Putin's ICC indictment reveals a victim hierarchy in the global justice system

Some victims are worthy, others are not. Some perpetrators are accountable, others are less so.

This rhetoric has for so long steered criticism against the international justice system, especially against the International Criminal Court’s (ICC) inability to reach the ‘fairest’ possible prosecutorial decisions.

The ICC’s arrest warrant against Russian President Vladimir Putin, although a historic step, only confirmed this worldview. Questions were raised about the speedy indictment, timing, and vigour vis-à-vis the hundreds of other cases which remain inactive on the Prosecutor’s desk.

The court accused Putin of war crimes in regard to the forced deportation of children from Ukraine to Russia. The allegations also targeted Russia’s commissioner for children’s rights, Maria Lvova-Belova. The judges added that further allegations against Putin may follow.

"The Russian president is only the third head of state to be indicted for war crimes, after Sudan’s Omar al-Bashir and late Libyan leader Muammar Gaddafi, but the first leader of a major global power"

The Russians were expectedly unhappy about the ruling but nonetheless remained reserved in their reaction. Kremlin spokesman Dmitry Peskov said Moscow found the decision "outrageous and unacceptable,” but from a legal viewpoint it is “void and null.”

China said the decision was politicised and indicative of double standards. Several other nations, mainly in the Global South, either remained apathetic to the decision or walked a tightrope, possibly to avoid clashing with either Moscow or Washington.

Russia is no longer a signatory to the Rome Statute which established the court. It is therefore not obliged legally to surrender any of its citizens to the ICC’s jurisdiction, let alone a sitting head of state.

Indeed, it may be difficult to bring the court’s decision to fruition, especially against a powerful leader. But the decision to accuse Putin directly, some argued, may have salvaged some of the ICC’s credibility after nearly two decades of a poor conviction record against mostly African nations.

After issuing an arrest warrant for Putin, @hannaalkhafaji argues that the ICC must do the same for Bush & Blair: the architects of the #IraqWar. Both have evaded accountability for 20yrs despite their long list of war crimes https://t.co/Do69s29gC7

— The New Arab (@The_NewArab) March 25, 2023

The Russian president is only the third head of state to be indicted for war crimes, after Sudan’s Omar al-Bashir and late Libyan leader Muammar Gaddafi, but the first leader of a major global power.

If the head of state is indicted, goes another argument, this could become a deterrent to all working members of the Russian armed forces, from high-ranking generals all the way down to individual soldiers. A comforting idea, but still lacks legal precedence.

That said, ‘isolation’ - a word that was thrown around quite a bit to describe Putin’s position after the warrant - is perhaps the closest to a realistic scenario.

The ICC has no policing capacity and it is unlikely that even when Putin is no longer in the Kremlin the Russians will surrender him to what they perceive as a Western-dominated institution.

But indicted and isolated for war crimes, Putin could still be faced with a symbolic and perceptual change that may hinder his ability to resume business as usual internationally. With 123 nations having ratified the Rome Statute, it could mean Putin’s world has just gotten smaller.

It is the scope of impact of this ‘smaller world’ that remains difficult to predict. Russia is a significant world player and several nations, including many of those that ratified the Statute, still rely on Russian raw material, have close ties and share a worldview with Moscow, or are simply too careful not to antagonise the Kremlin.

For the apathetic nations, however, the arrest warrant against Putin reflects a structural ICC problem that goes well beyond the practicalities of implementation. These nations are typically aggrieved, disenfranchised collectives that believe the international system has been rigged for a select few and is functioning with a victim hierarchy in mind.

Over two decades since its inception and $2b later, the ICC is yet to sustain a conviction against any senior state officials anywhere in the world. Many of its top cases were contaminated by procedural flaws, sabotage by the targets, and more importantly, due to intervention from powerful states.

Think of how Belgium caved to Washington’s pressure and restricted the scope of its universal jurisdiction laws to undermine the war crimes cases against General Tommy Franks, the US commander overseeing the Iraq invasion.

"The arrest warrant against Putin reflects a structural ICC problem that goes well beyond the practicalities of implementation"

It is not a one-off case. The Office of the Prosecutor refrained in 2020 from investigating war crimes by UK troops in Iraq, despite its own finding that such crimes took place.

The following year, Prosecutor Khan asked the court to resume investigations into alleged atrocities in Afghanistan committed by the Taliban and the Islamic State. Crimes committed by US and Afghan forces, meanwhile, were ‘deprioritised’, allegedly due to budgetary constraints.

Such budgetary constraints did not seem to hinder a Ukraine probe. The ICC has, in fact, started accepting voluntary funding and seconded personnel for Ukraine, potentially increasing the influence of powerful states in the court’s proceedings.

Khan never sought similar external funding for the ICC’s Palestine investigation since 2019 and, unlike Ukraine, he said no words about a potential Israeli “crime scene” nor set up a witness portal to report Israeli violations.

He is yet to visit Palestine, albeit he declared he was intending to visit this year, along with Afghanistan and the Democratic Republic of Congo. Khan visited Ukraine four times within a year.

Largely due to Western influence, the Palestine investigation remains unexecuted. The Trump administration exercised enormous pressure on the court and imposed sanctions on its personnel, including former Prosecutor Bensouda.

Even though the Biden administration lifted the sanctions, it continues to oppose any ICC role in Palestine - while actively empowering the court for Ukraine. Washington also came out against Al Jazeera for taking the murder of its Palestinian-American reporter, Shireen Abu Akleh, to the international court.

Germany, another engine behind the Putin indictment, also sought to block the ICC Palestine investigation on jurisdiction grounds.

This week and shortly after hosting an international war crimes meeting to boost support for the ICC, the UK issued a policy paper in which it pledged to tackle “the disproportionate focus on Israel" in international organisations. It renewed its rejection of Israel’s referral to the ICC, calling it “an inappropriate course…that undermines the efforts to achieve a settlement” between Israel and the Palestinians.

Albeit riddled with jurisdictional obstacles, the meaning of the ICC’s rulings against Putin or any other officials lies primarily in a baseline international assumption about a type of cross-border accountability that helps - theoretically - to promote adherence to human rights standards and has been shown to increase the number of universal jurisdiction cases.

But for the ICC to preserve long-term integrity, let alone a sustainable justice ecosystem, the double standards and victim hierarchy must be tackled more diligently.

It starts by holding accountable powerful Western actors and their allies, not just their designated enemies and weak states.

Dr Emad Moussa is a researcher and writer who specialises in the politics and political psychology of Palestine/Israel.

Follow him on Twitter: @emadmoussa

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.