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ICC VERDICT AT RUSSIA: A LEGAL ANALYSIS

INTRODUCTION

On July 17, 1998, at an international conference in Rome, where 120 nations decided to ratify the treaty that established the Court’s statute following protracted discussions leading to the formation of the International Criminal Court on July 1, 2002, The ‘Rome Statute’ serves as the ICC’s guiding legal instrument, it investigates the most serious crimes of concern to the world community and brings cases to trial when necessary. So far 31 cases[1] have been dealt with under this, It has two Official languages: – English and French, and its Headquarters are in The Hague, Netherlands. The Rome Statute, which created the International Criminal Court (ICC), was signed by Russia in 2000. However, Russia never ratified the Rome Statute. Hence it is not a State Party to the ICC.

JURISDICTION AND POWERS

The International Criminal Court (ICC) will prosecute the most serious crimes of concern to the international community, including genocide, crimes against humanity, and war crimes.[2]

Genocide

Genocide is the commission of acts to destroy, wholly or partially, a national, ethnic, racial, or religious group.[3] Such actions may include:

  • The killing of members of the targeted group.
  • Causing them serious physical or mental harm.
  • Children from the group were forcibly moved to another group.

The definition of genocide is taken from the 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide[4], which established genocide as an international crime in response to the Holocaust.

Crimes Against Humanity

Crimes against humanity refer to crimes carried out in a widespread manner against any civilian population. These types of crimes may involve murder, deportation, forced population transfer, imprisonment, torture, rape, sexual slavery, sexual violence and other inhumane acts that intentionally cause severe mental or physical suffering or injury.[5]

War crimes

War crimes refer to severe violations of the laws and customs applicable in armed conflicts and the Geneva Conventions of 12 August 1949[6], which are international agreements for defining the rules of war. These conventions establish global standards for protecting civilians and treating combatants in international and internal armed conflicts. War crimes can occur in internal and international armed conflicts, including murder, torture, inhumane treatment, and taking hostages. Intentionally directing attacks against the civilian population, personnel, or humanitarian missions, killing or wounding a surrendered combatant, and attacking civilian objects qualify as war crimes.[7]

ROME STATUTE OF 1998

The Rome Statute of the International Criminal Court (ICC) is a treaty adopted in July 1998 in Rome; recently, on 1 July 2022, the Rome Statute marked its 20th anniversary; the Statute explicitly grants the ICC jurisdiction over crimes against women if they amount to genocide. 123 countries have ratified the Rome Statute as of May 2023[8]. It is considered a landmark in the development of international law, as it creates a permanent court to hold individuals accountable for the most severe crimes of concern to the international community.

CAN ICC PUNISH PRESIDENTS AND WILL PUTIN GET ARRESTED?

Karim Khan, the prosecutor for the International Criminal Court (ICC), said shortly after the beginning of the Russian invasion of Ukraine around 24th February 2022, that his office will look into allegations of war crimes and crimes against humanity in Ukraine.[9] Although neither Ukraine nor Russia has ratified the Rome Statute, which didn’t grant ICC its jurisdiction, Ukraine made a restricted declaration in 2014 to recognize the ICC’s authority over crimes perpetrated on its territory[10]. Recently on 17th March 2023, Karim Khan issued an arrest warrant against the President of The Russian Federation, Vladimir Putin and the Ombudsman of Russia, Maria Lvova-Bellova[11]. Both of them are accused of war crimes of kidnapping and deporting children from Ukraine to Russia. It implicates the difficult issue of immunity ratione personae for a head of State before the International Criminal Court[12]. Although the ICC has no jurisdiction to prosecute any act committed by Russia as Russia has not agreed to any aspect of the ICC’s jurisdiction they can’t be held liable under the same. Even the ICC doesn’t have a  police force of its own and thus depends on member states to arrest suspects and deliver them to the court for making that possible Putin had to visit any member country. Additionally, the ICC can’t prosecute Vladimir Putin, as he is the president of a non-party state and is still in office. Another complicating issue is that the United States, one of the countries advocating for Putin to be prosecuted at the Hague, is not a member of the ICC. The US government voted against the ICC during the 1998 Rome Conference,[13] and The Rome Statute was signed by former President Bill Clinton in 2000[14], but he never submitted it to Congress for ratification. Also, it’s impossible to bring Putin to the Hague for proceedings, and he can easily escape by staying in Russia and avoiding the countries that ratified ICC and it’s not possible for ICC to punish the president.

IS ICC BIASED?

Why is the centre of attention and power exercised over the scope of jurisdiction for the European Region only not focusing on Saudi Arabia or Iran? Where basic Human Rights are violated on a regular basis, and This behaviour is highly hypocritical and reinforces the idea of selective justice. Earlier in 2020, The ICC investigated the USA[15] for allegedly supporting the war crimes in Afghanistan, this led former President Donald Trump to punish ICC prosecutor Fatou Bensouda from The Gambia and Senior prosecutor Phakiso Mochochoko, a diplomat from Lesothoby by imposing sanctions against them.

CONCLUSION

Despite the ICC issuing an arrest warrant, It is unlikely that Putin will appear in The Hague soon due to various factors. One such factor is the limitations of the Court, which relies on voluntary membership. A country consents to allow the ICC to investigate its citizens and territory by becoming a member state. However, countries that do not want the ICC to investigate their potential offences have chosen not to become members. The ICC has limited power to arrest Putin since countries such as India, China, Russia, and the US, considered great powers, have not signed the ICC treaty. Thus, they are not obligated to surrender Putin to the Court even if he visits them. Putin is unlikely to voluntarily surrender himself to The Hague. His arrest would depend on him travelling to and being arrested by one of the 123 member countries of the ICC. To maintain the international Standard, this procedure shouldn’t be followed as if it is done, it will affect the society as a large one may misuse it and interfere in the sovereignty or integrity of the state, and the same won’t be respected in future rather we should focus on maintaining the peace and harmony by trying to organise peace talks.

Author(s) Name: Anshika Sangwan (Symbiosis Law School, Noida)

References:

[1] International Criminal Court, ‘About the Court’ (International Criminal Court) https://www.icc-cpi.int/about/the-court accessed 5 May 2023.

[2] Human Rights Watch. ‘The International Criminal Court: Q&A’. Human Rights Watch (online), 13 September 2004 https://www.hrw.org/legacy/backgrounder/africa/icc0904/2.htm accessed 8 May 2023.

[3]United Nations, Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf accessed 8 May 2023.

[4] United Nations, ‘The Genocide Convention’, United Nations Office on Genocide Prevention and the Responsibility to Protect. https://www.un.org/en/genocideprevention/genocide-convention.shtml accessed 8 May 2023.

[5] Council of Europe, ‘Peace and Violence’ https://www.coe.int/en/web/compass/peace-and-violence accessed 9 May 2023.

[6] International Committee of the Red Cross (ICRC), ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ (International Committee of the Red Cross 2009) https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf accessed 9 May 2023.

[7] Amnesty International, ‘Armed Conflict’ https://www.amnesty.org/en/what-we-do/armed-conflict/ accessed 9 May 2023.

[8] ICC, ‘Rome Statute of the International Criminal Court: A Guide to the Statute’, (International Criminal Court, 2016) https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf accessed 5 May 2023.

[9] House of Lords, ‘Ukraine: Rape as a Weapon of War’ (1 April 2022) https://hansard.parliament.uk/Lords/2022-04-01/debates/7EB11E30-57C4-4C4D-B00A-7B4B1CCC5112/UkraineRapeAsAWeaponOfWar accessed 9 May 2023.

[10] Human Rights Watch, ‘Russia/Ukraine: International Law, Occupation, Armed Conflict, and Human Rights’ (23 February 2022) https://www.hrw.org/news/2022/02/23/russia-ukraine-international-law-occupation-armed-conflict-and-human-rights accessed 9 May 2023.

[11] ICC, ‘Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Other Individuals’, (Press Release, 17 March 2023) https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and accessed 9 May 2023.

[12] UN News, ‘ICC issues arrest warrants for Putin, others over Ukraine war crimes, crimes against humanity’, UN News (17 March 2023) https://news.un.org/en/story/2023/03/1134732 accessed 8 May 2023.

[13] Office of the United Nations High Commissioner for Human Rights, ‘Rome Statute of the International Criminal Court’ (17 July 1998) UN Doc A/CONF.183/9, https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court (accessed 9 May 2023).

[14] US Department of State, ‘President Clinton Signs the Rome Statute for the International Criminal Court’ (Press Release, 31 December 2000) https://1997-2001.state.gov/global/swci/001231_clinton_icc.html accessed 9 May 2023.

[15] Vox, ‘The International Criminal Court wants to investigate Putin for war crimes in Ukraine’, (11 October 2021) https://www.vox.com/23017838/international-criminal-court-icc-putin-war-crimes accessed 9 May 2023.