By Akhand Pratap Rai and Nirbhay Phusate
Introduction
The International Criminal Court (ICC) recently issued arrest warrants against Vladimir Vladimirovich Putin, President of Russian federation and Ms Maria Alekseyevna Lvova-Belova, Commissioner for Children Rights in the Office of President of the Russian Federation. The press release of 17th March 2023 mentioned that Mr Putin and Ms Lvova-Belova “is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute)”.
The press release further mentioned that Mr Putin liable under Article 28(b) of the Rome Statute for “his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility”. The Court again made Mr Putin and Ms Lvova-Belova liable under Article 25(3)(a) of the Rome Statute under individual criminal responsibility “for having committed the acts directly, jointly with others and/or through others”.
The International Criminal Court
The ICC came into existence in the year 2002 and it is governed by Rome Statue which was adopted in July 1998. The Article 11 (1) of the Rome Statute, states that the Court doesn’t have retroactive jurisdiction over crimes that occur before entry into force of Rome Statue on July 1, 2002. Article 5 of the Rome Statue grants the ICC jurisdiction over for main crime i.e. (i) the crime of genocide (ii) crime against humanity (iii) war crime (iv) crime of aggression. The ICC works on the Principle of Complementarity i.e. it prosecutes cases only when states are unwilling or unable to do so genuinely.
The hypocricy of International criminal Justice System
The Russian ‘military action’ against Ukraine was condemned by several western leaders citing UN Charter and International Law. But this is not the first time that powerful states violate the rules governing the use of force under the UN Charter. The world is full of hypocritical leaders who change their stands on a case to case basis on similar grounds.
There is a famous Bollywood movie Deewaar (1975) acted by Shashi Kapoor and Amitabh Bacchan. In a scene of Deewar movie, Shashi Kapoor who acted as a Police Personnel said to Amitabh Bacchan who acted as a criminal that “Doosro ke paap ginane se tumhare apne paap kam nahi ho sakte” [Your own sins cannot be reduced by counting the sins of others]. This dialogue is the benchmark of the western world leaders when you ask them for their obligation under international law and UN charter.
The western world leader are making hue and cry over the Russian ‘military action’ against Ukraine but at the same time they keep silent over their own crime against humanity. They are using International Institutions for their own national interest. Prof B S Chimini in his article International Institutions Today: An Imperial Global State in the Making mentioned that the “leaders and armed personnel of northern states would ever be dragged before the ICC” (pp.13).
The world has witnessed the blatant violation of International Law by western countries and their leaders in every nook and corner of the world. In the name of ‘war on terror’ US and its allies bombarded and destroyed several nations. The world has witnessed the violation of international law directly and indirectly by western countries in Iraq, Afghanistan, Yemen, Libya, Syria and Palestine. Many war crimes have been committed in these nations, resulting in the deaths of thousands, if not millions of people; nonetheless, there have never been any significant appeals for the ICC to bring the offenders to justice. The torture camp at Abu Ghraib Prison in Iraq, Bombing at Kunduz Hospital in Afghanistan, detention camp at Guantanamo Bay Prison , blocking of several UN resolutions in United Nations against Israel, are the best example of human rights violation and international law by United States. The world has witness the role of Belgium and France in Rwanda Genocide lead to death of 80,000 persons. In 2021, Emanuel Macron, the President of France, accepted the role of France in Rwanda Genocide and also President Macron seeks forgiveness over Rwanda Genocide.
In 2018, the former US National Security Advisor John Bolton threatened the ICC and called the Court “illegitimate”. Bolton further said that “We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us”. The US passed a law called American Service Protection Act, 2002 (known as The Hague Invasion Act). This law allows the President of the US to use military force to liberate any American or citizen of a US-allied country being held by the ICC and, as the court resides in The Hague in the Netherlands. Among other things, it prevents the US Government from supporting the ICC, collaborating with its requests, or giving military aid to any state that is a party to the ICC. Ironically, the US President Joe Biden welcomed the ICC issuing of arrest warrant against President Putin.
The way forward
The International Law is a circus and the western countries are the ‘ringmaster’ of the Circus. International institutions such as the United Nations and ICC should not work as a “spoke-person” of western countries. The ‘pick and choose’ of cases in the name of ‘International Justice’ will only harm the reputation and legitimacy of international institutions. The ICC should stands against the western leader for “justice” with the same intent as it stands against President Putin for alleged ‘war crimes’.
Akhand Pratap Rai and Nirbhay Phusate are Doctoral Candidates at the Centre for International Legal Studies, Jawaharlal Nehru University, New Delhi