The ICC and Russia, the Philippines and the USA

Last week, the presidents of Russia and the Philippines cast doubt on the International Criminal Court (ICC). Vladimir Putin announced, his country would cease to be an ICC member, but that decision is actually not legally relevant. Rodrigo Duterte said, his country may leave the ICC, but what he can and will do, remains to be seen. In the meantime, the court’s prosecutors have said they are considering investigations against the US armed forces in regard to war crimes in Afghanistan. This may yet prove to be the most important news.

Hans Dembowski

21.11.2016

Though Russia signed up to the ICC, the country never followed up with ratification. It is therefore not a full member of the court. Accordingly, withdrawing the signature is not legally relevant. Nonetheless, it is obvious why Putin might want to discredit the ICC. Russia is involved in Syrian and Ukrainian violence, and the country’s top leader is not interested in any kind of international legal regime that might one day put such crimes on trial. One of the court’s weak points is that leading powers – including the USA and China – are not members, which means they have not given the court jurisdiction over them.

The Philippines is a full member, but like his Russian counterpart, President Duterte is not upholding human rights. He resents foreign criticism of his murderous approach to fighting crime. Human Rights Watch, the international non-governmental organisation, estimated in early November that some 5000 were killed by security forces and armed gangs in what Duterte calls a “war against drugs” since he took office at the end of June.

However, Duterte probably does not have the authority to decide whether the Philippines quit the ICC. Since membership was ratified by the country’s Senate, senators like Leila de Lima argue their chamber must have a say in the matter.

ICC prosecutors have long argued that US troops are probably guilty of torturing captives in Afghanistan in 2003 and 2004. Now they have announced that they may start investigations. Unlike the USA, Afghanistan is an ICC member, and while the ICC has no jurisdiction over the USA per se, it does have jurisdiction over crimes committed in member countries if such crimes are not dealt with by national courts. In mid-November, the prosecutors said a decision was “imminent”.

I cannot assess the legal merits of their argument. If their case is weak, it might be better not to start formal investigations. In purely political terms, however, such investigations would make sense. The ICC’s reputation would benefit tremendously. So far, it is too often seen to only tackle the crimes of people and leaders from Africa (see D+C essay by Darleen Seda). Accordingly, the ICC should not let the USA off the hook if its case is strong.

The idea that Africans in general resent the ICC is wrong, however, as former UN Secretary-General Kofi Annan points out. The plain truth is that the ICC serves a valuable purpose and leaders who are uncomfortable with it are not inspired by ethics, but driven by the fear of eventually being held accountable.