The ICC’s Legal Acrobatics: from Darfur to Donbass

“Against those who substitute moral certainty for knowledge, and who feel virtuous even when acting on the basis of total ignorance.” (M. Mamdani, Saviors and Survivors: Darfur, Politics, and the Global War on Terror, 2009)

The recent legal complications between Russia and the ICC, which have resulted in mutual arrest warrants, are eerily reminiscent of the ICC’s case against Sudanese President Omar el Bashir in 2008, which evokes similar legal complications: such that neither El Bashir nor President Putin are nationals of states party to the Rome Statute nor are the crimes they were accused of committing on the territory of a state party to the Rome Statute. The ICC, according to its founding treaty: the Rome Statute, doesn’t have jurisdiction for indicting either person, yet the ICC, which is principally a technocratic apolitical international organization, acted as a front line for the US in isolating its enemies.

“The decisions of the ICC have no significance for our country, including from a legal point of view,” Russian Foreign Ministry spokeswoman Maria Zakharova said after the International Criminal Court’s Pre-Trial Chamber II issued an arrest warrant for President Putin and Presidential Commissioner for Children’s Rights Maria Lvova-Belova.

In “The International Criminal Court’s Case Against The President of Sudan: A Critical Look” (2009), Mahmood Mamdani argues that the ICC was politicized to suit the interests of Western actors by filing an arrest warrant against Omar el Bashir, such that the indictment of Omar el Bashir was built on a sketchy legal basis.

In 2019, Omar El Bashir was eventually ousted in a military coup ending his three-decade-long streak of iron-grip rule over Sudan. He was then sentenced to two years in prison for charges of corruption by the newly formed government which refused to turn him in to the ICC. The case of El Bashir was swiftly contained with minimal implications to geopolitics in the Middle East to the US interests: One ‘pariah‘ regime accused of bloodshed within Sudan was replaced by an internationally recognized regime involved in bloodshed in Yemen.

Despite the swift containment of El Bashir, the significance of Mamdani’s argument holds. If anything,  Mamdani’s argument stands as even more relevant when looking at Putin’s case. The indictment of Putin is incomparably consequential compared to the indictment of El Bashir.

The International Criminal Court

The mandate of the ICC is expressed by the Rome Statute of 1998 :

• Only individuals are liable for indictment. As opposed to its sister organization, the International Court of Justice, whose mandate presumes a legal personality of states, the ICC can only indict “natural persons” as expressed in article 25. The ICC cannot prosecute states only individuals.
• The jurisdiction of the court, as expressed by Article 5, is restricted to the “most serious crimes of concern for the international community” i.e. mass atrocity crimes which expressly include: Genocide (article 6), Crimes against Humanity (article 7), War Crimes (article 8), Crime of Aggression (article 9).
• As a precondition for prosecuting an individual accused of committing a mass atrocity, the court can have no jurisdiction over the case unless the alleged criminal is either a national of a state party to the Rome Statute or they had committed the alleged mass atrocity on the territory of a state which is a party to the Rome Statute, as expressed by article 12.
• Typically, cases studied by the ICC are not autonomously-initiated, rather they are administered following referrals: either by a state party to the Rome Statue or more recently through a referral by the Security Council (as was the case with Omar el Bashir) or following an investigation conducted by the Prosecutor after getting authorization from the Pre-Trial chamber (as was the case with President Putin).

Revisiting the Case of Omar El Bashir in the Geopolitical Context of the War on Terror

The indictment of Omar El Bashir by the ICC was a landmark event in the practice of international law and international organizations. It set precedence by issuing an arrest warrant for not just any “natural person” but a president of a sovereign state. Furthermore, it manifested a very blatant case of the politicization of justice by coopting an international court for furthering geopolitical interests.

The prosecution of Omar El Bashir had happened in the context of the ferocious so-called “War on Terror” waged by George Bush on the nations of West Asia. As revealed by General Wesley Clark, Sudan was fourth on the list of the Seven-Country grand strategy devised by the US following the terrorist attacks of 9/11. After the US invasion of Afghanistan in 2001, the US invasion of Iraq in 2003, and the failed Israeli invasion of Lebanon in 2006, Bush was in the last year of his second term and he was still 5 countries short of fulfilling the grand strategy.

In addition to Western diplomats with actual interests at stake, many civil society groups were very excited about the indictment of El Bashir. Most notorious were the groups that fell under the “Save Darfur” campaign. The campaign has since been irrelevant, but it’s very much comparable to other pertinent campaigns promoting “democracy” and “human rights” like Free Iran or SOS Cuba.

Mamdani extensively tackles the drives and dynamics of the human-rights-activism phenomena of the “Save Darfur” campaign in his book “Saviors and Survivors: Darfur, Politics, and the War on Terror” which was published in the same year as his article critiquing the ICC. Despite having been largely dismissed by many of the “Save Darfur” human rights activists as an apologia for El Bashir’s crimes, Mamdani doesn’t argue for el Bashir’s innocence; Mamdani’s article “The International Criminal Court’s Case Against The President of Sudan: A Critical Look” (2009) essentially serves as an ideographic critique of the ICC through the case study of the former Sudanese President.

Framed in the literature on the ontology of international organizations, Mamdani argues that the ICC serves more as a tool rather than an actor in international affairs (I. Hurd, International Organizations: Politics, Law, Practice, Ch2, 2014). The ICC which is typically presented to be uniquely technocratic and apolitical in contrast to other international organizations, actively partook in a geopolitical strategy to take down the enemies of the US.

Mamdani’s Argument on the Politicization of the ICC

In “The International Criminal Court’s Case Against The President of Sudan: A Critical Look” (2009) Mamdani argues that the politicization of the indictment of Omar El Bashir was evidenced by (1) the historical revisionism in approaching the crisis in Darfur (2) the skimpy investigation and representation of evidence, but most importantly (3) the legal process for the ICC’s indictment of El Bashir.

El-Bashir was the first president to be indicted by the ICC. Despite being legally consistent with the Rome Statute, the indictment was a novel event in the history of the ICC. Despite standing as the personification of the Sudanese state, El-Bashir was ultimately a “natural person” liable for prosecution by the ICC in theory. However, his indictment was a landmark event in the practice of international law: partly because it was unprecedented but also because it was a clear case of mobilizing the ICC for geopolitical ends.

Most evidently, the politicization of the case manifested in the double standards exhibited by the ICC; Mamdani points out that El Bashir was prosecuted by the ICC for manning a violent counter-insurgency campaign in Sudan (which was classified as genocide in reference to article 6 of the Rome Statute), less than a decade from the cross-Atlantic invasions which Bush waged against Afghanistan and Iraq (which classify as Crimes Against Humanity per article 7, War Crimes per article 8, and Crimes of Aggression per article 9 of the Rome Statute) without being subject to indictment by the ICC.

Read more: The Darfur the West Isn’t Recognizing as It Moralizes About the Region 

Furthermore, El-Bashir was indicted for the crime of genocide, which is specified under article 6 of the Rome Statute as a mass atrocity crime that falls under the jurisdiction of the ICC. In his article, Mandami problematizes the arbitrariness of the prospect of genocide. The distinction between a legitimate counter-insurgency campaign and an international-community-shaking mass atrocity such as genocide is manipulated by political semantics. There is no clear distinction between the two. Objectively, one event can be categorized as either. There is no death-count threshold that separates the two in international law. A counter-insurgency can result in more deaths than genocide. The distinction, as stipulated by the definition of genocide adopted in article 6 of the Rome Statute, is conditioned upon the “intentions” of the perpetrator.

Rome Statute

 

Article 6 For the purpose of this Statute, “genocide” means any act committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group

The vagueness of some prospects of the Rome Statute, its susceptibility to the politics of semantic manipulation, and the ICC’s potential for infringing on the sovereignty of governments has led many States to refrain from ratifying the statute: Sudan being one of them in addition to Russia, the US, Ukraine, and many others. The ICC, whose jurisdiction is fundamentally preconditioned on the ratification of the Rome Statute, has acted despite this under the moral pretext of responsibility to protect human lives which suspiciously coincided with the geopolitical interests of the US: by targeting those who are hostile to the US and sparing the US and their allies. For example, El Bashir was indicted for cracking down on insurgents in Sudan, but King Mohammad of Morocco wasn’t for the violent suppression of the Sahrawi people nor was Crown Prince Mohammad Bin Salman for slaughtering and starving Yemenis nor was Yehud Olmert for attempting to invade Lebanon. The ICC, after all, is mobilized according to what is of “concern” to the “international community”.

Rome Statute

 

Article 5 The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.

Briefly, Mamdani’s argument can be formalized as follows:

• (P1) Sudan didn’t ratify the Rome Statute
• (P2) thus, the ICC doesn’t have jurisdiction over the alleged crimes committed by El Bashir in Darfur
• (P3) the ICC’s arrest warrant is devoid of a legal basis (or at least is founded on a shaky legal basis)
• (C) Therefore, acknowledging the geopolitical context, the indictment of El Bashir is a case of politicized justice

Counter-argument to Mamdani

Many have refuted Mamdani’s argument for the illegal nature of the ICC’s indictment by referring to Chapter VII of the UN charter. Sudan isn’t party to the Rome Statute but they are party to the United Nations. The conflict in Darfur was referred by the Security Council to the International Criminal Court through Resolution 1593 of the SC as per article 13 (b) of the Rome Statute. The ICC in itself might not have jurisdiction over Sudan, but the Security Council does. The Council also has the liberty to decide on whatever measure it sees fit to deal with a given situation. The SC which had jurisdiction over Darfur granted the ICC jurisdiction by extension through the referral expressed in Resolution 1593.

UN Charter: Chapter VII

 

Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken.

 

Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.

Despite refuting the part about legality, Mamdani’s critique of the ICC, as being subject to politicization for furthering western geopolitical interests, stands. The reason why similar security council resolutions for referral to the ICC have not been posited against Bush for committing comparable and even worse “mass atrocities” in Afghanistan and Iraq or Obama for crimes in Libya and Syria or Olmert for crimes in Lebanon and Palestine is political. The ICC despite being presented as technocratic and apolitical is molded by the power relations of international politics.

The West’s Game of Legal Acrobatics with Russia

The ICC’s jurisdiction encompasses states which are party to the Rome Statute

Neither Russia nor Ukraine are parties to the Rome Statute. Russia and Ukraine signed the statute in 2000 but neither ratified it (they didn’t pass it in their respective national parliaments). Russia even withdrew its signature from the statute in 2016 after the legal fiasco of the ICC with Omar Al Bashir.

Thus, neither of the alleged “criminals” (Putin nor Belova) are nationals of a state which is a party to the Rome Statute nor are the alleged “crimes” done on the territory of a state (Russia nor Ukraine) which is a party to the Rome Statute.

Legally, the ICC doesn’t have jurisdiction over any potential crime that might happen during the military conflict in Ukraine. Unless the alleged criminal is a national of a state which has ratified the statute. If the ICC finds the war in Ukraine a hotspot for “serious crimes of concern to the international community,” the only individuals they have jurisdiction for prosecuting would be Polish, German, British, or  French  “natural persons” involved in alleged crimes (or any other individual who is a national of a state which has ratified the Rome Statute).

Referral to the ICC was done by the ICC Prosecutor

Furthermore, referral to the ICC was done by the Prosecutor’s investigation, as per article 13 (c) of the Rome statute which wasn’t ratified by Russia or Ukraine. Consequently, the Pre-Trial Chamber II issued an arrest warrant for President Putin and Commissioner Maria Belova.

Contrary to the case of El Bashir, the ICC’s arrest warrant wasn’t legitimized through extending jurisdiction from a security council resolution. The activation of the ICC was solely based on the Rome Statute. Extending legitimacy for the Rome Statute from the UN charter by a security council resolution as was the case with El Bashir can’t possibly happen such that Russia holds a permanent seat in the Security Council and enjoys veto power against any resolution.

The pretext for the arrest warrants is the transfer of children from a war zone

The ICC’s lack of jurisdiction isn’t the only sketchy prospect about the ICC’s case against Putin and Belova. The alleged crime that the two Russian officials were accused of is very peculiar: the forcible displacement of Ukrainian children from Donbass to the Russian Federation, as per article 6(e) of the Rome Statute).

The ICC’s choice of allegation is very comical in light of the coverage of the war in Ukraine by western media; Putin was accused of unjustifiably invading Ukraine, killing civilians, torture, and a plethora of other crimes which were popularly broadcasted by western media with the onset of the Russian special military operation.

The Rome Statute abounds with specific crimes which correspond to the narratives of western media about Putin, yet the ICC Prosecutor opted for the most ambiguous to indict Putin for: “Genocide” by the forcible transfer of children.

Rome Statute

 

Article 6 for the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

 

(e)  Forcibly transferring children of the group to another group.

 

Even if were to assume that the ICC has jurisdiction over the situation in Ukraine, the alleged crime for which Putin and Belova are being indicted can be problematized on different levels. The transfer of children from Ukraine to Russia doesn’t imply genocide; as expressed by the Statute genocide is defined according to the intentions of the perpetrator.

Putin never expressed intentions to “destroy, in whole or in part” the Ukranian national group. There was no explicit intention of genocide. Furthermore, there are no implicit intentions of genocide that can be stipulated from Putin’s actions. The military operation is in line with its declared objectives of deterring NATO expansion and protecting the Donbass population neither of which can be identified as “genocide”. It’s not clear that the children transferred to the Russian Federation were “forcibly” transferred nor is it clear that the children who were transferred are Ukrainian and not Russian. The population residing in the Ukrainian territories of Donbass are predominantly Russians who have been systematically prosecuted by the Kiev regime since the 2014 coup.

The pretext for Putin’s arrest is very comical when acknowledging the geopolitics and the legal semantics underlying the ICC’s indictment. One can argue that many school bus drivers are worse genocidal criminals than Putin.

The US wants the ICC to indict Putin but doesn’t want to provide them with the necessary evidence

More comical is the US policy towards the indictment. The confusion of the US bureaucracy before and after the ICC’s arrest warrant against Putin is representative of US arrogance: wanting to have their cake and eat it too. The Biden administration, in the final days of its first and seemingly last term, has grown restless to score a swift geopolitical victory by diplomatically isolating Putin: a restlessness that is comparable to that of Bush’s in 2009.

The White House’s excitement to cooperate with the ICC to isolate Putin was quickly met with concern from other bureaucratic institutions in the US which anticipated a potential backfire from fraternizing with the ICC.

Back in early March, the New York Times reported that the US Department of Defense opposes Biden’s initiative to hand over evidence that allegedly incriminates Russia for committing ‘war crimes’ in Ukraine to the ICC. The report claimed top-ranking officials in the US military are attempting to stifle the ICC-US cooperation through the provision of evidence in fear of setting a dangerous precedent that might expose the US to similar measures.

The United States has long avoided the ICC out of concern that the tribunal would go after US officials accused of war crimes. However, back in December, Congress modified the legal restrictions on cooperating with the Court strictly to allow sharing of information on Ukraine in an effort to prosecute Russian individuals.

Read more: WH to lose moral high grounds in Kiev over Pentagon-ICC complications

The evidence for the arrest warrant is still ambiguous. The Prosecution conducted an investigation and presented it to the Pre-Trial chamber which deemed it reasonable enough to proceed with court proceedings.

The ICC’s arrest warrant expressed that “there are reasonable grounds to believe that Mr. Putin bears individual criminal responsibility” however it’s still not clear whether the evidence on which the Prosecution based their investigation was acquired from the White House. It’s also still not clear what type of evidence it was or if it was sufficient evidence for indicting Putin for genocide. What’s clear however is how international law can be stretched and spun in favor of some against others.

In brief, regardless of the lack of jurisdiction, the ICC’s case against Putin is still not clearly justified in terms of evidence. The only detectable basis for the ICC’s arrest warrant is the advertised virtuous indignation and moral high grounds of the West.

Perhaps President Biden’s comment on the situation best captures the oxymoronic confusion and legal acrobatics underlying the ICC’s arrest warrant against Putin. “I think it’s justified, but the question is, it’s not recognized internationally by us, either. But I think it makes a very strong point. Putin clearly committed war crimes”