BERLIN – After years of snail-pace investigations of war crimes in Africa, the International Criminal Court in The Hague may finally be trying to go after the big guys — Russia and the United States. The U.S., however, has never accepted the court’s jurisdiction, and Russia has now adopted the same stance.
On Monday, the ICC’s Office of the Prosecutor, run by the Gambian lawyer Fatou Bensouda, issued a report describing the 2014 annexation of Crimea by Russia as an “international armed conflict between Ukraine and the Russian Federation.” It went on: “The law of international armed conflict would continue to apply after March 18, 2014, to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation.”
Putin’s regime claims Crimea voluntarily joined Russia after a referendum and said the ICC had proved itself to be “one-sided and inefficient.”
The ICC’s chief prosecutor also alleged “war crimes of torture and related ill-treatment, by U.S. military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014.”
The ICC, set up in 2002, has been a tame, rather inefficient institution. It has only completed proceedings against 17 people, and has convicted just three. All 39 suspects indicted by the court have been African. Burundi, South Africa and Gambia cited that history when they said they would no longer recognize the court’s jurisdiction. Bensouda’s report appears to be an attempt to show the court has a broader reach — but the reaction of the bigger powers has been predictable.
Elizabeth Trudeau, the U.S. State Department spokeswoman, said Tuesday that the U.S. did not “believe that an ICC examination or investigation with respect to the actions of U.S. personnel in relation to the situation in Afghanistan is warranted or appropriate.” The U.S., she said, is not an ICC member, and in any case it had its own robust procedures to hold members of its military accountable.
On Wednesday, Putin ordered the Foreign Ministry to notify the United Nations secretary-general that Russia would withdraw its signature from the Rome Convention, which governs the court. The Foreign Ministry issued a statement saying the ICC had spent $1 billion to pass just four sentences in 14 years, and that Moscow didn’t trust it because it focused on investigating Russian and not Georgian actions in the brief Russian-Georgian war of 2008.
Putin’s action may also have pre-empted possible war-crime accusations against Russia because of its involvement in Syria.
For Russia, withdrawing from the ICC is part of a recent effort to get away from the jurisdiction of all supranational courts. Last year, the Russian Supreme Court asserted that its decisions had priority over those of the European Court of Human Rights, a European Union institution in Strasbourg that Russia joined in the 1990s, under Boris Yeltsin. Later, Putin signed a law allowing Russian courts to overturn ECHR decisions.
Russia’s brief love affair with the West in general and with Europe in particular is over. The only standard against which it will now be measured is the U.S., with its tradition of only working with international bodies when it suits American interests.
Not recognizing the ICC can’t stop U.S. or Russian citizens from being prosecuted for war crimes. The court doesn’t only have jurisdiction over the citizens of its member states. Afghanistan is a member, and Ukraine has accepted the court’s jurisdiction, though it hasn’t ratified the Rome Convention. Yet, in practice, the court will never get its hands on U.S. military personnel; Russia is making the point that it, too, can be above the law.
The demonstration of the ICC’s powerlessness is timely. Donald Trump supporters in the U.S. dislike anything that looks like a supranational government. I heard some of them call for pulling out of the U.N. Russia, too, is unhappy with the global institutions: Putin believes they essentially promote Western interests. Both leaders are likely to weaken the existing institutional framework even further.
A Russian writer based in Berlin, Leonid Bershidsky is the author of five books and is a Bloomberg View columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.
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