No immunity

Lawrence Wittner
Thursday, Aug 11, 2022

The issue of alleged Russian war crimes in Ukraine highlights the decades-long reluctance of today’s major military powers to support the International Criminal Court.

In 1998, the International Criminal Court (ICC) was established by an international treaty, the Rome Statute. Coming into force in 2002 and with 123 nations now parties to it, the treaty provides that the ICC, headquartered at the Hague, may investigate and prosecute individuals for war crimes, genocide, crimes against humanity, and the crime of aggression. As a court of last resort, the ICC may only initiate proceedings when a country is unwilling or unable to take such action against its nationals or anyone else on its territory. In addition, although the ICC is authorized to initiate investigations anywhere, it may only try nationals or residents of nations that are parties to the treaty, unless it is authorized to investigate by the nation where the crimes occurred.

The development of a permanent international court dealing with severe violations of human rights has already produced some important results. Thirty-one criminal cases have been brought before the ICC, resulting, thus far, in ten convictions and four acquittals. The first ICC conviction occurred in 2012, when a Congolese warlord was found guilty of using conscripted child soldiers in his nation. In 2020, the ICC began trying a former Islamist militant alleged to have forced hundreds of women into sexual slavery in Mali. This April, the ICC opened the trial of a militia leader charged with 31 counts of war crimes and crimes against humanity committed in Darfur, Sudan. Parliamentarians from around the world have lauded “the ICC’s pivotal role in the prevention of atrocities, the fight against impunity, the support for victims’ rights, and the guarantee of long-lasting justice.”

Despite these advances, the ICC faces some serious problems. Often years after criminal transgressions, it must locate the criminals and people willing to testify in their cases. Furthermore, lacking a police force, it is forced to rely upon national governments, some with a minimal commitment to justice, to capture and deport suspected criminals for trial. Governments also occasionally withdrew from the ICC, when angered, as the Philippines did after its president, Rodrigo Duterte, came under investigation.

The ICC’s most serious problem, however, is that 70 nations, including the world’s major military powers, have refused to become parties to the treaty. The governments of China, India, and Saudi Arabia never signed the Rome Statute. Although the governments of the United States, Russia, and Israel did sign it, they never ratified it. Subsequently, in fact, they withdrew their signatures.

The motive for these holdouts is clear enough. In 2014, Russian President Vladimir Putin ordered the withdrawal of his nation from the process of joining the ICC. This action occurred in response to the ICC ruling that Russia’s seizure of Crimea amounted to an ‘ongoing occupation’. Such a position, said Kremlin spokesman Dmitry Peskov, “contradicts reality” and the Russian foreign ministry dismissed the court as “one-sided and inefficient.” Understandably, governments harboring current and future war criminals would rather not face investigations and possible prosecutions.

Excerpted: ‘Theirs But Not Ours? No War Criminal Should Be Immune From Prosecution’. Courtesy: