The announcement that Russia was withdrawing its signature from the ICC in response to the publication of a prosecutor’s report condemning it for its actions in Ukraine was big news all over the world – but how significant is the decision?
Russian President Vladimir Putin had signed a decree to the effect that Russia did not intend to become a party of the 1998 Rome Statute of the International Criminal Court. Photo: AP
Headlines around the world on Nov. 16 announced that Russia was withdrawing from the International Criminal Court (ICC). “Russia Cuts Ties With International Criminal Court, Calling It ‘One-Sided,” declared the New York Times headline, while Al Jazeera’s website ran its story under the headline “Russia pulls out from International Criminal Court” and CNN’s banner stated “Russia quits International Criminal Court, Philippines may follow.”
Russia’s announcement — coming on the heels of recent announcements by several African countries that they were withdrawing from the ICC and a threat by President Rodrigo Duterte of the Philippines that his country might withdraw as well — was cast as a major existential threat to the ICC. A deeper look at the Russian action, however, reveals that its significance is not nearly as great as these headlines imply.
The current controversy was set in motion by the release of a statement from the Russian Foreign Ministry announcing that Russian President Vladimir Putin had signed a decree to the effect that Russia did not intend to become a party of the 1998 Rome Statute of the International Criminal Court, the international treaty that establishes and defines the work and powers of the ICC. This move came two days after the ICC prosecutor had issued a report on the status of her ongoing investigations, including those into Russia’s annexation of Crimea and fomenting of conflict in eastern Ukraine in 2014, that was critical of those actions.
While the African countries involved (Gambia, South Africa, Burundi, with perhaps more to come) and the Philippines are actually parties to the International Criminal Court, Russia is not. Though Russia signed the Rome Statute of the International Criminal Court on Sept. 13, 2000 — the first step to becoming a state-party of the ICC — Russia never ratified the treaty to become a full-fledged member.
Consequently, the recent Russian action merely withdraws Russia’s signature from a treaty to which it is now no longer a party. In this respect, Russia has joined Israel, Sudan (before it separated into two states), and the United States as nations that initially signed the Rome Statute but subsequently withdrew their signatures, indicating that they no longer intend to ratify the treaty.
The irony is that while Russia’s announcement will not revoke Russian status as a participant in the ICC (it wasn’t a participant to begin with), it also will not rob the ICC of its jurisdiction over Russian actions in Georgia and Ukraine. So, in a practical, concrete sense, the Russian action was merely a gesture.
The ICC – an overview
In October 1946 — soon after verdicts were returned against the major Nazi war criminals at Nuremberg — an international congress in Paris called for the adoption of an international criminal code defining crimes against humanity and the establishment of an international criminal court to enforce it.
The idea of an international criminal court (ICC), which had first surfaced after World War I, was largely abandoned during the Cold War, but was revived in 1989. Proposals for a permanent ICC gained momentum with the establishment of UN-sponsored ad hoc tribunals for the Former Yugoslavia (1993) and Rwanda (1994). In 1994, a draft statute for the ICC was prepared and presented for consideration to the General Assembly of the United Nations.
Representatives from 160 nations participated in a UN-sponsored conference on the establishment of the ICC in Rome in 1998. At the conclusion of that conference the participating states voted overwhelmingly to approve the Rome Statute of the International Criminal Court, which established the ICC and defined the crimes within the jurisdiction of the ICC.
Under Article 126, the Rome Statute entered into force after 60 nations had ratified it, which occurred on July 1, 2002. To date, 124 nations have signed and ratified the Rome Statute, participating fully in the work of the ICC. Another 31 nations have signed, but not ratified, the Rome Statute.
According to Article 5 of the Rome Statute, the ICC has jurisdiction that is limited to the four “most serious crimes of concern to the international community as a whole.” The list of the crimes includes genocide, crimes against humanity, war crimes, and the acts of aggression.
The ICC, which is located in The Hague, consists of 18 judges, who are elected by the nations that are members of the ICC. In addition, the ICC includes an Office of the Prosecutor, which is an independent and separate organ of the ICC responsible for initiating and conducting investigations and prosecuting alleged violations of the Rome Statute. The Prosecutor is also elected by the member states.
ICC investigations of Russia
One of the major responsibilities of the ICC Office of the Prosecutor is the conduct of preliminary investigations to determine whether a particular situation meets the criteria specified in the Rome Statute to undertake a formal investigation and, potentially, prosecution.
Such preliminary investigations may be commenced based on information provided to the prosecutor by individuals, groups, nations, and intergovernmental or non-governmental organizations. Cases may also be referred to the ICC by nations that are parties to the Rome Statute, the UN Security Council, as well as by other states that have accepted the jurisdiction of the ICC.
On Nov. 14, 2016, the ICC Prosecutor, Fatou Bensouda of Gambia, issued an annual Report on Preliminary Examination Activities. According to this report, in the period from Nov. 1, 2015 through Sept. 30, 2016, the Office of the Prosecutor “received 477 communications relating to [possible prosecutions] of which 356 were manifestly outside the Court's jurisdiction; 28 warranted further analysis; 72 were linked to a situation already under analysis; and 21 were linked to an investigation or prosecution.”
The 2016 report on preliminary investigations included extended discussions of nine different situations. Only one of those — allegations from Ukraine — implicates Russia. While Ukraine is not a member state of the ICC — it signed the Rome Statute in January 2000, but has not ratified it — it was able to formally accept the jurisdiction of the ICC for purposes of this investigation. Accordingly, the ICC has jurisdiction over crimes (as defined in the Rome Statute) committed in Ukraine after Nov. 21, 2013, the effective date of Ukraine’s acceptance of jurisdiction.
The ICC’s preliminary investigation into the situation in Ukraine began on April 25, 2014. As of the November 2016 report by the prosecutor, the following preliminary list of alleged crimes has been compiled. It includes harassment of the Crimean Tatar population; the killing and abduction of at least 10 people in Crimea; the ill-treatment of individuals who had been detained or abducted in Crimea.
The list also contains the detention of opponents of Russian assimilation of Crimea; killings as a result of armed hostilities in Eastern Ukraine; destruction of civilian objects in Eastern Ukraine; the capture, detention, ill-treatment, torture, and disappearance of people in Eastern Ukraine; and, finally, sexual and gender-based crimes in Eastern Ukraine.
The Office of the Prosecutor has created a database of over 800 incidents allegedly occurring in Ukraine since Feb. 20, 2014. The Office of the Prosecutor stated that it will continue to investigate to determine whether the situation in Ukraine falls within the jurisdiction of the ICC.
In addition to the preliminary investigation into the situation in Ukraine, the Office of the Prosecutor has also been conducting an investigation into the situation in Georgia in 2008 to determine if war crimes and crimes against humanity were committed then in and around South Ossetia. The crimes that are the subject of this investigation all occurred within the internationally recognized territory of Georgia, which is a party to the Rome Statute.
This investigation has been underway since August 2008. The preliminary investigation has been completed and in January 2016 a Pre-Trial Chamber of the ICC held that there was a “reasonable basis to believe that crimes within the jurisdiction of the Court” were committed on the territory of Georgia in South Ossetia in 2008. The list of crimes includes murder, deportation of population, persecution, destruction of the property of ethnic Georgians by South Ossetian forces, and intentional attacks on peacekeepers, both by South Ossetian forces against Georgian peacekeepers and by Georgian forces against Russian peacekeepers. This investigation is ongoing.
The Nov. 16 statement by the Russian Foreign Ministry specifically referred to the investigation into the 2008 events in Georgia, suggesting that it was biased in favor of Georgian interests, and concluding that “[w]e can hardly trust the ICC in such a situation.”
Nevertheless, other than as an act of criticism against the ICC, Russia’s recent action regarding the International Criminal Court accomplishes nothing. Russia was not a member of the ICC, so it does not constitute a withdrawal from the Court. Moreover, because the actions being investigated occurred in Ukraine and Georgia — countries that have accepted the jurisdiction of the ICC — the investigations will move ahead (albeit, presumably, with little or no Russian cooperation).
The opinion of the author may not necessarily reflect the position of Russia Direct or its staff.