Russia Withdraws from the ICC

Christof Lehmann (nsnbc) : On November 16 Russian President Vladimir Putin signed a decree on the Russian Federation’s intention not to become a party to the Rome Statute and by extension the International Criminal Court (ICC). Russia criticizes the ICC for being strongly biased. Earlier this year the African Union announced that it is opting for an African Court. Key African leaders repeatedly stressed that they perceive the ICC as biased and as an obstacle to conflict resolution. The Philippines and others may follow suit.

The Russian Foreign Ministry explained that Russia has been consistent in advocating the prosecution of those responsible for the most serious international crimes. The Ministry noted that Russia (then the USSR) was one of the countries that established the Nuremberg and Tokyo Tribunals and participated in the development of the basic documents on the fight against genocide, crimes against humanity and war crimes as well. These were the reasons why Russia voted for the adoption of the Rome Statute and signed it on September 13, 2000.

The Ministry noted that the ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions. However, the Foreign Ministry also noted that:

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

Click on image to enlarge.

The Russian Foreign Ministry also referred to "the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

The Ministry also stressed that the Russian Federation cannot be indifferent to the Court’s attitude vis-a-vis the situation of August 2008. It noted that the Saakashvili regime’s attack on peaceful Tshinval, the assassination of the Russian peacekeepers resulted in the Court’s accusations against South-Ossetian militia and Russian soldiers.

Moreover, the Ministry pointed out that  the eventual investigation of actions and orders of Georgian officials was left to the discretion of the Georgian justice and remains outside of the focus of the ICC Prosecutor’s office attention. This development speaks for itself.

The Russian Foreign Ministry underpinned that the Russian Federation "Can hardly trust the ICC in such a situation. …The decision of the Russian Federation not to become a party to the Rome Statute (to withdraw its signature from the Statute) entails legal consequences provided for by the Vienna Convention on the Law of Treaties of 1969.

South Africa and the AU

South Africa’s Minister of International Relations and Cooperation, Maite Nkoana-Mashabane, on October 19, signed the Instrument of Withdrawal from the Rome Statute and the ICC. The instrument was signed after a Cabinet decision. Maite Nkoana-Mashabane wrote, among others, that South Africa is committed to fighting impunity and to bringing those who committed international crimes to justice. The document also notes that South Africa, as a founding member of the African Union, is committed to human rights and conflict resolution in African countries.

Instrument of Withdrawal from the ICC, South Africa. Click on the image to enlarge. Click on the image to enlarge.

The South African government also stressed that peace and justice in complex and multi-faceted peace negotiations and sensitive post-conflict situations must be viewed as complementary and not as mutually exclusive.

Moreover, it stressed that South Africa’s role in the resolution of conflicts at times is incompatible with interpretations of the Rome Statute given by the ICC which have been an impediment for conflict resolution. Maite Nkoana-Mashabane wrote that this situation requires of the Republic of South Africa to withdraw from the Rome Statute of the ICC. (vied full document left)

South Africa’s Minister of Justice and Constitutional Development, Michael Masutha, gave additional explanations during a press conference held on October 21. He noted that the Supreme Court of Appeal had held in the Omar al-Bashir case that the Implementation of the Rome Statute of the International Criminal Court Act, was in conflict with the Diplomatic Immunities and Privileges Act.

The "African Court of Justice and Human Rights” envisioned in the Malabo Protocol could begin to function with criminal jurisdiction after it has been ratified by 15 African countries and when details about the financing of the court have been agreed upon. Critics of the protocol stress that article 46 b provides heads of state and senior state officials with immunity, which of course is a problem when top-government officials are politically responsible for some of the most serious crimes. That said, the International Criminal Court has been criticized for its bias against Africans.

Professor Alexander Mezyaev described this bias in his 2013 article entitled "The International Justice System and the Hunt for Africans”. Alexander Mezyaev is the Head of the Chair of the Academy on International Law and Governance in Kazan, Tatarstan, Russia. During the 2015 TMALI Alumni Forum, former South African President Thabo Mbeki described in detail how the ICC has become an impediment to conflict resolution in South Africa. (see video below).

The Philippines next?

Rodrigo Duterte (archives)

The President of the Philippines, Rodrigo Duterte, commented that his administration considers following suit and to withdraw the country from the ICC too. On Thursday, before his departure to the Peruvian capital Lima to attend the Asia-Pacific summit, Duterte commented on primarily western criticism of his administration’s crackdown on drug trafficking. Duterte described that ICC as "useless” following criticism by an ICC prosecutor last month. The prosecutor reportedly said that the ICC may have jurisdiction to prosecute those responsible for the deaths related to the Philippines’ "war on drugs”.

About 2,300 to 4,700 people have reportedly been killed since the onset of the crackdown. Duterte repeatedly stressed that he had not given orders to shoot and kill drug users and traffickers, as reported in some widely disseminated by questionable media. Duterte stressed that all that he had done was to assure police officers that they no longer would face the prospect of long-term suspension without pay during a mandatory investigation after they shot an armed person who resisted arrest.

There have also been attempts by several "rights organizations”, including Human Rights Watch to denounce the transitional justice system that is being put in place as part of the peace negotiations between the Colombian State and the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP). There was a failed but concerted attempt to lobby for delivering "justice” in Colombia via the ICC. Most analysts who have followed the Colombian peace negotiations since 2011 – 2012 agree that the involvement of the ICC would have created insurmountable obstacles. Moreover, "justice” according to ICC standards, would neither include compensation of victims on all sides nor mechanism for national reconciliation.

ICC Collapse has been in the Air for More than a Year or Two

The possible collapse of the Rome Statute and the ICC and countries, especially African and non-NATO countries withdrawal from the system has been "in the air” for years. In 2009 Prof. Dr. Dr. h.c. Hans Köchler, a Life Fellow at the International Academy for Philosophy, Professor of Philosophy at the University of Innsbruck, Austria, and President of the International Progress Organization, held a detailed lecture on the Rome Statute and the ICC entitled "Global Justice or Global Revenge – The ICC and the Politicization of International Criminal Justice.

The lecture has been delivered at the World Conference for International Justice held under the motto "United against the politicization of justice” organized by the General Sudanese Students Union in Khartoum, Sudan, 6 April 2009. (published here).

CH/L – nsnbc 17.11.2016

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