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The ICC’s selective approach to war crimes undermines its credibility

March 28, 2023 at 10:30 am

The exterior of the International Criminal Court is seen in The Hague, Netherlands. [Pierre Crom/Getty Images]

Given the slow and selective investigations of alleged war crimes in Palestine and Afghanistan, the International Criminal Court’s speedy warrant to put Russian President Vladimir Putin on trial for alleged crimes in Ukraine begs questions about it becoming a partisan institution. Based in The Hague, the ICC is an independent and permanent war crimes court. It succeeded the ad hoc UN tribunals which tackled the 1990s Rwandan genocide and war crimes in former Yugoslavia. It is the only international body with the authority to prosecute individuals for genocide, crimes against humanity and war crimes. It prosecutes individuals, not countries, when a member state is unwilling or unable to do so itself.

On 1 January 2015, Palestine lodged a declaration at the ICC over alleged crimes committed by Israeli armed forces since 13 June 2014 in the occupied Palestinian territory, including East Jerusalem. The allegations include disproportionate attacks and wilful killings of civilians during the 2014 Gaza offensive when Israeli armoured forces swept into the heavily urbanised enclave. Despite the fact that Israeli attacks have continued and, more recently, increased in number rapidly, the ICC investigation has not progressed with any meaningful action. Importantly, the ICC also made sure to probe whether Hamas, which is the de facto government in Gaza, and other Palestinian armed factions carried out intentional attacks on civilians with rocket fired into Israel, as well as torture and killings of Palestinians by Palestinian security services.

Likewise, a preliminary investigation of crimes committed in Afghanistan had been underway for more than a decade before a full investigation was authorised, which included crimes committed by all parties to the conflict. This investigation marked the first time that the ICC probed crimes committed by US forces in Afghanistan, including extrajudicial killings, drone strikes that killed an untold number of civilians, and torture. The investigation was then suspended by pretrial chamber citing the “political climate” and “the need for the Court to use its resources prioritising activities that would have better chances to succeed.”

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On appeal by the ICC prosecutors and representatives of victims, the ICC appeals chambers authorised a formal investigation in Afghanistan on 5 March, 2020. In response, the then US President, Donald Trump, issued an executive order condemning the ICC, and on 2 September 2020 imposed sanctions on ICC Prosecutor Fatou Bensouda and another senior prosecution official, Phakiso Mochochoko. In addition, the then US Secretary of State Mike Pompeo announced restrictions on the issuance of visas for certain unnamed individuals “involved in the ICC’s efforts to investigate US personnel.” This followed a series of other measures by the US government against the ICC official involved in this investigation.

British lawyer Karim Ahmad Khan KC took over from Bensouda as ICC prosecutor in 2021. He “deprioritised” investigation of the US war crimes while prioritising investigation of those allegedly committed by the Taliban and other parties.

Now compare this with the investigation of alleged Russian war crimes in Ukraine. On 28 February 2022, just four days after Russia invaded its neighbour, the ICC prosecutor announced that he would seek authorisation to open an investigation into the Situation in Ukraine, on the basis of the Office’s earlier conclusions arising from its preliminary examination. On 2 March 2022, one day after the formal referral by the ICC member states, the prosecutor announced that he had proceeded to open an investigation into the situation in Ukraine. Moving with lightning speed, on 17 March — ten days ago — the ICC issued arrest warrants for Vladimir Putin and another Russian national citing “reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.”

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According to Kyiv, thousands of Ukrainian children have been taken to Russia since the start of the war on 24 February 2022, with many allegedly placed in institutions and foster homes. Russia, on the other hand, accused the UN of “increasingly retreating from an impartial stance in relation to the events in Ukraine”, and remarked sarcastically that, “There is no noticeable shelling by the Ukrainian Armed Forces. Nobody wants to see the civilians who were killed, who were wounded, they are not there. They are simply obscured from the field of information and, consequently, from consciousness.” In June 2022, the Ukrainian army allegedly engaged in intensive shelling of several towns in Donbass (Donetsk, Gorlovka, Makeyevka, Stakhanov) in the middle of the day, causing numerous victims among civilians.

The ICC’s initiative to investigate war crimes in Ukraine is great, but to promote respect for international law and its own credibility as an independent and impartial institution, the Court must ensure equal treatment by investigating all parties involved in armed conflicts so that no war crimes go unpunished. The ICC’s selective approach to certain victims and apparent lack of willingness to investigate certain powerful and preferred perpetrators undermines its credibility and its objectives in the fight against impunity and the establishment of the rule of law.

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