Mongolia is a country without a coast, wedged between Russia and China. In a hyper-polarized world, its choices are limited. Hence, it chose to set aside its commitments as a signatory to the International Criminal Court (ICC) to roll out the red carpet for Russian President Vladimir Putin on September 3. Compared to South Africa, which declined to host Putin for the BRICS summit, Mongolia pronounces itself as a client state.
Arguably, what significance does a court hold without the power to enforce its decisions? How can the ICC bring powers to justice when its member-states or signatories do not have the will to act accordingly? The promise of “ending impunity” lies in arresting and trying not only Putin but also Israeli figures like Benjamin Netanyahu and Yoav Gallant alongside Hamas leaders Yahya Sinwar and Mohammed Deif. The ICC indicted Omar al-Bashir, former president of Sudan for committing genocide, war crimes, and crimes against humanity in Darfur. Still, Khartoum has protected him since the decision in 2009. The ICC relies on several provisions of the Rome Statute, most notably Article 27, to prosecute those in positions of power. The court gained renewed vigor to deliver on its mandate since the appointment of Karim A.A. Khan — a British lawyer of Pakistani descent — as the prosecutor general.
In 1998, genocides committed in Bosnia-Herzegovina and Rwanda led to the development of a permanent system of international justice. However, international law was undermined after 9/11 as the War on Terror blurred the lines between civilians and terrorists. Nonetheless, the Rome Statute was enacted on July 1, 2002. With Armenia being the latest entrant, its 124 member countries do not include Israel, Russia, India, China and the United States, while the European Union is a staunch supporter.
The international court exercises jurisdiction over four categories of crimes under international law: genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or religious group, as such; war crimes, including grave breaches of the laws of war under the Geneva Conventions and serious violations under customary international law; crimes against humanity, and crimes of aggression, where a political or military leader plans or executes the use of armed force by a state. Notably, China and India share their criticism of the ICC that it infringes on a state’s sovereignty. Russia withdrew its membership in 2016 after the court classified its annexation of Crimea as an occupation.
The United States, on the other hand, has oscillated between support and opposition of the court depending on the administration. Soon after the ICC’s foundation, the United States legislated the American Service-Members’ Protection Act, which required the White House to sever financial assistance to ICC members agreeing to surrender US personnel to the court. Hence, the ICC has not issued an arrest warrant for any US official. Even ICC-favoring presidents like Biden do not always support all its decisions. The decision to issue arrest warrants for Netanyahu and Gallant is a case in point. Prior to Khan’s appointment, the court was also criticized for targeting African officials. The ICC is generally criticized for having too little authority to enforce its decisions.
Besides enforcement of its recent decisions, Khan is faced with the challenge of reducing pressure from the court’s major financiers: Canada, France, Germany, Italy, Japan and the UK.
Despite being marred by a barrage of limitations of its statute as well as complexities and contradictions of the world order, the ICC dared to open investigations into possible crimes from non-member states. Though neither Ukraine nor Russia are members of the court, Palestine joined in 2016 amidst opposition from the United States and its allies. Both the verdicts, revealing an emboldened court which seeks to uphold international law, came as a surprise given the passive history of the Office of The Prosecutor (OTP). Had the UNSC referred or the then OTP taken cognizance of the conflict in Syria in 2016, the ICC could have fared better today in terms of its clout and authority.
Sinwar and Deif are not likely to leave or escape Gaza, exposing them to arrest warrants, Putin might be traveling to Islamabad for the Shanghai Cooperation Organization Summit scheduled from October 15 to October 16. Pakistan has not commented on whether an invitation was extended to the Russian president as this would undoubtedly stir controversy. The Kremlin must also be assessing if it is safe for Putin to visit a country still closer to the West than Russia and risk embarrassment. Similar to the BRICS Summit 2023 in Johannesburg, it may prefer to dispatch its foreign minister or the lesser-known premier.
The authority and credibility of global legal institutions, be it the ICC or the International Court of Justice, depend upon the degree and level of polarity or harmony in the global system. Evidently, global politics is more conflictual today than it was in 1998, when the ICC was established, something impossible to forecast a decade prior.
