Saturday, 3rd June 2023

The International Criminal Court and alleged selective justice

By ‘Femi D. Ojumu
22 March 2023   |   3:17 am
Ordinarily, there would be no justification for the International Criminal Court (ICC) because domestic tribunals would effectively and robustly adjudicate criminal proceedings, meting out the correct sanctions.

International Criminal Court

Ordinarily, there would be no justification for the International Criminal Court (ICC) because domestic tribunals would effectively and robustly adjudicate criminal proceedings, meting out the correct sanctions. Interpol and related institutions would gather intelligence, apprehend criminals/suspects and, subject to relevant interposing extradition treaties between states, render them to those jurisdictions in which they are being sought for prosecution. Ditto, leaders and nations would routinely abide by the dictates of international law.

Unfortunately, that’s all phantasmagoria. Realistically, there are bad actors, rogue states, criminal proxies; they seek to evade justice too! They commit terrible crimes, which by the way, are not victimless. On the contrary, the emanating crimes oftentimes result in financial loss. Even worse, the unholy trinity of destruction, displacement and deaths impacting innocent people in varying degrees. Should the world bury its head in the sand and do nothing? No!

After all, a repeat of the Bosnian War (1992-1995) which claimed over 100,000 lives is most undesirable; a locus which, in part, arguably, informs the North Atlantic Treaty Organisation’s (NATO’s) active support for Ukraine in its ongoing war with Russia! Should proactive measures be taken to ensure the risk of war is minimised globally? Absolutely! Does the ICC have a role to play here? Certainly, although the extent of that role and the balance of its dispensation of justice, relative to international geopolitical dynamics, apprehends the attention of this treatise.

Public international law is in issue and so is its expatiation. It is a concept defined by the Permanent Court of International Justice (PCIJ) in the famous SS Lotus Case (France v Turkey), (1927) PCIJ Series A – No 10, as: the principles which govern relations between independent States. The rules of law binding upon states therefore emanate from their own will, as expressed in conventions (treaties) or by usages, generally accepted as expressing principles of law, established in order to regulate the relations between these co-existing independent communities, or with a view to the achievement of common aims.

For expatiation, the facts of the case are briefly summarised. A collision occurred between a French steamship (SS Lotus) and a Turkish vessel (SS Boz-Kourt) on the high seas, slicing the latter in half, sinking it and claiming the lives of eight Turkish nationals. The SS Lotus’ French captain was fined and imprisoned by the Turkish authorities – although vehemently opposed by France – upon which both countries ceded jurisdiction of the matter to the PCIJ (precursor to the International Court of Justice). It was held that Turkey did not violate any international law principle by prosecuting the French captain.

Notwithstanding, it is worth establishing that pursuant to this case, the Geneva High Seas Convention (1958) was signed and Article 11 therein provides inter alia, that in the event of a collision on the high seas, no penal or disciplinary proceedings maybe instituted against the master or any service person of the ship other than the flag state of the ship or the nationality of the person. The 1958 has since been updated by the United Nations Convention on the Law of the Sea (UNCLOS) effective, 1994 which establishes an international framework for all marine and maritime activities. As of 2016, 167 countries and the European Union are treaty parties.

The material point here is that the ICC is regulated by international law and cannot ordinarily overreach its jurisdiction to encompass non-signatories to its enabling statute. Put simply, the principle of consent by signatories to its establishment treaty confers jurisdictional legitimacy upon the ICC. This proposition is unimpeachable where there are alleged criminal actions between nation states that are signatories to the ICC treaty; the jurisdiction of the ICC is invoked. However, that proposition gets tested to the finest legal limits when the alleged criminal actions of a non-ICC treaty signatory State A, results in the annexation and or destruction of State B, a treaty signatory.

These issues go to the beating heart of the ICC’s foundational rationale splitting informed scholarly opinion. Is the ICC an Atlanticist creation to advance pro-Western ideological leanings? Is the ICC’s jurisprudential bent anti Africa, anti-China and anti-Russia? Is the ICC a political court dispensing selective justice to suit particular geo-political interests? Or, is the ICC simply a logical, reasonable and strategically coherent, response by the international community to address ruinous injustice, ethnic cleansing, war crimes and unlawful annexation?

Article 1 of the Rome Statute of the International Court 1998 established the ICC, effective 2002, with jurisdiction over persons for the most serious crimes of international concern. The ICC currently has 123 member states. Pursuant to powers contained within articles 5, 6, 7, and 8, the ICC investigates and, as justified, tries persons charged with the gravest crimes of concern to the international community, genocide, war crimes, crimes against humanity and the crime of aggression; whilst complementing national criminal courts’ jurisdiction. The preamble to the Rome Statute affirms inter alia that the severest crimes “of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.”

By these very definitions, the ICC is immediately drawn into the political arena. Because some nation states perceive its objects as either directly or indirectly encroaching on domestic criminal jurisdiction and therefore pointedly refused to ratify the treaty. China, Russia and the United States are classic examples. Take the US, the bastion of democracy. The country vehemently guards its sovereignty, consistently projects its ‘hard’ and ‘soft’ power either directly or via strategic alliances globally and exercises a complex strategically ambiguous relationship with the ICC. So, where there is contestability between America’s and ICC’s strategic interests, the former will prevail.

This proposition is markedly reinforced by the American Service-members’ Protection Act (ASPA) 2002 aimed at supplanting US government support for the ICC; against the backdrop of the US-led Iraq war of aggression in 2003 which never received Security Council approval! The seminal legislation required the United States “to enter into agreements with all ICC signatory states to shield American citizens abroad from ICC jurisdiction, under the auspices of Article 98 of the Rome Statute” Plus, the US exercised Bilateral Immunity Agreements at the time “which guarantee immunity from ICC prosecution for all American citizens in the country with which the agreement is concluded.”

Ideologically, where the United States, a UN Security Council permanent member with veto powers, leads, other nations tend to follow; again, upon the contention, though adaptable to local circumstances, of strategic/national interests. Unsurprisingly therefore, American’s close ally, Israel, did not ratify the ICC treaty. Likewise, Russia and China (close allies and UN Security Council permanent members with veto powers); Thailand, Yemen, Zimbabwe and others did not ratify the ICC treaty. Plainly, the non-ratification of the treaty by the three superpowers in particular, presents the ICC with a credibility problem.

If it creates exceptions for the United States on the grounds of strategic national interests, on that very logic, it ought to create exceptions for Russia and China, and indeed, other states, on similar grounds. If the ICC fails there, it reinforces the viewpoint that it exercises pro-Western biases. Conversely, if it acts in a scrupulously objective manner in all areas, its credentials as a global enforcer of the rule of law will be greatly enhanced.

Regarding the school of thought, which alleges ICC’s anti African, Russian and Chinese stance, is this charge borne out evidentially? Certainly, the fact that the ICC’s first successful decision, against Thomas Lubanga, a Congolese warlord for war crimes and using child soldiers, ten whole years after the founding treaty came into effect in 2012, raised serious questions as to its purpose, competence and effectiveness. Plus, as at 2018, twelve of the ICC’s twenty-five investigations or 48% have been serious crimes involving Africans – raising questions as to the ICC’s disproportionality of focus and double standards.

The double standards contention is particularly strident as it concerns Israeli occupation of Palestinian territories. The United Nations Human Rights Commission in October 2022 opined that “Israel’s occupation of Palestinian territory is unlawful under international law due to its permanence and the Israeli government’s de facto annexation policies.”

The question then is why is the ICC seemingly powerless to act in this regard given the powers contained within Article 15 (1) of the Rome Statute which enables the ICC prosecutor to “initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court” whilst seeking “additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate” pursuant to the Article 15 (2) therein? In that sense, is the ICC applying selective justice or is it merely acting within its limited powers and the nemo dat quod non habet principle?

Balancing these competing scholarly arguments, this intervention adopts the view that the ICC is a pragmatic attempt by the international community to address grave problems confronting humanity, its many imperfections and inconsistencies notwithstanding. The UN Security Council’s dynamic impinges the ICC’s remit in that through Articles 5 (b), 13 (b) 15 bis (5), (6), (7) et al, the former’s authorisation is required for the ICC to effectively undertake its work concerning referrals.

Paradoxically, ICC is patently incapable of resolving the geopolitical tensions at the UN Security Council with veto power wielding America and western allies on one side vs Russia and China on the other side. How, for example, will the ICC effect the prosecution of Russian President, Vladimir Putin, and that of his Commissioner for Children’s Rights, Maria Lvova-Belova following its request of March 17, 2023?

Conversely, Russia, on March 20, 2023, opened a criminal case against the ICC prosecutor and its judges for crimes under Russian law for suspicion of “preparing an attack on a representative of a foreign state enjoying international protection, in order to complicate international relations.”

The ICC therefore confronts a major strategic quandary: not satisfying all sides every-time. It can only work within its powers invariably remaining within the crosshairs of geopolitical push/pull dynamics by superpowers – with lingering accusations of double standards.

Finally, no country is compelled to join the ICC. The obligation falls upon each country to think carefully, seriously consider their strategic interests over the short, medium and long term before rushing headlong into joining the ICC. The calculus from the foregoing entails transformative leadership, effective governance, democratic credence, honouring the rule of law, human and socio-economic rights whilst living peaceably with one’s neighbours.

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.

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