Vladimir Putin’s trip to South Africa could have been an opportunity to see the Kremlin chief in handcuffs. But the spectacle is cancelled, Moscow has canceled the trip. The International Criminal Court once again works only in the subjunctive: plenty of threats, few consequences.
Vladimir Putin is the president of the largest country in the world by area. Of course, that doesn’t protect you from cabin fever. So maybe the warlord was even looking forward to the trip south to the summit of the Brics States? But nothing comes of the trip to Johannesburg. The meeting with friends (or at least good acquaintances) from Brazil, India, China and South Africa next month will take place without the head of the Kremlin – out of embarrassment, one might think.
The International Criminal Court (ICC) still has an arrest warrant against Putin for alleged war crimes in Ukraine. Because host South Africa recognizes the court in The Hague, the handcuffs should click when Putin arrives. Theoretically. South Africa’s President Cyril Ramaphosa had raised doubts that it would actually come to this in the end – after all, from a Russian perspective, that would be a declaration of war, he claimed.
Either way: So that nobody gets embarrassed, Putin stays at home and participates via webcam, just like in the good old Corona days. Chief diplomat Sergei Lavrov is to represent him on site. Now one might think that this is also a kind of victory for The Hague, or at least a form of satisfaction. Ultimately, Putin’s quasi-forced cancellation makes it clear how isolated and ostracized the supreme commander of the self-proclaimed world power really is.
On the other hand, South Africa’s diplomatic dilemma also shows that the Criminal Court is more appearance than reality; if you don’t want to go to jail, you just have to stay at home, that’s the impression.
Four reasons why the theoretically most powerful criminal court is practically a toothless tiger.
Reason 1: The states that matter are not participating
123 states are committed to the Rome Statute, the basis of the International Criminal Court in The Hague, Netherlands. That sounds like a lot at first, but it only corresponds to around a third of the world’s population. In any case, it is less important who is there, but who is not there.
Above all, states that are themselves often involved in conflicts give The Hague a wide berth. The USA, China, India and Russia, among others, do not recognize the ICC. These are not just any slackers, but the states that make the difference. They are among the potentially most important accusers or defendants. For the nuclear powers it is ultimately a cost-benefit calculation: why should they sign a contract in Beijing or Moscow if they are threatened with investigations at the moment of signing? When in doubt, it’s easier to dismiss than deny.
This reveals perhaps the ICC’s greatest weakness: The Hague can only investigate citizens of a member country and if the alleged crime was committed on the territory of a member country.
Reason 2: Even some members don’t take The Hague seriously
Now there is little point in complaining about unwilling world powers as long as even the ICC members are only half-hearted. On the one hand, a membership can be terminated (unilaterally) at any time if things get serious. In fact, Russia had signed the Rome Statute, but withdrew the signature in 2016 after the Court classified the annexation of Crimea as an occupation.
But even the states that (still) keep their promises interpret their obligations flexibly. When the arrest warrant against Putin was issued in March, ICC President Piotr Hofmanski emphasized that its execution depended on “international cooperation”. This is nothing new. The case of Sudanese President Umar al-Bashir, for whom an arrest warrant was issued for the first time in 2009, shows how embarrassing this can be. Since then, 19 countries have ignored the order from the Netherlands, nine of which have signed the Rome Statute.
Consequently, it always depends on the zeal of the Member States who is brought before the judges in the end. In the end, they are the executive. The Hague itself lacks the means and powers to bring the suspects into the dock itself. ICC judges have issued 40 arrest warrants so far – 16 of the suspected criminals are still at large today.
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Reason 3: A single confusion of jurisdiction
In the legal profession, it is always the fine print that counts. Because no matter how much evidence investigators collect for systematic war crimes, the ICC can only try individuals, never entire states. In order to accuse people, he must in turn be able to accuse them of specific crimes. The chain of command must be fully documented: from the soldier who pulls the trigger, to the captain who gives the order, to the general who moves the troops, to the commander-in-chief who declares war. If that sounds like a lot of work, it’s because it is a lot of work.
Another problem: In contrast to other serious cases such as war crimes or genocide, the court can only sue a head of state for an invasion order if his country also recognizes the ICC. In addition, the state (or at least its victim) must have permitted The Hague in advance to take any action in the event of an aggressive war. An attack on another country, a so-called “crime of aggression”, was only included in the Rome Statute in 2018 – and not even half of the contracting parties have approved the change since then. In a word: complicated.
For this reason, they do not want to try Putin in The Hague for attacking Ukraine, but for deporting thousands of Ukrainian children from occupied territories to Russia. This is considered a war crime, not a crime of aggression, so the legal hurdles are lower.
This week, on the occasion of the 25th anniversary of the court, Federal Foreign Minister Annalena Baerbock called for the court to be able to more easily accuse aggressors of their aggression in the future. In order to accuse a head of state of a war of aggression, it must be sufficient if the victim state recognizes the jurisdiction of the ICC. However, a corresponding reform of the Rome Statute would have to be approved unanimously by the UN Security Council – whose permanent members have a right of veto. A permanent member is Russia.
Reason 4: More Africa tribunal than World Court
So the ICC is nowhere near as powerful as some advocates would like it to be. However, there is criticism not only for how, but also for what the apparatus works. In a way, the ICC also functions as a substitute court. Crimes against humanity should not go unpunished in states that lack a reliable judicial system. That’s the noble theory.
However, it is easier to judge some criminals. A well-known example is the case of Ugandan Dominic Ongwen. As a young boy, he was abducted by a local rebel group and forcibly recruited as a child soldier. In the following years he murdered, tortured and raped and rose to the rank of commander in the terrorist organization. Before the court in The Hague, he denied none of the egregious crimes. But he is not guilty – after all, he was forced to kill from an early age. In 2021, the ICC sentenced him to 25 years in prison.
The Ongwen case raised a valid question: Isn’t it presumptuous to believe that a single “world court” could judge people in whose lives and actions it can only begin to empathize? Some critics see it as colonialist that a judiciary system that is, in case of doubt, western-style, decides about African fates. The Hague has repeatedly investigated non-Africans. The court has dealt with 31 criminal cases so far – each of the 45 accused and ten convicts was an African.
Sources: International Criminal Court; BBC; “Council on Foreign Relations“; “Access Accountability“; “The Conversation“; “profile“; “Amnesty International“; DPA