On November 16, Russian President Vladimir Putin signed a decree formally withdrawing Russia from the International Criminal Court (ICC). Russia is a signatory to the Rome Statute, a document that formed the basis for the establishment of the court in 2000. However, Moscow has not ratified the treaty.
According to the statement of the Russian Foreign Ministry, the ICC «failed to… become a truly independent and respected body of international justice». The statement notes that the judicial body is ineffective and one-sided. During 14 years, it has passed only four sentences having spent over a billion dollars.
Some provisions of the Rome Statute contradict Russia’s constitution, including the mandatory transfer of investigated persons to the ICC, the right to sue heads of state and government figures, and non-compliance with the principle that no one should be held accountable twice for the same crime («ne bis in idem»).
Earlier this year, the tribunal opened its first case outside Africa: an investigation of the Russia-Georgia war of 2008. Despite the fact that the European Commission investigated the conflict and declared that it was started by Georgia, labeling Tbilisi's actions as unjustified, the ICC decided to open a probe, focusing on the actions of South-Ossetians and Russian soldiers.
Georgia’s attack on Tskhinval and the following casualties among civilians and the Russian peacekeepers resulted in the ICC's accusations against South-Ossetian militia and Russian military. The eventual ruling on the activities of Georgian officials was left to the discretion of the Georgian justice. This is just one of numerous examples of the ICC being biased and inefficient.
The ICC’s report on Russia’s «temporary occupation of Crimea» was the last drop to make Russia pull out. On November 14, the court issued a preliminary report that described Crimea as «an international armed conflict between Ukraine and the Russian Federation». The paper ignored the fact that a popular referendum was held in 2014 to determine the peninsula’s status.
The court was established in 2002 to prosecute individuals for genocide, crimes against humanity, and war crimes. The body was given jurisdiction over international offenses committed anywhere in the world in an effort to start a new era of international justice.
According to the Rome Statute, the ICC may exercise its jurisdiction in the following situations - when the commission of the crimes is referred by a State party or; when the UN Security Council refers a matter or; when the ICC’s Prosecutor initiates an investigation.
In addition to it, the ICC can exercise its jurisdiction only if «the State on the territory of which the conduct in question occurred» or «the State of which the person accused of the crime is a national», is a party to the Rome Statute. Even the non-state parties, i.e. countries who have not signed the Rome Statute can approach the ICC by lodging a declaration with the Registrar of the Court.
From its very inception, the body has been susceptible to severe criticism, including selectivity, statutory limitations, and potential overreach. The ICC faces serious challenges in relation to credibility and legitimacy.
Some states express concern over the use of the ICC against non-state parties for political reasons. They insist that it should try an individual only when both, i.e. the state in whose territory the crime has occurred and the state having custody of the accused, give their consent. States also object to the UN Security Council’s power to refer a situation of a state to the ICC, even when that state is not a signatory to the Rome Statute.
The powers of the prosecutor are criticized. Many states find it inappropriate to empower an individual to initiate investigations because it puts the prosecutor at par with states in referring a matter to the ICC.
Some countries oppose the ‘principle of complementarity’, which states that the ICC acts as a court of last resort and exercises jurisdiction only when a state is ‘unwilling or unable’ to prosecute an accused. The power of ICC to examine the inability or unwillingness of the domestic legal system violates states’ national sovereignty.
Many states oppose the body’s s jurisdiction over crimes committed in non-international armed conflicts. The crime against humanity, which is often linked with human rights, might turn the ICC into a court addressing human rights issues. Therefore, the ICC could be used to interfere in states’ internal affairs in the name of human rights violation.
It’s interesting to note that the court has so far failed to amend the Rome Statute by defining the «crime of aggression», despite the fact that the term is used in its reports and rulings. The Statute does not state that it’s up to the UN to conclude that an act of aggression has taken place before the court launches an investigation. The priority of the UN over the ICC jurisdiction is not stated by the Statute. Some countries, like Russia, for instance, believe this is a serious drawback to be rectified if the ICC is to become a credible international body.
34 countries have signed the statute but never ratified it, including Iran, Israel and Egypt. Some states, like India, China and Pakistan, have not even signed the treaty.
The United States is also not a participant in the International Criminal Court (ICC). Washington stays outside of its jurisdiction, as government officials fear the entry may lead to the prosecution of American soldiers. According to ICC’s Chief prosecutor Fatou Bensouda, the court is also poised to investigate the US for war crimes in Afghanistan. The United States first signed the ICC treaty under President Bill Clinton, but his successor George W. Bush revoked the signature over concerns that ICC prosecutions could turn political and target Americans.
Russia’s decision to pull out is part of a broader trend. The tribunal is already facing a major pushback from African countries, who say the international body is influenced by the West. The Russia’s withdrawal was following the same move taken in October by African states: Burundi, South Africa and Gambia. Sudan, Kenya, Namibia and Uganda have also indicated they are considering pulling out of the Rome Statute.
The African Union’s threat to withdraw from the ICC could spark the withdrawal of numerous African countries – and perhaps even some Latin American ones – from the court. African leaders believe the court persecutes «people of color, especially Africans». Noticeably, out of the ten situations under investigation by the ICC, nine are from the African nations.
Philippines' President Rodrigo Duterte openly supported Russia, also threatening to pull out of the court. He reiterated his intention to align with China and Russia. «If Russia or China will decide to create a new world order, I will be the first to join», he said.
Russia’s decision and the recent spate of departures may prompt a change in approach for the International Criminal Court with its legitimacy and raison d’etre already questioned. The ICC has failed to live up to the expectations and badly needs to be reformed. Otherwise, it risks sliding into irrelevance.