What if the International Criminal Court was sidelined?

At first glance, in matters of international criminal justice, the International Criminal Court (ICC) seems to have taken the upper hand. Barely eight days after the entry of Russian troops into Ukraine, it opened an investigation, with the approval of 42 countries. Six national public prosecutor’s offices now support him in his work. Karim Khan, Prosecutor of the ICC, went himself to Butcha, the martyr city. On site, experts, forensic experts, and French magistrates from the Crimes Against Humanity Unit, as well as around thirty members of the Gendarmerie’s Criminal Research Institute are hard at work with their foreign colleagues. The elements collected (many of them videos and testimonies) are sent to Eurojust, the European Union’s agency for cooperation in criminal matters, which studies them, while waiting for the ICC to finish building its own digital laboratory where she will soon be able to analyze them herself. This is the first time that we have witnessed such mobilization on the ground of an attacked country, while the war continues.

For the ICC, the war in Ukraine is a huge challenge. It’s been 20 years of preparing for it. It was created in 1998 in Rome by 120 countries that drew up its statute, before its inauguration in The Hague in 2002. Its Pre-Trial Chamber examines cases, opens proceedings and issues arrest warrants. When an accused is handed over to him, he is incarcerated in his own prison which is located in Scheveningen in the Netherlands. But if the institution reaches maturity, its balance sheet remains thin. So far, only five people have been convicted of war crimes. The first, Germain Katanga, sentenced to 12 years in prison, is Congolese. The second, Thomas Lubanga, sentenced to 14 years of imprisonment in 2009 in the case of “child soldiers”, is a militia leader in the Great Lakes region. The third is a Malian, Ahmad Al Mahdi, who was sentenced to nine years in prison for destroying sacred monuments in Timbuktu. The fourth, Bosco Ntaganda, another Congolese warlord, was sentenced in 2021 to 30 years in prison. As for the fifth Dominic Ongwen, he is a Ugandan warlord sentenced on 4 February 2021 at 25 years in prison. It’s hard not to notice that few criminals were ultimately convicted and that all of them are African.

Admittedly, to this meager record is added the former Sudanese president Omar el-Bashir, also prosecuted since 2009 for genocide and crimes against humanity. But he was never handed over to the ICC, and he has been able to travel unmolested to 12 countries since his indictment, including some that recognize and support the ICC. In fact, since the Nuremberg trials in 1946, most of the most resounding international condemnations that have been handed down have been, not by the ICC, but by special tribunals created for the occasion. This was the case for the former Yugoslavia. A special court tried more than 100 people including Slobodan Milošević, but also the so-called Butcher of the Balkans, Ratko Mladić, and the ideologue of ethnic cleansing Radovan Karadžić. This was also the case for the special tribunal intended to judge crimes committed in Cambodia by the Khmer Rouge.

This shows that, for the ICC, the Ukrainian stakes are high. However, recently, some high-level international jurists have sought to set it aside in favor of an exceptional jurisdiction. Among them: several nationals of the United States and close allies such as Great Britain or Canada. At their head, we find a Franco-British lawyer, Philippe Sands: “We have among us a prosecutor from The Hague who tells us that if Ukraine, the Netherlands, and three or four other countries want to create a provisional office, he or other prosecutors could in three months indict Vladimir Putin, Sergei Lavrov, the head of defense and intelligence, as well as those who finance this war”, he says. According to him, this special tribunal would have two advantages: it could judge for “crimes of aggression” (in this case, the invasion of Ukraine) which the ICC cannot do because Russia has not ratified its statutes. And he could try Vladimir Putin by default, while the ICC requires the presence of the accused at trial. A very unlikely prospect in the case of the Russian president.

According to Philippe Sands, the idea of ​​this tribunal is gaining ground. “The Council of Europe in Strasbourg has unanimously adopted a resolutionexplains the lawyer, supporting the idea of ​​creating a special tribunal. The European Parliament has done the same. British Foreign Secretary Elizabeth Truss said in an interview that she is open to the idea of ​​a special tribunal. Gradually, people are starting to consider this possibility.” Even the former German Chancellor Angela Merkel recently spoke of a “barbaric aggression” referring to the Russian invasion. But “aggression” is precisely the qualifier used to justify the creation of a special tribunal.

Even within the institution of The Hague, the idea annoys. “A special tribunal to try Russians is ‘inflating'”, confided a judge close to the ICC to the investigation cell of Radio France. Vladimir Putin cannot be judged by two international jurisdictions, the ICC would in fact be out of the game. The prevailing feeling is therefore that some countries are willing to let it judge a few African heads of state or warlords, but not the most powerful leaders on the planet. From there to hypothesize that there is an axis around the United States, seeking to weaken the ICC, there is only one step that some cross. “The development of international justice owes much to the support of the United States”recalls Julian Fernandez, professor and researcher in international law at the University of Paris II. “The various special jurisdictions created since Nuremberg have benefited from American meansexplains the law professor. But in the case of the International Criminal Court, which is the first jurisdiction that would be likely to investigate situations that concern them, it is different. Not only was there no support from them, but there was very outright hostility.”

A hostility that was again manifested recently, when on March 5, 2020, the ICC opened an investigation into possible war crimes and crimes against humanity that could have been committed in Afghanistan by the American army, and on possible acts of torture committed by the CIA (American central intelligence agency). The tone rose until in June 2020, Donald Trump signed an executive order ordering the freezing of the property and assets of the ICC Prosecutor at the time, Fatou Bensouda. In the aftermath, he banned him from having a visa in the United States. The situation only unblocked because a new prosecutor, Karim Khan, took the reins of the ICC in June 2021. He then decided to abandon any idea of ​​​​prosecuting the Americans, explaining that it was better, according to him, focusing on recent crimes committed by the Taliban against women, members of the Hazara ethnic group, or schools, rather than prosecuting old crimes. “I admit I coughed, to say the leastremembers François Roux, lawyer in international criminal law. I wrote to a number of my friends ‘the ICC is dead tonight’. I found it totally abnormal that one of Karim Khan’s first decisions was actually to say ‘I will not pursue American soldiers in Afghanistan.'”

Since then, the tension has subsided, but the United States is still wary of the International Criminal Court. Their representatives participate in the assemblies of the member states of the Rome Statute to keep an eye on it. But Washington is not officially part of it. However, should we see his hand behind the offensive aimed at dismissing the ICC? Washington denies this while saying it is open to examining the possibility of a special tribunal to try crimes committed in Ukraine. Anyway, Stéphanie Maupas, author of the book The Joker of the Powerfuldedicated to the ICC is concerned: “We are going to have both Ukrainian justice which will initiate trials. The International Criminal Court, which opened its investigation on March 2. And if this court for aggression is created, it will make three actors. Which risks create competition that can be counterproductive.”

Go further :

>> Former Yugoslavia – The trials of the International Criminal Court, documentary (in two parts) ARTE

>> War in Ukraine and international law: Philippe Sands is the guest of Matins, France Culture, February 24, 2021

>> An introduction to the International Criminal Court, William A. Schabas, Cambridge University Press

>> Peace and retribution, the secret wars of international politics and justiceFlorence Hartmann, Editions Flammarion

>> Milocevic the diagonal of the madmanFlorence Hartmann, Editions Gallimard

>> The joker of the powerfulStéphanie Maupas, Editions DonQuichotte

>> International criminal justice, Julian Fernandez, CNRS Editions