The perils of selective international justice

THE International Criminal Court’s (ICC) arrest warrant against Russian President Vladimir Putin has given a twist to the Russia-Ukraine war. What’s in store for the President of one of the warring nations? Can he be brought to justice? Or will the ICC remain cocooned in its hallowed precincts, in keeping with the tradition of the world bodies of the past 100 years?

Advertisement

It’s hard to predict and naïve to visualise a quick and effective implementation of the ruling of a Bench which doesn’t have the wherewithal to enforce its verdict. It’s because international criminal justice is selective, creating contradictions, confusion and chaos and giving rise to the belief that it’s a system of, for and by the privileged to take on the underprivileged, deprived and provoked combatants.

Headquartered in The Hague, Netherlands, the ICC is a “court established by a treaty known as the Statute of the International Criminal Court (effective from 2002), with jurisdiction over genocides, crimes against humanity, war crimes and aggression.” Curiously, the ICC’s inception coincided with post-September 11, 2001, developments, when the US, under President George W Bush, launched the ‘global war on terror’. Will it, therefore, be wrong to perceive that the prime aim and objective of the ICC is to target perpetrators of crime operating in regions located far away from the West?

Today, the ICC has field offices in the Central African Republic, Ivory Coast (Cote d’Ivoire), the Democratic Republic of the Congo, Kenya, Mali and Uganda — in the developing world. Powered and defined by the 1998 Rome Statute and its amendments, “while the ICC is independent of the UN, the Rome Statute grants the UN Security Council (UNSC) certain powers of referral and deferral.”

So, who all constitute the Rome Statute? It consists of ‘123 parties’ and the best — or the worst — part thereof is that all Permanent Five (P5) members of the UNSC (France, China, the UK, Russia and the US) are either virtually conspicuous by their absence or happen to be there with a conditional or token presence. Whereas China is totally absent from the statute, Russia and the US (along with Israel and Sudan) have signed but not ratified the Rome Statute. These four nations declared that ‘they no longer intend to become party to the statute.’ The UK and France are signatories to the statute, but ‘with reservation and/or declaration’, thereby reducing the whole institution of the ICC to a sham, which mirrors the past 400 years of arrogance of the exclusive club of western imperial powers.

The situation becomes murkier owing to Ukraine’s stand. Kyiv isn’t a party to the statute, but it has “accepted jurisdiction of the ICC with respect to alleged crimes committed on its territory since November 21, 2013.” Thus, the ICC jurisdiction over Ukraine “extends to action committed by citizens of non-parties to the statute on Ukrainian territory but, since Ukraine itself isn’t a party, not to the crime of aggression without a referral from the UNSC.” Therefore, an extraordinary situation brings Ukraine under the ICC through an indirect route, without having formally accepted the Rome Statute. The ICC jurisdiction over Ukraine, unlike other contracting and consenting parties, comes through the New York-based UNSC, thereby making it one of a kind in the midst of universally accepted, so-called international law. Exception, rather than equality, seems to have found favour with western expediency when international law comes to the fore in mainland Europe.

Since contextually and conceptually, we are in the legal terrain pertaining to crime, one cannot avoid the fundamentals of jurisprudence or the principles on which the law is made. Hence, the alleged crime of Russia, being ongoing and visible, could be referred to for invoking speedy justice. But, does prosecution for murder or manslaughter have a shelf life? Can it fall under the limitation act for being ‘time-barred’? No. That’s the reason, even after being absconding for years, charges against a young murderer can be taken up for imprisonment or capital punishment even in the twilight of his life. In other words, murder/manslaughter can be punished any time as it doesn’t have any time limit for implementation of the judicial verdict.

Coming back to the ICC arrest warrant against Putin, how can it be implemented, by whom, how and when? Can the ICC suo motu act like the West-constituted International Military Tribunal for the Far East (1945), which brought to justice 28 Japanese ‘war criminals’ and put them to the sword? Assuming that the West-backed ICC does succeed in doing so, will the Bench impart justice objectively, impartially and fairly?

As of now, a fair trial looks highly doubtful. Everything today, regrettably, appears to be a cacophony of culpability. ‘One nation, one man, one army’ is cited as the cause of all violence and brutality, mayhem and massacre. In 1945, too, it happened when the jury of the West unanimously found Japan to be a ‘war criminal’. The exception, however, was the sole Indian on the Bench. Justice Radhabinod Pal gave a landmark dissent judgment, absolving the 25 Japanese defendants in the case. “I sincerely regret my inability to concur in the judgment and decision of my learned brothers,” were the words of the Indian jurist.

That history-making verdict of Justice Pal was significant because when the West atom-bombed two Japanese cities, there was no uproar over a war crime, human rights violation and barbarism on the part of the Occident. Though the Hiroshima and Nagasaki bombings are not time-barred, history invariably stood for the crime of the West. Hence, any war on western land is a war against the world and deserves a warrant against the Orient.