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Russia withdraws signature from international criminal court statute

Russia was right to withdraw from ICC but for the wrong reasons.

November 16

0:00
2016

Moscow , Russian Federation - 16 Nov 2016 - Guardian

Russia has said it is formally withdrawing its signature from the founding statute of the international criminal court, a day after the court published a report classifying the Russian annexation of Crimea as an occupation. The Russian foreign ministry made the announcement on Wednesday on the orders of president Vladimir Putin, saying the tribunal had failed to live up to hopes of the international community and denouncing its work as “one-sided and inefficient”.

The presidential decree, published on the official Russian legal information portal, orders the authorities “to accept the proposal of the Justice Ministry of Russia, coordinated with the Russian Ministry of Foreign Affairs and other federal bodies of executive power, with the Russian Supreme Court, the General Prosecutor of the Russian Federation and the Russian Investigative Committee, [to send] the Secretary General of the United Nations a notice of the Russian Federation’s intention not to become party to the Rome Statute of the International Criminal Court.

Russia signed the Rome statute in 2000 and cooperated with the court, but had not ratified the treaty and thus remained outside the ICC’s jurisdiction. This means that the latest move, though highly symbolic, will not change much in practice.

“This is a symbolic gesture of rejection and says a lot about Russia’s attitude towards international justice and institutions,” said Tanya Lokshina. of Human Rights Watch. “On a practical level it will not make much difference, but it is a statement of direction: it shows that Russia no longer has any intention of ratifying the treaty in future or of cooperating with the court.”

In January, the Russian foreign ministry said it would reconsider its attitude to the court after rulings on the 2008 war between Russia and Georgia. Commenting on the decision to withdraw its signature.

The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court's work it passed only four sentences having spent over a billion dollars,” the statement said.

The United States of America was one of only 7 nations (joining China, Iraq, Libya, Yemen, Qatar and Israel) to vote against the Rome Statute of the International Criminal Court in 1998. The Bush administration's hostility to the ICC has increased dramatically in 2002. The crux of the U.S. concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of U.S. military and political officials and personnel. The U.S. opposition to the ICC is in stark contrast to the strong support for the Court by most of America's closest allies.

In an unprecedented diplomatic maneuver, the Bush administration effectively withdrew the U.S. signature on the treaty. At the time, the Ambassador-at-large for War Crimes Issues Pierre-Richard Prosper stated that the administration was "not going to war" with the Court. This has proved false; the renunciation of the treaty has paved the way for a comprehensive U.S. campaign to undermine the ICC.

First, the Bush administration negotiated a Security Council resolution to provide an exemption for U.S. personnel operating in U.N. peacekeeping operations. The administration subsequently failed to obtain an exemption for peacekeepers in East Timor. Later the Bush administration vetoed an extension of the UN peacekeeping mission for Bosnia-Herzegovina unless the Security Council granted a complete exemption. Ultimately, the U.S. failed in its bid for an iron-clad exemption, although the Security Council approved a limited, one year exemption for U.S. personnel participating in UN peacekeeping missions or UN authorized operations.

Second, the Bush administration required states around the world to approve bilateral agreements requiring them not to surrender American nationals to the ICC. The goal of these agreements ("impunity agreements" or so-called "Article 98 agreements") was to exempt U.S. nationals from ICC jurisdiction. This also led to a two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world's citizens.

Thirdly, the U.S Congress had assisted the Bush administration's effort to obtain bilateral impunity agreements.

The Congress passed the American Servicemembers' Protection Act (ASPA), which was subsequently signed into law by President Bush. The major anti-ICC provisions in ASPA were:

  • a prohibition on U.S. cooperation with the ICC;
  • an "invasion of the Hague" provision: authorizing the President to "use all means necessary and appropriate" to free U.S. personnel (and certain allied personnel) detained or imprisoned by the ICC;
  • punishment for States that join the ICC treaty: refusing military aid to States' Parties to the treaty (except major U.S. allies);
  • a prohibition on U.S. participation in peacekeeping activities unless immunity from the ICC is guaranteed for U.S. personnel.

However, all of these provisions are off-set by waiver provisions that allow the president to override the effects of ASPA when "in the national interest". The waiver provisions effectively render ASPA meaningless.

Back In 1998, when the groundbreaking idea turned into reality, and 50 years of debate ended as the first International Criminal Court (ICC) was established as a result of the Rome Statute, there was much hype about the ICC and how it would lead to a reduction in war crimes. This judicial body took shape and created the foundation of a permanent court to prosecute persons that committed war crimes, crimes against humanity and genocide. The idea of an international criminal court came about from many factions. At the end of World War II the Allied Powers responded swiftly after the discovery of crimes committed by the Axis Powers. They therefore created the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and the Charter of the International Military Tribunal (IMT).

Unfortunately, the ICC did not capture the interest of those 7 countries that had to be included; why, because the United States, as the sole surviving super power, should have led by example. The moment Bush started his opposition against the ICC; it was obvious that the United States wanted the freedom to commit such crimes; or at least believed that some of the actions it was planning or expected to carry out in the future, were likely to be labeled as war crimes. Off course, the Iraq war went on to prove these assertions correct, and the U.S. not only committed such crimes, but expanded its operations across the world always under the veil of either brining democracy or making the world a better place.

Israel on the other hand, should have been the first to embrace such an organization. After all they were the main victims of war crimes and the holocaust which has been continously used to shame the Europeans and other countries that participated in the genocide of the Jews in Europe should have been the promotional banner of the ICC as a warning to the world to never let such a tradegy take place again.

What about Qatar, why on earth would Qatar not ratify the ICC. A small country in the Gulf had no reason whatsoever to reject the ICC unless they too had some inclination on committing war crimes or more likely, were expecting to host people conivcted of such crimes.

The same applies to China, as a rising super power, it should have taken the bull by the horns and made ICC membership mandatory for any country desiring bilateral trade; because after all, leading by example is one of the tenants of a civilised society. China's refusal to embrace the ICC was most likely predicated on the fact that the United States itself was not a champion of such a noble organization.

I will leave out Libya, Yemen and Iraq, even though they too had no plausible excuse and should have ratified and embraced the ICC. In fact, no country on this planet has the right to refuse to embrace such an organization because no country or individual has the right to commit such heinous crimes against the rest of the world's population.

Russia's exit from the ICC did not come as a surprise to me; however the statement they issued on why they were leaving had little if anything to do with the real reason behind their withdrawal. The reality is that like the Security Council and other world bodies, the ICC has become the tools that are used against weaker nations or those that refuse to accept US hegemony over their lives. As a result, the decision by the Bush administration to first oppose the ICC, followed by the selective use of the ICC over some nations but not others has all but rendered this organization irrelevant.

 

4 Comments

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  1. TheBear

    Way to go Russia...Youve done enough for peace. Time to take care just for yourself. On the other hand, why needs the world ICC, if no one of big players will ratify...

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  2. Tim Blitz

    Dangerman Now the USA never submits to any international tribunal unless it is in control of it.  The USA has been known to ship out members of its military when they get into trouble in foreign lands.  IMHO Russia is doing the right thing by not ratifying the agreement, if it is OK for the USA not to expose their troops for possible war crimes charges then it should be OK for all countries to do the same.

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  3. Barry Palmer

    Such accusations, however, misplace the blame. Given the Court’s jurisdictional handicap, it is both unfair and unwise to hold the ICC (or the OTP) accountable for its unbalanced caseload. Rather, this imbalance is a result of the fact that many of the world’s most prosecutable non-African countries have successfully immunized themselves, and therefore their citizens, from ICC investigation. Similarly situated African states, however, have failed to do so. The result is an “immunity gap” between prosecutable African and non-African states.

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  4. David Allan

    The International Criminal Court (ICC) was established with the hope that it would pursue those persons responsible “for the most serious crimes of international concern.” Since the Rome Statute’s entry into force in July 2002, the ICC has opened situations in eight countries, all in Africa, leading some to argue that the Court has an African bias. A common defense to this critique has been that the ICC only goes after the “most serious” situations, and those situations all happen to be in Africa. By attempting to quantify the gravest situations since 2003, this comment intends to explore this defense to see whether the ICC is truly pursuing the worst crimes within its jurisdiction. If there are conflicts outside of Africa within the jurisdiction of the Court that are graver than the current eight situations, then maybe the ICC is unfairly targeting Africa.

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    • 16 Nov 2016 Robert

      It is not inappropriate because if somebody has committed a crime, he/she ought to be prosecuted but the issue is that the ICC is only interested with African law offenders. Why Africa? Is it Africans who commit crimes only? Personally, I am losing faith with the Court and wish to request the judges and the OTP to explain to the world why they are overlooking other law offenders from other countries outside Africa

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