GOODBYE ICC?

"In a world with fewer rules, the only truly effective one is knowing what you can get away with. The answer today, it turns out, is: quite a lot," says Robert Mulley, president and CEO of the International Crisis Group, who served as a special assistant for the Middle East under President Barack Obama. In his article published in the Foreign Policy, Mulley focuses on ten promising conflicts in 2019, arguing that the international order increasingly descends into chaos as the United States is gradually losing the status of undisputed global dominator. One of the main reasons of this process is that such instruments of collective responsibility as the International Criminal Court (ICC) are ignored and underestimated. However paradoxical this argument may sound, it was the US that have ignored and underestimated the ICC from the very beginning. So what is the ICC and how influential is it in the modern world?

A bit of history

The Nuremberg and Tokyo trials, which condemned the perpetrators of war crimes, crimes against peace and humanity during the World War II, had a huge impact on the formation of international criminal law. Seventy years ago, the UN General Assembly adopted a resolution that indicated the need to create a special legal body that would, "on a permanent basis, be engaged in criminal prosecution of individuals responsible for committing crimes of genocide and other similar crimes". But due to disagreements in the definition of the concept of "aggression", the UN General Assembly ceased this work. Realities of bipolar world and the Cold War between two different ideologies in no way contributed to establishing the ICC. Only in the 80-90s of the last century, after the end of the Cold War, collapse of the USSR, as well as the surrender of new Russian authorities to the West in almost all spheres, did this issue reappear on the agenda. At the 52^nd session of the UN General Assembly, it was decided to convene a diplomatic conference in Rome with the participation of all member states to discuss the issue. In July 1998, twenty countries signed the Rome Statute, which became the legal basis for the creation of the ICC, the first permanent international criminal justice authority.

Who is for, who is against

Being independent from the UN, ICC functions as an independent international organisation. Only 121 member states of the UN ratified the Rome Statute. 31 states did not ratify but signed the document, while 41 countries did not see the need to sign it. Interestingly, three permanent members of the UN Security Council (Russia, the US and China), as well as India, Israel and Iran, which pursue antagonistic policies towards each other, are among the last group of the UN member states.

Although Russia signed the Rome Statute in September 2000, it did not want to ratify it. That's why it's not a member of the ICC. Nevertheless, Russia has participated in ICC's activities as an observer state. About two years ago, Russian president Vladimir Putin issued a decree "On the intention of the Russian Federation not to become a party to the Rome Statute of the International Criminal Court". It is likely that this move of the Russian president is one of the asymmetrical answers to Washington considering sharp confrontation in Syria and Ukraine. Also, as mentioned above, the US was one of the few countries vehemently and principally opposing the idea of ​​creating the ICC. Washington viewed this organisation as limiting the sovereignty of states and endowed with indefinitely broad powers. That is why, two years after signing the Rome Statute in 2000, Washington withdrew its signature. Interestingly, when signing the document, the then US President Bill Clinton said that he would not submit it to the Senate for advice and consent for ratification until the US government had a chance to assess the functioning of the Court. During the reign of George W. Bush, who completely abandoned the Rome Statute claiming that it violated the national interests and sovereignty of the US, the government adopted a special law on the protection of American personnel abroad. He authorised the use of military force to release any American citizen or citizens from among the US allies who were detained on the territory of any ICC signatory state.

Thus, the ICC did not apply to the US and its citizens in any case. Moreover, Washington has concluded bilateral agreements with a number of states requiring them not to deport suspected US citizens to the ICC. Otherwise, Washington threatened to stop military assistance and any other support to such countries. Hence, in principle, it is not possible to make any claims, since the parties concluded a bilateral agreement. But the country positioning itself as the key defender of democratic and liberal values ought to show a larger degree of scrupulousness compared to all other states in matters concerning fair punishment for war crimes even if the perpetrators are the US citizens. Washington, however, has demonstrated an opposite attitude. Last September, the US National Security Advisor John Bolton accused the ICC of exceeding authority and openly threatened the prosecutors, saying that they could be subject to visa restrictions. According to him, if they "abuse their powers" and begin to investigate the actions of Americans, they can be severely punished, even to prosecution in the US: "We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans." Naturally, similar measures can also be applied to countries cooperating with the ICC in the investigation of misdeeds of American citizens. Bolton tried to justify this approach by the alleged threat of the sovereignty and US national security by ICC.

In fact, ICC adopts decisions in relation to countries regardless of their affiliation with the Rome Statute. Moreover, the structure of the ICC contradicts the fundamental American principles and the model of separation of powers. There are no mechanisms ensuring adequate responsibility of the ICC itself, or the possibility, if necessary, to limit its powers. This position puts the ICC above the American constitution. Apparently, the problem is quite different though. It is the intention of the ICC to investigate the actions of the American military in Afghanistan. A little more than a year ago, an ICC prosecutor made a request in connection with this. It should be noted though that the investigation was initiated neither by Kabul nor by any other country, which is a party to the Rome Statute. It is unlikely that Afghanistan, where the American military contingent and numerous PMCs (private military companies) have settled thoroughly, as well as any other countries, would send a similar request. Moreover, the US puts its jurisdiction above all international legal norms. But the ICC, on its own initiative, can initiate an official investigation against the American military, whom J. Bolton calls patriots.

International Caucasian Court?

It is not surprising that given such discrepancies, some states, especially in Africa, intend to leave the ICC. For example, more than two years ago, Gambia, South Africa and Burundi withdrew their signatures, explaining this by the biased activities of the ICC. Kenya, Uganda, Namibia and the Philippines are considering a similar possibility. The governments of these countries believe that the ICC is particularly zealous only in investigating events in Africa, while remaining indifferent to the war crimes of Western countries. Thus, the Gambian Minister of Information Sheriff Bojang said the following: "There are many Western countries, at least 30, that have committed heinous war crimes against independent sovereign states and their citizens since the creation of the ICC and not a single Western war criminal has been indicted." In this context, ICC is in fact an International Caucasian Court for the persecution and humiliation of people of colour, especially Africans. The discontent of most countries is also reinforced by the fact that nine out of ten ongoing investigations by the ICC affect precisely the events in Africa. It is possible that the ICC has a strong reason for these investigations. But countries expressing their claims emphasize that at the same time there is a lot of evidence about the crimes of Western countries, which, moreover, defiantly neglect not only the Rome Statute, but also international legal norms. But for some reason, until now, the ICC has showed surprising loyalty to them. At least in the context of events in Afghanistan and Iraq invaded by the US and its allies on a false ground, which the former British Prime Minister Tony Blair publicly admitted in July 2016. Based on the same false accusations, the Western coalition invaded Libya, which has since been in a state of a civil war, without prospects of restoring its statehood. Nevertheless, the ICC has stubbornly sought the extradition of the son of the former Libyan leader Muammar Gaddafi, Seif al-Islam, although the Libyan court released him in April 2016 under an amnesty announced by the government in Tobruk.

Today, amidst the ongoing tough confrontation between the US and Russia, which is drawing in an increasing number of countries voluntarily or involuntarily, a possible collapse of the ICC does not promises any good to the humankind. Its presence, at least to some extent, helps to limit the riotousness of some people and countries, although the powerful people drop out of this list, or rather, exclude themselves from it. But the complete unleashing of the hands ultimately can only lead to a war of all against all.

Once Dag Hammarskjöld, the former UN Secretary General, said: "…the United Nations was not created in order to bring us to heaven, but in order to save us from hell." Today we can say the same words with reference to the ICC.