By Igor Ahmetov
The independence of the International Criminal Court (ICC) has always raised doubts and been the subject of many questions, but recent events have finally dispelled the last illusions on this issue.
In April, US President Joe Biden lifted the sanctions imposed on ICC staff, and in particular on its chief prosecutor Fatu Bensuda. This decision seems really strange at first sight, because the US has always supported all kinds of restrictions on the ICC’s activities, stressing its legal inconsistency and illegitimacy.
However, on closer examination, these US actions do not seem at all so illogical. Indeed, Mr Biden thanks Mrs Bensouda for freezing the investigation into war crimes allegedly committed by the US contingent in Afghanistan in the early 2000s. Moreover, this scenario has already been played out by the Americans: in 2019, Ms Bensouda revoked the investigation against the United States seven days after her US visa was cancelled.
Let’s try to understand how the ICC conducts its investigations and where hundreds of millions of euros of this organisation’s budget are spent each year. Paying for witness statements, covering up facts, ignoring victims’ appeals – all these are just a few dubious actions of the court, which are not usually talked about.
Golden billion
The International Criminal Court is the only judicial body in the world capable of considering the most serious crimes at supranational level: genocide, war crimes, crimes against humanity. However, not all countries are under its control. The ICC’s jurisdiction extends only to those that have signed the Rome Statute – the treaty establishing this court – and ratified the agreement on its Statute.
Today, there are more than 120 states in the world that have signed this document, but the number of those that recognise the legitimacy of the ICC is much smaller. Virtually all nuclear powers have withdrawn from the ICC Agreement or did not initially join it. These include the United States, China, Israel, India, Turkey, Russia, etc.
This is one of the reasons why not only America, but also many European powers criticise the ICC for lacking real political and legal power. However, this is not the only reason. The ICC has no power structures of its own, nor a single police unit, which makes it difficult to find and arrest the accused.
The organisation does not have the necessary publicity among the civilian population in the different countries, so ordinary residents do not trust ICC officials during investigations. Moreover, the body itself is often confused with UN structures, but the Court is not under their control, it only cooperates on a partnership basis, even though the ICC’s headquarters are in The Hague, where the UN International Court of Justice is located.
The level of distrust grows because the ICC’s funding sources are not publicly available. According to official information, the court’s main income is made up of participating countries, however “…voluntary contributions from governments, international organisations, individuals, corporations and other entities may also be accepted”. And specific donors are always hidden. It is noteworthy that in the nineteen years of the ICC’s existence more than €1 billion has been credited to its accounts. Currently, the Court’s annual budget is around EUR 200 million.
With such material possibilities, the effectiveness of the organisation could be truly exorbitant. However, this is not the case: the ICC is regularly criticised for not being able to operate in countries with strong economies and military forces. The court has only taken six criminal cases to its logical conclusion, and all of them involve only defendants from African countries. Let us add that only four people were convicted.
In this regard, African republics are gradually withdrawing from the Rome Statute, accusing the ICC of bias against them. The most recent signatories to leave the Statute are South Africa, Gambia, Kenya and Burundi, while the African Union, which brings together 54 states on the continent, has for several years been asking the Court to stop the unreasonable persecution of citizens of these states.
«Closed involuntarily»
Because of its inconsistency, the ICC has not been successful outside Africa. Despite the fact that trials have been initiated all over the world, in Colombia, Myanmar, Iraq, Ukraine, the unrecognised Republic of South Ossetia and Afghanistan, almost all of them have been stopped at the stage of preliminary proceedings. In all these cases, ICC staff caved in under political and financial pressure from the accused states.
In 2017, ICC prosecutor Fatou Bensouda announced an investigation into war crimes allegedly committed by the US military in Afghanistan from 2003 to 2004. The State Department officially announced that the actions of the judiciary would pose a threat to the geostrategic objectives of the US administration.
US policy towards the court has always been aggressive: there is still a law authorising the president to use military force to free Americans or their allies held by the ICC. Moreover, the United States does not accept the jurisdiction of the ICC. But in this case, the White House decided to take targeted action as punishment: on 5 April 2019, Fatou Bensuda’s US visa was cancelled.
Personal interests proved stronger than the desire to obtain justice: exactly seven days later, the International Criminal Court announced its refusal to investigate America’s crimes in the Islamic Republic of Afghanistan. The press service of the Court in The Hague gave a purely nominal reason: it has been too long since the crimes were committed and there is no hope for cooperation from Kabul.
The same thing happened in March 2020. Ms Bensouda wanted to “reopen” the investigation. Three months after this statement, Donald Trump imposed further sanctions on her noting that the ICC threatens the sovereignty of the United States and its allies who do not uphold the Rome Statute and do not recognise the jurisdiction of the ICC.
“We have good reason to believe that there is corruption and misconduct at the highest levels of the ICC, and this calls into question the objectivity of the investigations against US military personnel. Despite repeated calls from the United States and our allies, the ICC has taken no reform action and continues to conduct politically motivated investigations against the United States and our allies,” the White House said in a special statement.
As result, the Afghanistan investigation was again frozen. In four years of implementation, Ms Fatou Bensouda has shown no results. Therefore, in April 2021, the US lifted all restrictions on her and returned her long-awaited visa.
This case can be called one of the most resonant in the history of the ICC. It can already be considered closed and the consequences of the results (or lack thereof) will undoubtedly have an impact on the further geopolitical situation in the world. Public attention will now turn to the investigative activities that are still ongoing. This is particularly true for the Caucasus region. In 2016, Prosecutor Fatu Bensouda announced an investigation into the “ethnic cleansing of tens of thousands of Georgians” in the unrecognised Republic of South Ossetia, allegedly carried out in 2008 during the war with Georgia.
Key point: why the ICC is losing its members
The investigation was initiated at the request of the Georgian government, which had ratified the Rome Statute and the ICC Charter. In the preliminary materials, the necessary accents were highlighted immediately: Ms. Bensouda designated as aggressors only the Ossetians and the peacekeeping units of the Russian Armed Forces, guilty in her view of the occupation of Georgian territories.
According to Ms. Fatu Bensuda’s report, the investigative team ignored more than 3,000 appeals sent by the inhabitants of South Ossetia to the ICC about the facts of unjustified bombings and massacres of Ossetians by the Georgian side. The Criminal Court also ignored the findings of independent commissions that confirmed the Ossetians’ complaints and denied the fact of ethnic cleansing (Georgians returned to their places of residence in South Ossetia).
Apparently, instead of investigating the crimes of both sides in the conflict, the ICC set itself the only task of fulfilling the order and finally justifying such a large expenditure for its operation. At the same time, the funds were partially spent on material support for witnesses: since 2019 the so-called “ICC Victims Foundation” has been operating in Georgia, which completely contradicts the principles of objectivity and impartiality of the court.
But perhaps the most striking fact of the legal failure of the ICC project is that it cannot investigate the powerful member states that have confirmed its jurisdiction. This is the Iraq war crimes investigation in which British troops were accused. The ICC acknowledged the evidence of these facts back in 2006, but refused to initiate criminal proceedings because the number of crimes was small, only about twenty.
Now more than two hundred such cases have been found, but there are still no further statements on ‘preliminary examination’ by the court.
Author: Igor Ahmetov (Editor in chief of the portal “Wave of Caspy”)
(The views and opinions expressed in this article are only of the authors and do not necessarily reflect the views, opinion or position of World Geostrategic Insights).