The topic of this article has been in our minds at Nomad Capitalist for a while now, and it all started when I was watching a Roman Polanski film, “The Ghost Writer” starring Ewan McGregor and Pierce Brosnan, and it goes about a former British Prime Minister who is wanted for his involvement in war crimes and at one point he says something like he could stay in the United States so that the ICC couldn’t get to him.
Some time ago, Andrew wrote an article on non-extradition countries where the world’s fugitives are hiding out. It was done tongue-in-cheek, of course, but we wanted to similarly examine the countries where political leaders can’t be tried at The Hague.
Believe it or not, the three first world powers – United States, Russia and China – aren’t part of the ICC, each for its own particular reasons. These absences have been a very common topic since the creation of this intergovernmental organization twenty years ago, and until this day it’s quite often spoken among politicians, journalists, analysts and diplomats.
Other notable absences are Israel, Qatar, Iraq and Libya; some of them with a very turbulent past (and present) and with a few not-very-good things in common. But let’s start with some basics about the ICC.
What’s the purpose of the ICC? To prosecute anyone responsible for war crimes, genocide, and crimes against humanity. The main scenario in which this court acts is whenever a government with or without a judicial system is unwilling or unable to prosecute criminals in their countries.
Unlike other organizations, like the International Court of Justice, the ICC can prosecute individuals and that’s probably one of the the key points for which some big nations like the United States, China and Russia aren’t a part of this treaty.
The common complains and bad comments about international organizations originate due to their lack of concrete and successful actions and the ICC is no exception. Their first verdict came 10 years after the Rome Statute entered into force. In 2012, Thomas Lubanga, leader of a militia in Congo, was convicted because of his war crimes, mainly for the use of children in his ranks. After this event, the actions of the ICC centered in Africa and currently the organization is being accused by some nations of alleged African bias. Although, it’s important to remember that their involvement in African issues have been referred, in some cases, by the UN or even self-referred by a member state, which was the case with Uganda and the conflicts with the LRA.
How Does the ICC Operate
It’s actually pretty straight forward. First, each ratified country has the right to nominate one candidate to be elected as a judge. The panel of judges will approve the prosecution in case an independent action wants to be made. The United Nations Security Council may also refer an investigation to a prosecutor.
Technically, the ICC has global jurisdiction because even if a nation isn’t a party, it would be compelled to cooperate with the court if the particular case is referred by the UN Security Council. The organization has no police force or enforcement body, so they rely on the cooperation of nations worldwide to support them if they need to make an arrest or a transference of an arrested person.
What’s the common opinion of the international community about the ICC? International cooperation may sound like the right thing to do and the correct course of humanity, but recent events like Brexit or Trump’s victory in the United States show that nationalism is overcoming that fact and even turning it around. The ICC has been called inefficient and biased, and former state members of the court actually decided to stop cooperating with it.
There’s a quote from the ICC’s ex-president Silvia Fernández that it’s worth mentioning: “International criminal justice is a long-term project,” but as much as it sounds logical it’s still a hard pill to swallow for the victims of crimes against humanity.
Countries Not Part of the ICC
Now, with the basics covered, let’s proceed to mention some of the nations that are reluctant to be a part of the ICC or that have withdrawal their signatures and therefore their involvement in the court.
The United States
For some, this is the most surprising absence in the ICC, for others it’s a no-brainer. The ICC can prosecute only individuals and not organizations or governments, and with global jurisdiction they can focus on high-level government officials that aren’t usually a target for an international organization because of the difficulty to prosecute them.
It’s important to remember that during Bill Clinton’s presidency the treaty was sign and later revoked by George W. Bush, who was afraid of the possibility of American soldiers being targeted by the international community.
In 2013, the American Bar Association hosted a congressional briefing on human rights and the main speaker was Stephen Rapp, the former Ambassador for Global Criminal Justice. He pointed out the position of the United States towards intergovernmental organizations, specifically the ICC. Rapp explains that it is a matter of philosophical tradition why his country isn’t a part of it. The main tradition he mentioned is the one where Americans belief that they know how to help others better than the international community. That means, in his mind, that if they ever joined an organization such as the ICC their identity would be threatened because the United States would have to go by rules and laws alien to them.
The International Criminal Court is financed only by its member states, but the US and other non-signatory o non-ratified nations have helped the court by sharing information and intelligence about fugitives, and with logistical support on specific cases. For Stephen Rapp it is a concern that if his nation ever decided to join the ICC, the global community would target them because of their aggressive foreign policy and the court could prosecute American soldiers and other individuals involved in bellicose actions overseas. The actions in Afghanistan during the George W. Bush presidency were in the eye of the ICC’s members as some of them accused the Americans of committing war crimes during that time.
At this briefing, Rapp also mentioned that the United States is concerned about issues outside their borders regarding human rights violations and that they are continuously working to help victims and prevent further acts against humanity.
Being one of the superpowers that supported the ICC almost from its inception in 1998 (they signed it in 2000) and its entry into force later in 2002; in 2016 Putin decided to withdraw their signature. This was more of a symbolic move because Russia never actually ratified the treaty so they simply cooperated with the court while staying out of their jurisdiction.
Two days before the withdrawal, the ICC’s lead prosecutor said in a report that the conflict between Russia and Ukraine developed into an international armed conflict. The occupation of Crimea and Sevastopol became a delicate international matter and the ICC had to speak up.
2016 was a rough year for the International Criminal Court. From September to November, Gambia, South Africa and Burundi also withdrew from the organization, displeased by the fact that 9 out of 10 ongoing investigation at the time were in Africa. Alleged African bias remains until this day as the major complaint of the international community towards the ICC.
The Minister of Foreign Affairs, Sergey Lavrov, explained that “the court did not live up to the hopes associated with it and did not become truly independent,” and called it “one-sided and inefficient” right after Putin announced the withdrawal. At the time, Russia was also accused of war crimes during their military intervention in Syria and this too might had triggered their final decision to no longer be part of the court. That same week, a few days earlier, Putin launched an offensive in Syria and that action resonated in the organization as much as the conflict with Ukraine, making the member states to scrutiny.
With decades of conflict with the Palestines and dozens of accusations of war crimes, it seems a little bit obvious that Israel isn’t a part of the ICC. Nevertheless, they used to support the court at its beginnings but eventually they never ratified the treaty.
The Palestians, members of the court since 2015, have been submitting alleged evidence of war crimes from the Israeli army to the ICC for some years now but there hasn’t been much action from the organization besides the recognition of the problem and the need to address it. In 2016, Israel agreed to a visit of a delegation from the ICC to their country and the occupied territories and currently there’s an ongoing investigation over some officials in the Israeli army. Israel has also accused the Palestines of war crimes but it’s important to remember a few numbers about this conflicts.
It’s important to remember that during the conflicts in Gaza in 2014, Israel, Hamas and other factions killed over 2,200 Palestinians. Israel claims that half of the victims were combatants and accuse Hamas for the use of heavy military infrastructure in populated areas. On the other hand, over 70 Israeli were killed during that time, 66 of them soldiers.
The never-ending issue between Israel and the Palestine has been a diplomatic nightmare in which many nations in and out of the ICC are currently involved, supporting one side or the other.
Another oil-rich country, socially and politically unstable, with an ongoing civil war, and out of the International Criminal Court. Let’s remember that the UN Security Council can refer particular cases to the ICC, and is the situation with Libya. They are compelled to cooperate with the ICC even as non-members of it.
Like in every civil war or major conflict within a nation, it’s essential for an international judicial organization to avoid one-sided justice leaving one or more sides of the conflict unpunished. The ICC has been accused of “taking sides” in the past, but in 2017 they issued an arrest warrant for the Libyan militant Mahmoud Mustafa Busayf al-Werfalli from the Libyan National Army. He was one of the key combatants in 2011, when the civil war began, fighting Gaddafi’s “tyranny.” Accused of committing war crimes, including violent executions, Werfalli becomes the fourth Libyan prosecuted by the ICC since they open their case in the country seven years ago. The other warrants issued by the court included the one for Gaddafi – killed by the rebels – and Gaddafi’s son – still wanted, held by the rebel army.
It’s no surprise that both Russia and the US are involved in the Libyan conflict, both countries with its own particular reasons. Russia is making allies in both sides as an open business strategy while President Trump says that the US simply wants to keep fighting the Islamic State and help the UN bring the conflict to an end providing all the assistance they require. Libya remains a resource-rich country.
This is a particularly interesting situation because China’s concern isn’t about its nationals, military or not, being prosecuted by the ICC, unlike the United States, Israel or Russia.
Being party of the ICC means to cooperate with them in their pursuit of fugitives, to help them build cases on alleged war criminals, to gather evidence, or to provide logistical assistance if needed. China’s foreign relations are sometimes controversial and vexed, such is the case with Bashar al-Assad, the current president of Syria. Bashar has been accused of war crimes, including the use of chemical weapons, but there’s currently not a definitive prove for that.
However, it’s clear that the military force and the level of violence used by him during the ongoing civil war in his country are making the international community feel the urge to act on it and work in a diplomatic solution, and to prosecute anyone who has committed any crimes against humanity during this conflict. Russian support to al-Assad’s government is no surprise, but the less-known sponsor for the Syrian president, since their civil war started, is China.
China’s relations with Syria go back to the 1990’s when they started providing weapons for Bashar’s father and the former president, Hafez al-Assad. Currently, the interest of China in Syria’s situation is purely about money. In an ally country that needs to be rebuilt, with an unsurpassable geographic location, but with an ongoing civil war, the one road to take is to support its government and hope for them to win. Nevertheless, the disregard towards the suffering of millions can’t be overlooked by the international community.
The president Xi Jinping is willing to help the ICC with matters that won’t affect his nation’s own interest directly. This means that they won’t help any international organization to get to al-Assad and instead they will continue to support his cause as the civil war continues, hoping that he will win so they can start making money.
China would never admit this economical interests openly towards the Syria situation, but they do have spoken of other reasons about why they will never by members of the ICC. China has concerns about the openness of the ICC to political influence since any prosecutor can make the decision to start an investigation. They are also against the fact that the court has the power to judge whether a state is able or willing to prosecute its own nationals. And last, China believes that the court’s jurisdiction over what they can prosecute weakens the United Nations Security Council.
There’s a word commonly used in the international community to describe Qatar’s Emir, Tamim Al Thani, and its foreign policy: pragmatic. The Arab country helds good relations with both sides of some of the major international conflicts of the last decade.
Qatar is a rich country with one of the third largest natural gas reserves in the world and oil. They have the highest income rate per-capita in the world and it’s classified by the UN as a country of very high human development. Still, Qatar managed to make enemies out of the United Arab Emirates, Bahrain, Egypt and Saudi Arabia, because of its alleged relations with radical groups and terrorist organizations, like Hamas and ISIS. Its neighbor nations claim that Qatar has been funding them, but what’s even more remarkable is the fact that Qatar helds very good relations with the United States and even Israel, despite of these accusations.
How does all of this relate to the ICC? Many of Qatar’s problems and concerns could start to diminish if they decided to enter the ICC and ratify the Rome Statute. This is an action that’s actually under consideration, especially after the blockade against the Gulf nation began last year. They presented their case to the court against the United Arab Emirates arguing that there are human rights violations of both Qatari and Emirati citizens.
Currently, Qatar’s international relations are stronger than ever, unlike the ones of its enemies next door. If they finally decide to join the ICC, besides being the “the right thing to do,” it would make them the first Arab nation in it and they would serve as an example for the rest of the region. Whether it’s a matter of morals or convenience, Tamir Al Thani seems to be managing things just fine. This wouldn’t erase the past and the mistakes made by the Emir but it would definitely be a huge step forward.
What to Make of the ICC?
While some Nomad Capitalists my disagree, in my opinion the ICC is a great idea and its creation was a major win for the international community. However, it has been a bumpy ride for the organization based in The Hague. There have been some step backs during the way, like the pull outs of some influential nations.
Its legitimacy has been compromised a couple of times, and their effectiveness still needs to be proven; but with over 120 nations supporting the court, one can only hope for the remaining countries to understand that international cooperation is the right course to take.
It’s clear that dictators will do their best to stay out of the ICC while making an effort to delay its growth, but nationalism remains the number one enemy of forward thinking and globalization.