Mere Ink on Paper or More? – Decisions of a Powerless ICC Against the Mighty & Powerful

On twenty first November 2024, the ICC (Worldwide Legal Courtroom) issued warrants of arrest in opposition to, inter alia, the Prime Minister of Israel, Benjamin Netanyahu. Notably, the ICC has additionally issued an arrest warrant in opposition to the Russian President, Vladimir Putin within the final yr.

This weblog publish examines the arguments that may be made in opposition to such selections of the ICC. Subsequently, it means that the perceived harms are offset by the multitude of oblique advantages that accrue from these selections. It additionally argues that such selections of the Courtroom – no matter their enforcement – play an necessary function in fulfilling the aims for which the Courtroom was established.

Hanging the Big Might Shatter the Sword!

To hope that both Netanyahu or Putin will probably be arrested and offered earlier than the Courtroom in Hague within the close to future, can be however sheer optimism. Due to this fact, it might be argued that passing of orders in such circumstances, the place compliance of the host nation is just not anticipated nor can cooperation be coercively ensured by the UNSC (United Nations Safety Council), is just not solely futile however dangerous to the functioning of the Courtroom.

It’s because firstly, frequent orders sans cooperation could hurt public notion of the effectiveness of the Courtroom. When an indicted particular person visits a State Get together to the Statute which is legally sure to extradite him however refrains from doing so – as a result of sturdy political concerns – it’s finally the Courtroom’s credibility and authority that stand compromised. What distinguishes an arrest warrant of the Courtroom from a press launch of a human rights group, is that the previous ought to be perceived as necessary, and will instill worry of penalties.

Secondly, investigations on the ICC are closely useful resource consuming. The whole bills of the ICC within the first decade reached 750 million Euros, and the common value per indictment on the ICC has been 60 million USD. Therefore, investing huge sources into an investigation that may not result in the presence of the accused earlier than the courtroom – not to mention his trial and conviction – could also be wasteful, as these scarce sources could also be employed elsewhere with higher possibilities of success in prosecution.

Thirdly, worldwide felony tribunals want highly effective patrons to function efficiently. The ICTY, for example, acquired the continual help of the EU, which was important for the enforcement of its convictions and selections. Due to this fact, investigating conditions in nations reminiscent of Israel and Russia – that are politically and economically dominant on the worldwide stage – will considerably undercut the capability of the Courtroom to function anyplace. Therefore, in pursuit of an ethical perfect of equal therapy, we’d forego the chance to prosecute not less than a few of the criminals. An instance might be the threats by American lawmakers not solely of non-cooperation, but in addition of personally concentrating on the Prosecutor and the associates of the ICC if it exercised jurisdiction within the scenario in Palestine. The USA, being a everlasting member of the USA, might considerably undercut the operations of the ICC, by vetoing any try to refer a matter to the Courtroom by the UNSC, below Artwork. 13(b) of the Rome Statute. Notably, in circumstances the place the member states fail of their obligation of cooperation to the Courtroom, the Courtroom has referred the matter to the UNSC, which acts as an extra deterrent in opposition to non-cooperation. Due to this fact, to have a foe amongst the everlasting members of the UNSC can scale back the cooperation it receives from the Council.

Why prosecute the highly effective then?

Whereas these considerations will not be with out advantage, I argue that these orders of the Courtroom have many benefits that offset these harms.

Firstly, the ICC has now gained legitimacy within the international opinion. The truth that the UNSC has referred to it on a couple of event strengthens its international recognition. This rising recognition makes an order of the Courtroom perceived as neutral and dependable; such an order might then be used for efficient and justified condemnation and international castigation. Understanding this with an instance, the arrest warrant in opposition to Putin was notably celebrated by the Western Block because it might set floor for international condemnation for the Russian atrocities – being backed by an order of a acknowledged Courtroom, with its notions of objectivity that transcend political rhetoric of the West condemning Russia for mere political concerns. Due to this fact, orders of the ICC in such issues can function a compass for nations which have been neither inclined in favour nor in opposition to a scenario earlier.

Secondly, such an order by the ICC can also play a major function in home politics, notably in democracies the place free and truthful elections are periodically performed. Whereas the opposition leaders in Russia could not be capable to utilise the warrant of their marketing campaign in opposition to Putin – contemplating the democratic deficit –, the warrants in opposition to Netanyahu, if issued, could play some function in shaping the general public opinion within the USA for its complicity with a person indicted by the ICC.

Thirdly, an investigation by the Courtroom into such incidents acts as an acknowledgement of the struggling that the victims are going through. That is clear from the celebration of the ICC arrest warrant in opposition to Putin by Ukraine. The circumstances earlier than the ICJ (Worldwide Courtroom of Justice) concerning potential genocide and the case of occupation of Palestinian territories by Israel is an instance the place a recognition of the fallacious to the Palestinian folks was achieved, even when such recognition does to not result in any direct and fast materials change within the floor actuality. Such recognition has an intrinsic worth, which is unbiased of the enforcement of the order or compliance with it by the erring particular person or state. The acknowledgement of struggling of a neighborhood serves an necessary function in post-conflict societies and guaranteeing transitional justice as argued by Ivor Sokolić and others. 

Fourthly, such orders play a historic function in setting the data straight for the generations to come back, and authentically documenting historic occasions of significance. The paperwork produced within the Courtroom turn out to be a part of the general public file, making it a historic account of occasions that can’t be simply dismissed. It locations the indicted particular person in an unenvious record of worldwide criminals. Had the Armenian genocide been investigated and documented by the same worldwide courtroom, then no matter whether or not the Turkish commanders would have been tried or not, it will have served as an genuine file of the occasions, archived and preserved with the Prosecutorial Workplace, which might have been referred to sooner or later.

Lastly, however most significantly, the ICC was established to exchange the necessity for advert hoc Tribunals in each dispute just like the IMT of Nuremberg, and the Tokyo Courtroom. These Tribunals confronted criticism for representing victor’s justice, the place a tribunal established by the victors would strive the now defeated and powerless accused. A serious goal of creating the ICC as a everlasting courtroom, was to make sure that it will strive people for his or her crimes no matter their place and affect.

The allegations of African bias in opposition to the ICC have threatened to discredit this envisioned objectivity of the Courtroom. Due to this fact, conducting investigations even into the highly effective nations could take away the tag of subjective prosecution and show that the Courtroom has succeeded within the objective of its institution, by treating the mighty and the meek alike.

Past Compliance: The Lasting Affect of the ICC’s Choices

Worldwide regulation is basically completely different from home regulation, as coercive compliance and enforcement are not often tried, and far is left to the state events that are thought-about sovereign. Therefore, to argue that any resolution of the ICC that can’t be enforced is nugatory, can be a misunderstanding of the worldwide authorized system.

The choice of the Prosecutor to research circumstances the place it may hardly get a conviction or trial is just not a misadventure, reasonably a calculated resolution primarily based on a practical understanding of a number of advantages even sans enforcement of the warrant. The truth that Israel has chosen to submit an official problem to the applying for warrants of arrest proves that these selections have their affect and depart their ripples within the international diplomacy.

Nonetheless, in selecting circumstances that are politically difficult, the OTP might want to be sure that the proof offered is sufficiently sturdy to fight any political strain, in addition to to develop a communications and public relations technique to fight criticism.

Hamza Jawed Khan is a third-year scholar of regulation at NALSAR Hyderabad, with a eager curiosity in Constitutional Legislation and Public Worldwide Legislation.

Image Credit score: Human Rights Watch