The International Criminal Court’s biggest problem isn’t Russia 

Britain’s Deputy Prime Minister and Minister of Justice Dominic Raab, left, speaks to Karim Khan KC, Prosecutor of the ICC ahead of the Justice Ministers’ conference, at Lancaster House, in London, Monday, March 20, 2023, in support of the International Criminal Court (ICC) and the investigation into the situation in Ukraine. Photo by Alastair Grant/AP

The International Criminal Court issued arrest warrants Friday, March 17, for Russian President Vladimir Putin and his appointed Commissioner for Children’s Rights, Maria Lvova-Belova, for crimes associated with the Russian war against Ukraine. The ICC, located in the Hague, Netherlands, found sufficient evidence that the two bear “individual criminal responsibility” for the alleged scheme of deporting thousands of Ukrainian children into detention camps before relocating them to 19 different regions across Russia, including Moscow. These actions constitute a crime against humanity falling under “deportation or forcible transfer of population,” according to Article 7 of the Rome Statute, the 1998 document chartering the Court.  

While international organizations such as the North Atlantic Treaty Organization (NATO), European Union and United Nations General Assembly have responded to the Russian invasion of Ukraine — the first two with military support to Ukraine and the latter with a number of resolutions denouncing the war — the arrest warrant issued by the ICC is the first direct legal confrontation against Putin during the course of the war. This even includes financial penalties such as sanctions, which seem to have touched every fixture of Russian political and economic life save for Putin himself. In this context, many Ukrainians and opponents of the Russian war effort of which Putin seems to be the face may look at the ICC’s announcement as an unprecedented opportunity for justice on behalf of the millions of people whose lives have been dislodged or abruptly ended by war. Unfortunately for the Hague, the Court’s fragile mandate and spotty jurisdiction, frequent use of double standards and overall ineffectuality against global powers create existential flaws that should force us to reevaluate the idea of international justice — and to whom it applies in practice — entirely.  

Although the prospect of Putin in cuffs may excite his fervent critics around the world, most have likely already grappled with the fact that it’s not very likely that the ICC can enforce an arrest, much less a sentence, of the Russian president at all. The most direct reason for this is that, much like the United States, China, India, Israel and Saudi Arabia, Russia is not currently a signatory of the 1998 Rome Statute, which outlines the mandate and procedures of the ICC, nor a member of its oversight organization, the Assembly of States Parties (ASP). It solidified this position in 2016 when, 16 years after signing the Rome Statute but failing to ratify the document, Putin announced that Russia did not intend to become a party to the ICC and would withdraw its signature. As such, unless Russia voluntarily delivers them to appear before the court, the only way Putin, Lvova-Belova or any other Russian national could be arrested is within and by a member state.  

This logistical concern is the least of the Court’s issues. In response to the arrest warrants Friday, Kremlin press secretary Dmitry Peskov stated, “Russia, like a number of other states, does not recognize the jurisdiction of this court and, consequently, any such decision is void for Russia from a legal point of view.” If Russia doesn’t want to become a party to the Court’s jurisdiction, why should it? In an ironic sense, forcing a country into a judicial regime that it does not wish to participate in and subjecting it to laws to which it does not consent is just as much a denial of sovereignty as an invasion, albeit with vast qualitative differences. Peskov’s retort against the charges demonstrates how this international court has been rendered almost entirely symbolic for a huge portion of the global population, prompting a difficult question: What good is a court whose jurisdiction is so weak? 

Critical to answering this question is a recognition of how this weakness pairs with a relative one-sidedness as to whom the Court chooses to pursue litigation against. A chief example of this is the ICC’s probe into crimes committed during the war in and U.S. occupation of Afghanistan. To anti-war activists, this investigation offered a similar hope that the architects of the occupation and those who individually committed crimes against Afghans would be brought to justice for such flagrant violations of Afghan sovereignty and human rights. Perhaps this momentum would carry over to U.S. interventions in Iraq, Libya and other subversions of national sovereignty taking place after the 2002 ratification of the Rome Statute. Sadly, these hopes were dashed when the Trump administration authorized sanctions against chief ICC prosecutor Fatou Bensouda and head of jurisdiction Phakiso Mochochoko, freezing their assets in retaliation for the investigation and effectively halting it in its tracks when Bensouda stepped down later that year 

Although ICC judges have allowed the investigation to continue as recently as Oct. 2022, current chief prosecutor Karim Khan expressed that he would “deprioritise” investigations into U.S. personnel. Of course, any attempt to bring the U.S. to justice for its war crimes would be futile anyway, as statute in the 2002 American Service-Members’ Protection Act (nicknamed the “Hague Invasion Act”) authorizes the executive branch to free any U.S. civilian or military personnel from the Hague if they were tried by “all means necessary and appropriate.” Although the ICC largely ignored war crimes claims in Iraq, they did conduct an investigation of British military personnel accused of illegal killings, torture and sexual assault — a case which closed with no prosecutions. The ICC also waited until 2021 to decide that Israel had crossed the threshold into apartheid, which is also considered a crime against humanity under the Rome Statute, against Palestinians living under a violent and discriminatory legal regime within and outside of (settler-colonial) Israeli territory. Echoing the U.S. and Russia, Israel refused to cooperate with the investigation. All the while, all 39 persons indicted by the ICC have been African — many for crimes such as state violence against protesters that the U.S. government is flagrantly guilty of as well. The ICC refers to itself as the “court of last resort,” but it routinely takes the easy route of prosecuting relatively powerless post-colonial states while imperial powers like the U.S. and U.K. remain untouchable — or so it seems.  

International justice is not possible at this historical juncture. “International law” conceals the reality that law proper is a heavily ideological social construct, and ultimately partial to the interests that frame it — those who establish the rules of the “rules-based international order.” It is not ordained democratically by the toiling masses around the world, but by state officials who desire resource extraction and economic gain and will use seemingly neutral legal and political tools to those ends. Meaningful pursuit of international justice must transcend the spatial boundaries of borders and states, as well as the temporal boundaries created by statutes of limitations on human rights abuses from decades prior. It must coexist with an organized, radical shift in the social structure of our own state and economy to make it truly accountable to both those who live under it and those outside its legal borders that it has historically made war on and exploited. 

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