Will the ICC Be Able to Treat Russia Like Africa?

             The international community has been riveted by the horrifying daily reports during Russia’s unprovoked invasion of Ukraine, never more so than after the withdrawal of Russian forces from the area around the Ukrainian capital of Kyiv, which revealed numerous cases of torture, murder, rape and other atrocities.  Seeing dead men, women and children – not combatants – lying in the street has outraged world leaders.

            Ukrainian President Volodymyr Zelenskyy has accused Russia of war crimes and called upon the international community to take action to hold Russian President Vladimir Putin accountable, presumably through the International Criminal Court (ICC), but who thinks such a referral could be made and carried out as it has been so often for African perpetrators of war crimes?

            The ICC was established through the Rome Statute on 17 July1998 (and entered into force on 1 July 2002) to punish major criminals for four classes of violations of international law: genocide (the specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group or forcibly transferring children of the group to another group), crimes against humanity (serious violations committed as part of a large-scale attack against any civilian population), war crimes (grave breaches of the Geneva Convention in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments or buildings dedicated to religion, education, art, science or charitable purposes) and crimes of aggression (the use of armed force by a State against the sovereignty, integrity or independence of another State).

            Certainly, what is being done by Russian armed forces in Ukraine violate at least the last three of these classes of violations of international law.  However, anyone who has been involved in a legal case or even seen such cases on television or in films must realize that it’s not enough to know that crimes have occurred, prosecutors must prove intent and involvement of those charged.  As police and prosecutors have found over the years, it is difficult to prove that leaders of organizations believed to engage in criminal behavior gave specific, provable orders to commit crimes.  It is much easier to indict, try and convict those who actually perpetrated the crimes in question.

That is why it took so much determination to convict Liberia’s Charles Taylor for the horrendous crimes he was responsible for in Sierra Leone and his own country.  Prosecutors and investigators had to find credible witnesses to directly tie him to crimes under the jurisdiction of the ICC.  That eventually was done, but it took great investigative and prosecutorial efforts to do so.

The ICC was established to exert jurisdiction in two instances: if the crimes were committed by a state party national, or in the territory of a state party, or in a state that has accepted the jurisdiction of the court; or if the crimes were referred to the ICC prosecutor by the United Nations Security Council (UNSC) pursuant to a resolution adopted under chapter VII of the UN charter.  As of 17 July 2018, a situation in which an act of aggression would appear to have occurred could be referred to the court by the UNSC, acting under Chapter VII of the United Nations Charter, irrespective as to whether it involves state parties or non-state parties.

Neither Russia nor Ukraine are state parties to the Rome Statute, but that didn’t prevent referrals for individuals in Sudan or Libya.  Then again, neither African country is a member of the UNSC, holding veto power over any referral through that body.  That limitation can be overcome, but will it?  After all, none of the Africans referred to the ICC were from a nuclear power or a country with significant global economic power.

All cases under active investigation or prosecution by the ICC are in Africa. Since its establishment in 2002, the Office of the Prosecutor of the ICC has investigated eight situations involving alleged violations of international criminal law. Each of these investigations were related to situations in Africa: the Democratic Republic of the Congo (DRC), Uganda, the Central African Republic (CAR), Sudan, Kenya, Libya, Ivory Coast and Mali.

It isn’t that the ICC hasn’t received information on alleged abuses in other parts of the world, such as Iraq, Venezuela, Palestine, Colombia and Afghanistan, but the court decided not to open investigations into those situations or kept them under preliminary examination in order to make a determination on whether to proceed with an investigation.

Over the last two decades, this has created animosity in Africa about how the ICC does business.  Rwandan President Paul Kagame has accused the court of being established merely to prosecute Africans.  Rwanda is not a state party to the Rome Statute.

Actually, there initially was support for the ICC in Africa because that court could take up cases where violators of international law on the continent could be taken to trial and punished if convicted without causing major upheaval within the countries from which prosecuted individuals resided.  This was the initial feeling in Kenya after the calamitous aftermath of the 2007 elections.  However, then-Deputy Prime Minister Uhuru Kenyatta was charged by the court for about two weeks in late 2011 until the charges were dismissed, as were the charges against William Ruto, but not until April 2016 – three years after Kenyatta and Ruto took office as President and Deputy President respectively.  Evidently, the majority of Kenyan voters didn’t feel the referral of these two leaders was justified.

Former Sudanese leader Omar al-Bashir traveled from country to country in Africa with governments refusing to take him into custody and turn him over to the ICC despite his being indicted by the court.  This refusal to cooperate by African state parties to the Rome Statute caused condemnation among members of the international community and significant political problems within African countries such as state party South Africa.  It wasn’t until 2020, after he had been removed from power in Sudan, that the transitional government there decided to hand Bashir over to the ICC despite not being a state party.   

It isn’t that there weren’t significant justifications for at least some Africans to be referred to the ICC.  For example, Thomas Lubanga Dylo of the DRC was the first person arrested under a warrant issued by the ICC.   Rebels he commanded were accused of massive human rights violations, including ethnic massacres, murder, torture, rape, mutilation and forcibly conscripting child soldiers.  He was convicted on 14 March 2012 and faced up to 30 years in prison, but the court sentenced him to a total period of 14 years of imprisonment and ordered that the time from Lubanga's surrender to the ICC in 2006 until the sentencing day should be deducted from the 14-year term, meaning he would spend six fewer years in prison.  He was released on 15 March 2020.

Bosco Ntaganda, also from the DRC, is currently serving a 30-year sentence for war crimes for enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. On 18 March 2013, Ntaganda actually voluntarily handed himself into the U.S. Embassy in Rwanda, asking to be transferred to the ICC. On 22 March of that year, he was taken into custody by the ICC, and while he pleaded not guilty to 18 charges brought against him, including rape, murder, recruitment of child soldiers and sexual slavery of civilians, he was convicted on 8 July 2019.

Of course, all the tough talk about the horrendous actions perpetrated by Russian forces in Ukraine likely won’t lead to an ICC referral on war crimes, crimes against humanity or crimes of aggression.  They didn’t in the cases of Russian actions in Syria or the takeover of Ukraine’s Crimea region.  That doesn’t mean that sanctions against Russia and Russian individuals won’t continue or be increased, but some sanctions, such as a cutoff of oil and gas imports from Russia, have caused economic pain in the sanctioning countries as well and haven’t really prevented Russia from finding willing buyers anyway, such as China.  Countries with less economic leverage than Russia find it much harder to withstand sanctions.

During the global economic crisis of 2008, the phrase “too big to fail” was often used to explain why financially reckless companies were assisted to avoid bankruptcy to prevent even greater economic damage through their collapse.  One can understand the realities surrounding Russia’s economic position in the world and even concede that most Africans referred to the ICC deserved to be there.  However, for justice to be accepted as such, it must not only be fair but appear to be fair.  Right now, in the eyes of many Africans, that doesn’t apply to how the ICC operates.