as a concession to the conservative part of the coalition, it was changed to an act of “status of the closest person”, hiding the core purpose of the regulation.

Finally, it must be highlighted that while the implementation of the Trojan ruling and the adoption of the law on civil unions are necessary to guarantee basic protections to same-sex couples, they also have a profound symbolic meaning in the broader context of Poland’s protracted transition from illiberalism back to the rule of law. Public assessment of the government’s overall agency hinges on its ability to deliver on the promise to finally recognize same-sex relationships and grant them legal protection at least comparable to that enjoyed by heterosexual couples.

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