The War in Ukraine and the Opportunity for the ICC-Ehsan Ahmadi

Ehsan Ahmadi – LLM in International Law, Allameh Tabataba’i University

2023/04/29

The International Criminal Court (ICC) has faced criticism for its handling of several cases from African nations such as Uganda, Kenya, and Sudan, with some scholars and African countries accusing the court of displaying bias and discrimination against the continent. Despite African states being instrumental in establishing the ICC, their current actions of disseminating allegations of racism present a significant challenge. To counter these allegations, the ICC should adopt more robust measures to investigate potential crimes committed by nationals of powerful countries. In this regard, the ongoing situation in Ukraine presents a crucial opportunity for the ICC to refute the claims of racism leveled against it. Whether the ICC can successfully surmount this challenge and dispel the perception of bias will be examined in the subsequent paragraphs, with a particular focus on the situation in Ukraine.

Is the ICC racist?

ICC was founded in 2002, but all cases since its inception have been related to African countries. Although the Office of the Prosecutor (OTP) has received reports of potential misconduct in other regions such as Iraq, Venezuela, and Colombia, it has chosen not to commence investigations into those matters or has placed them under preliminary examination to determine whether to proceed with an investigation. This approach has contributed to the perception among African nations that the court maintains a prejudiced perspective toward them.

Following the indictment and prosecution of Sudanese President Omar Al-Bashir, a conflict between the African Union and the ICC emerged. This conflict was further exacerbated by subsequent situations. In 2013, the African Union's chairman accused the ICC of racial bias and targeting Africans for prosecution, stating that the court's original intention to prevent impunity had devolved into a form of race-hunting. The ICC's handling of the alleged war crimes committed by UK forces in Iraq has also contributed to the perception of the court as biased. Despite receiving numerous submissions from human rights organizations, in December 2020, the ICC closed its preliminary examination of war crimes committed by UK forces in Iraq after six years. This decision is seen as evidence that powerful actors can evade accountability. On the contrary, two months later, the ICC found Dominic Ongwen guilty of Crimes against humanity and war crimes in Uganda. Therefore, why the ICC decided to pursue one case and not the other has reignited claims that the court has an African bias.

It is worth noting that the United States, as a member of the Security Council, can manage to refer situations to the ICC, as was the case with Libya in 2011. However, the former US national security adviser called the court illegitimate when it came to their own conduct in Iraq and Afghanistan, stating that the US would provide no assistance to the ICC and would not join it. These events have undermined the credibility of the ICC and fueled claims of racism.

The War in Ukraine

Ukraine lodged a declaration under Article 12(3) of the Rome statute accepting the jurisdiction of the ICC over alleged crimes committed on its territory after 20 February 2014 and the ICC can exercise jurisdiction over crimes that might have been committed since 20 February 2014.

The conflict between Russia and Ukraine presents an ideal chance for the ICC to showcase its competence. The ICC prosecutor declared on 28th February 2022 that he would request permission to initiate an inquiry into the Ukrainian situation. Additionally, he declared that he would conduct an investigation based on the referral of forty-three member states. The swift and broad response by the ICC represents a significant improvement over previous delays in responding to such crimes. Karim Khan, the ICC's prosecutor, has visited Ukraine and described it as a "crime scene." In response to the situation, the ICC has opened its largest field office to date, established an online portal to gather evidence, and received unprecedented levels of extrabudgetary state contributions and additional personnel to support its investigation (here). The OTP has dispatched a team of 42 investigators, including experts from other countries, to gather evidence in Ukraine (here). This marks a new era in the history of the ICC, which is now engaging in investigations more transparently and openly, working alongside other investigative teams such as the joint investigative team established by Ukraine and other countries that later joined the ICC (here).

The quick and consistent responses shown by the ICC in cases like the Ukraine-Russia conflict are the type of reactions that human rights organizations have long been promoting. This approach allows for the collection and preservation of evidence in a manner that makes it impervious to future tampering or loss. Such responses can effectively dispel the notion that the court is prejudiced against weaker states. Therefore, the court should apply the same approach to other situations where gross human rights violations have occurred, such as in Afghanistan, Palestine, Myanmar, and Yemen. 

Following the closure of the UK case in Iraq by former ICC's prosecutor Fatou Bensouda, criticisms arose about the court's selective approach. This perception of bias was further exacerbated when the current prosecutor, Karim Khan, announced that the investigation into alleged crimes committed by the United States in Afghanistan was being deprioritized due to a lack of progress over 20 years, which led to the US imposing sanctions against the ICC (here). Therefore, to dispel accusations of racism and selectivity, the ICC's OTP should take the opportunity to prosecute a powerful country like Russia. The ongoing ICC investigation into the Ukraine situation is a positive sign that wealthy and powerful states, such as Russia, will not be able to evade justice and will be held accountable in court.

However, the request for more funds for the Ukrainian investigation and financial support from 20 state parties has raised concerns about selective justice. The director of the Palestine Center for Human Rights criticized the lack of similar efforts for Palestine, pointing out that the prosecutor did not seek external financial support, open an evidence-gathering portal, or visit Palestine, which is shocking in comparison to the efforts made in the Ukrainian situation.

The recent issuance of an arrest warrant by the court against President Putin which is the first time the court has issued an arrest warrant against a head of State for crimes against children, is an example of these proceedings. The issuance of arrest warrants for Putin and Lvova-Belova raises questions regarding the ICC's jurisdiction without a Security Council referral or state consent. In particular, the arrest warrant for Putin highlights the issue of immunity ratione personae for a head of State before the Court. The warrants also bring up broader questions of prioritization, selectivity, and the tensions between criminal accountability and other objectives, such as peace settlements. The use of Article 16 of the Rome Statute by the Security Council may be considered, which could prioritize political interests over legal claims. Moreover, the Office of the Prosecutor's interpretation of the "interests of justice" may face challenges due to political developments. (here)

Conclusion

Since its establishment, the ICC has encountered various challenges, particularly concerning the investigation of cases related to African countries, which constitutes approximately 99% of all cases investigated. This has led to accusations of politicization and racism by African countries. The court's credibility was further undermined when it closed the UK case in Iraq and delayed the investigation of the USA case in Afghanistan. It is clear that if the ICC fails to pursue perpetrators from various countries, particularly world powers, its legitimacy will be called into question.

Consequently, the ongoing conflict in Ukraine presents a unique chance for the International Criminal Court to dispel criticisms of selective and race-based prosecution. The ICC's swift and determined investigation into the Ukraine situation can demonstrate that the Court is committed to its mandate of fighting impunity and holding perpetrators accountable, regardless of their nationality or political affiliations. The recent issuance of an arrest warrant by the court against President Putin, despite facing criticism (which requires further discussion), is an example of these proceedings. This could not only help resolve tensions between the Court and African nations but also serves as a warning to the leaders of the world powers that they are not immune from prosecution.