Summary:
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Even though Russia is a nonmember state, the US welcomed the Putin warrant.
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The ICC hasn’t prosecuted a single state official for atrocity crimes in its 20 years of existence because it can’t find them.
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“Three days after the warrant was issued, Khan gave himself a victory lap at a gathering of justice ministers in London that the UK and the Netherlands sponsored to support the ICC’s work in Ukraine.
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Khan never brought up the ICC’s Palestine inquiry in resource requests or referred to the occupied area as a “crime scene,” as Raji Sourani, the director of the Palestinian Center for Human Rights, who supports the Ukrainian investigation, has bemoaned.
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Even yet, there are cautiously optimistic signs of development following Khan’s declaration that he will visit Palestine in 2023 during the ICC Assembly in December 2022. Khan has demonstrated his willingness to overcome obstacles and uphold the law against the leader of one of the most powerful nations in the world, even when that nation is not a party to the ICC.
The most audacious declaration of international justice in history was made when the International Criminal Court issued an arrest warrant for Vladimir Putin to repatriate hundreds of children from Ukraine to Russia. The world, or at least a portion of it, is experiencing a Nuremberg moment due to Russia’s blatant aggression in invading Ukraine and the daily stream of egregious war crimes that follow, pushing the bounds of what is feasible.
With Russia’s full-scale invasion, the ICC prosecutor, shrewd British attorney Karim Khan, seizes the opportunity practically overnight to persuade 43 ICC members—almost all Western nations—to initiate an investigation into the situation in Ukraine. He made four visits to the country, which he dubbed “a crime scene,” launched the largest-ever probe for the ICC, and amassed record-breaking sums in designated donations and seconded personnel, again almost entirely from Western states. Yet, as Russian atrocities increased a year after the invasion, everyone worried about where it would end.
Khan’s historic case against Putin—the first ever brought against the president of a permanent member of the UN Security Council—was a reward for his impatience and provided much-needed comfort to Ukrainian victims. It was also unquestionably calculated to quell growing calls for a new special tribunal on Russia’s crime of aggression—a so-called “leadership crime”—which, according to its similarly Western supporters, was the quickest way to hold Putin directly responsible but which Khan has argued would splinter justice initiatives. Khan quickly ascended to the top thanks to his decision to take the lead on the child transfers, which was also publicly urged on him by President Volodymyr Zelensky. Khan used Putin’s interviews and executive orders to prove his involvement in implementing a state policy of removing Ukrainian children. Khan’s anticipated future charges in Ukraine will likely reflect the more difficult task of connecting Putin via the chain of command to crimes similar to those committed on the battlefield, such as bombing civilian targets, massacres, and torture facilities.
As expected, Russia rejected the ICC’s accusations, claiming that the tribunal lacks jurisdiction over citizens of nonmember countries and launching its fictitious investigation into ICC employees. Dmitry Medvedev, a former president, warned judges to “look closely at the sky” as he threatened to launch nuclear missiles at The Hague.
The arrogant responses from Russia are reminiscent of those from not so long ago in the United States when no American official was even somewhat near to being examined. After failing to secure a guarantee that no national of a nonmember state (i.e., Americans) could ever be punished, even for crimes committed on the territory of a member state, the US was one of only seven nations to vote against the ICC Rome Statute in 1998. The so-called “Hague Invasion Act,” passed by Congress during the administration of George W. Bush, grants the president the authority to “use all means necessary and appropriate to bring about the release” of an American or an ally held by the ICC. America placed sanctions on former prosecutor Fatou Bensouda during the administration of Donald Trump for her hesitant investigations into Palestine and alleged US crimes in Afghanistan. Secretary of State Anthony Blinken stated, “We maintain our longstanding concern to the Court’s efforts to impose jurisdiction over personnel of non-States Parties such as the United States and Israel,” even in 2021 when the Biden administration lifted the sanctions. Such concerns appear to have been temporarily put to rest by the new Nuremberg moment. Even though Russia is a nonmember state, the US welcomed the Putin warrant. Blinken asked ICC participants to detain Putin and his co-accused, Maria Lvova-Belova and deliver them to The Hague. Washington can now support the ICC’s probe into Ukraine due to new bipartisan legislation (though the Pentagon is reportedly baulking at giving the ICC evidence on Russian war crimes).
Nobody anticipates seeing Putin in handcuffs until and unless there is a fundamental regime change in Russia. International justice is a long game. The ICC hasn’t prosecuted a single state official for atrocity crimes in its 20 years of existence because it can’t find them. The non-Western nations, which have been mute about the warrant so far, may not be more eager to detain or isolate Putin than in 2009, when the ICC tried to arrest Sudanese President Omar el-Beshir for the Darfur genocide, despite the overwhelming evidence of Russian atrocities. Beshir snubbed the court by travelling to dozens of nations, including seven ICC states like South Africa, which Putin will visit in August. The invitation to Putin was extended in response to the warrant, and South Africa’s foreign minister criticized “double standards” because “many other countries have been involved in wars, invasions of territory, killing people, and the ICC has called up arresting activists, and none of them.”
Three days after the warrant was issued, Khan gave himself a victory lap at a gathering of justice ministers in London that the UK and the Netherlands sponsored to support the ICC’s work in Ukraine. The optics could not have been worse. Speakers mixed their support for Ukraine (an “ally,” as the Dutch minister noted) with their pledges of new financial support totalling $4.9 million for the ICC’s work. Fewer than a few of the 40 countries in London were from the Global South. Numerous organizations, including Amnesty International, have long expressed concern that the legitimacy of the court “risks being eroded by an increasingly selective approach to justice” and that earmarked contributions allow states to “support only those situations which align with their interests,” making the court “vulnerable to manipulation by powerful states.” In contrast to the well-funded Ukraine investigation, ICC prosecutors had frequently cited limited resources in other cases, such as when Khan “deprioritized” inquiries into the Bush administration’s torture programme in Afghanistan and Bensouda was unable to move forward with her investigations into Nigeria and Ukraine itself in 2020 despite discovering potential crimes against humanity.
When observers discuss the selective nature of the ICC, they frequently bring up Palestine, where Israel is legitimately charged with war crimes such as illegal settlements, persecution, and apartheid. After Palestine requested a probe in 2015, the court took six years to move the case slowly through the required formalities before Bensouda officially launched the investigation in 2021, just months before he left office. Nothing observable has changed since then. Khan never brought up the ICC’s Palestine inquiry in resource requests or referred to the occupied area as a “crime scene,” as Raji Sourani, the director of the Palestinian Center for Human Rights, who supports the Ukrainian investigation, has bemoaned. He remained mute even when Israel closed down NGOs presenting his office with proof. Even yet, there are cautiously optimistic signs of development following Khan’s declaration that he will visit Palestine in 2023 during the ICC Assembly in December 2022.
Khan has demonstrated his willingness to overcome obstacles and uphold the law against the leader of one of the most powerful nations in the world, even when that nation is not a party to the ICC. Whether he is willing to face his primary allies and hold Israeli and other Western-backed officials accountable may be a more complicated matter to answer. Since the Nuremberg tribunal, “victor’s justice,” which does not apply to the sponsors, has always been associated with international justice. Could the Nuremberg moment of today go beyond Nuremberg?
