ICC in Wonderland

21 maart 2023 | John Laughland

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

Lewis Carroll, Alice Through the Looking-Glass

When Russia invaded Ukraine, Vladimir Putin attacked the West as “an empire of lies.”  This reminded me both of Ronald Reagan’s attack on the USSR as “the evil empire” but also of what Alexander Solzhenitsyn wrote in his 1973 Letter to the Soviet Leaders : “This Ideology (communism) does nothing now but sap our strength and bind us. It clogs up the whole life of society - minds, tongues, radio and press - with lies, lies, lies. For how else can something dead pretend that it is living except by erecting a scaffolding of lies? … This universal, obligatory force-feeding with lies is now the most agonizing aspect of existence in our country--worse than all our material miseries, worse than any lack of civil liberties.”

The ICC is an illustration of this.  It has issued an indictment against the Russian president in spite of the fact that neither Russia nor Ukraine is a State Party to the Rome Statute of the International Criminal Court.  In principle, therefore, the ICC should have no jurisdiction over either country.  (According to one commentator, Ukraine is not a State Party because it does not want to pay the membership fee.)  Ukraine has, however, in a simple letter sent to the Registrar of the ICC in 2015, accepted the jurisdiction of the Court – but only for crimes committed by Russians.  No war crimes committed by Ukrainians can be adjudicated, according to the explicit text of the Resolution of the Ukrainian parliament appended to the ministerial letter.  So none of the shelling of Donetsk or Lugansk by the Ukrainian armed forces can be investigated or prosecuted because Ukraine chooses not to hand those matters over to the ICC.

The fact that the ICC has no jurisdiction in Russia means that the indictment of Putin and a Russian official is make-believe.  Does the ICC pretend that it has police who can march into the Kremlin and take Vladimir Putin away in handcuffs?  Under what other circumstances does it think this arrest warrant can be carried out?  When in 2015 the then Sudanese president, Omar al-Bashir, visited South Africa, a State Party to the ICC Statute, South Africa refused to arrest him even though he had been indicted for genocide in 2007.  Nothing happened to South Africa as a result.  The obligation on State Parties to carry out arrest warrants against ICC indictees is therefore a dead letter.  Putin expects to visit South Africa later this year (South Africa is a member of the important BRICS alliance) and he will surely receive the same courteous treatment as Bashir did.  The indictment is therefore just a gesture.

Putin is now the sixth head of state to be indicted by the ICC.  Omar al-Bashir has never been sent to The Hague, even though he was overthrown in a coup in 2019.  Muammar Gaddafi was indicted but murdered in October 2011, so he never came to trial : his son, Saif al-Islam Gaddafi, was indicted at the same time but he remains a free man and may well run for election to succeed his father. Laurent Gbagbo of Ivory Coast spent ten years in prison in The Hague until the ICC acquitted him in 2019 – even before he had started his Defence, so weak was the Prosecution case.  The charges against William Ruto, the current president of Kenya, and Uhuru Kenyatta, the previous president, were dropped in 2016 in a case which severely humiliated the Court.  Why does the ICC think it will succeed in arresting the president of the most highly-armed nuclear power in the world, a permanent member of the Security Council, when it cannot even convict leaders of African states?

Second, the ICC is supposed to operate on the principle of complementarity. This principle is outlined in Article 17 of the Rome Statute.  It means that the ICC exercises jurisdiction only when a state is unwilling or unable to carry out the investigation or prosecution.  But why would Ukraine be unwilling to investigate Russian war crimes committed in Ukraine?  Obviously Ukraine is neither unwilling nor unable : on the contrary.  Instead, the decision by the ICC to claim jurisdiction in this case, against the terms of its own Statute, is a political gesture designed to up the ante on the international level and to give the impression that the ICC is stepping up to the plate on the most important political issue of the day.

But it is difficult to see how it expects to give that impression.  The arrest warrant is based on the alleged “deportation” of Ukrainian children to Russia.  Deportation and hostage-taking are indeed mentioned in the Rome Statute (Article 8.2 a vii – viii).  But it is obvious that any children being taken to Russia proper are not being “deported” or taken hostage, but instead transported there for their safety.  Having orphans put into foster homes or adopted is not abduction.  If you read this Guardian article carefully you will see that, although the text repeats the war propaganda vocabulary of the ICC by referring to children being “deported”, in reality the children in this story were immediately reunited with their father on the initiative of the Russian authorities.  How can the ICC Prosecutor possibly hope to demonstrate in a court of law that these children were abducted? 

Finally, the ICC indictment is fascinating for what it does not say.  It does not accuse Russia of aggression against Ukraine (Article 5) even though the US and the EU repeatedly accuse it of “unprovoked aggression”.  The ICC Prosecutor does not accuse Russia of killing prisoners of war, even though Ukraine has alleged that Russia does this.  The ICC Prosecutor does not accuse Russia of bombing civilian targets, even though the UN Human Rights Commissioner has said this could be a war crime.  We have been told for a year that Russia has been committing all these war crimes - but there is not a word about all this in the indictment.  Instead, the Prosecutor concentrates exclusively on something which he has surely misinterpreted.  Does this mean that these larger war crimes have not, in fact, been committed, in spite of what Western propaganda has been saying all along?

In reality, this absurd indictment is an embarrassing illustration of the last gasp of Western hegemony over the international system.  That hegemony has been wielded, inter alia, through international organisations like NATO, the EU, the IMF and the World Bank, some parts of the UN and now the ICC.  By showing itself once more – after the disgraceful Libyan fiasco, when the ICC indicted the Libyan leader as NATO bombs were dropping on that country in a regime-change operation – the ICC and its British Prosecutor have shown themselves, once again, to be not an organ of independent justice but instead nothing but a contemptible puppet.


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