When politics muzzles justice
Anyone working to deliver justice for victims of international crimes knows that the judicial process can be hindered by political considerations at every stage. Recent news has once again reminded us of this harsh truth.
At the Arrest Warrant Stage
A political backlash was to be expected following the May 2024 decision by International Criminal Court (ICC) Prosecutor Karim Khan, requesting arrest warrants for both Palestinian and Israeli officials accused of perpetrating international crimes. The backlash came swiftly.
On July 22, 2024, the three ICC judges handling the prosecutor’s request made an unprecedented decision in the 22-year history of the ICC. Despite the ICC’s consistent jurisprudence that the decision to issue an arrest warrant at the preliminary stage should involve only the prosecutor, judges allowed 21 state organizations and about 40 other actors to submit comments on the validity of the request.
As a result, declared political opponents of the ICC, like the United States or South Carolina Republican Senator Lindsey Graham, were able to weigh in.
The irony is that this flood of submissions was triggered by a request from the United Kingdom. The British government wanted to intervene, arguing that the arrest warrants against Israeli leaders had no legal basis. However, following recent elections, the UK has changed both governments and its position on the matter, announcing on July 26 that it would not submit any comments after all!
In 2022, it took ICC judges two months to confirm, without seeking outside opinions, the arrest warrant against Vladimir Putin. Concerning Palestine, after nearly four months and 600 pages of external opinions, one can only hope that beyond the political factors at play, the unusual approach by the three ICC judges was ultimately aimed at making the decision as legitimate as possible by allowing everyone a voice. Time will tell.
At the Arrest Stage
It goes without saying that obtaining an arrest warrant from ICC judges is just one step on the path to a trial. The ICC, lacking its own police force, must rely on the cooperation of states that have signed its statute for the system to work. A key component for enforcement is the obligation of these states to arrest anyone on their territory for whom the ICC has issued an arrest warrant.
The best way to undermine the ICC’s credibility is to show that this cooperation doesn’t work. This is exactly what Vladimir Putin did a few days ago during his state visit to Mongolia, a country that has ratified the ICC statute.
Since his indictment, Vladimir Putin only traveled to countries that had not ratified the ICC statute, such as China, North Korea, Saudi Arabia, or the United Arab Emirates, where he faced no risk of arrest. In 2023, Putin even chose not to attend the BRICS summit in South Africa, a signatory of the ICC treaty.
Putin’s choice of Mongolia to challenge the international justice system is strategic, as the country depends on Russia for 95% of its petroleum products. Unsurprisingly, Putin was accompanied by officials from the energy and transportation sectors, as well as leaders from private oil groups, and trade agreements were concluded during the visit.
The ICC will respond with its own tools. The institution has long experience with former Sudanese President Omar al-Bashir. Sought for genocide and still in power at the time, he defied international justice by traveling to several African countries as well as outside Africa, including Jordan—countries that were signatories of the ICC treaty—without ever being arrested.
When the prosecutors brought these cases to the judges, the ICC developed jurisprudence on the obligations of states party to its statute, culminating in a 2019 decision by the Appeals Chamber. This decision confirmed that, beyond any head-of-state immunity, the 124 ICC member states are indeed obligated to arrest any person sought by the ICC on their soil. The judges referred Jordan, among others, to the ICC Assembly of States Parties for non-cooperation.
That sanction didn’t scare Mongolia. Therefore, to maintain the credibility of the international justice system, it is crucial that an overwhelming majority of states party to the ICC statute fully accept their obligations. This will significantly limit the Kremlin leader’s travel options and send an important signal that defying international law is not without consequence.
After the Judgment
A recent development has reminded us that even after a final judgment for international crimes, political considerations can still lead to the release of a convicted individual.
In June 2024, Sweden announced a prisoner exchange with Iran, sending Hamid Nouri, convicted in Sweden for war crimes for his role in the execution of political prisoners in 1988, back to Iran. In exchange, Sweden secured the release of a Swedish diplomat working for the European Union who had been arrested while on vacation in Iran.
Iran specializes in the unjust detention of Westerners to obtain concessions. In 2023, the country secured the release of an Iranian diplomat stationed in Austria, who had been sentenced to 20 years in Belgium for attempting to detonate a bomb north of Paris during an opposition meeting. Belgium, in return, secured the release of a Belgian humanitarian worker arrested and convicted in Iran.
Iran is not the only country engaged in this disgraceful practice. We were painfully reminded of this with the arrest and trial in Moscow of a highly respected member of Geneva’s international community, Laurent Vinatier.
These prisoner exchanges, which revoke years of efforts to achieve justice for international crimes on behalf of victims, pose a real challenge to our democracies and warrant serious reflection. One reality remains, however: these varied attempts to obstruct the course of justice will not deter all victims. Their desire for justice is a noble and profound endeavor that cannot be silenced by politics.
The article first appeared in French on Le Temps on the 23th of September, 2024
Photo: Photo: Vladimir Putin Meeting with President of Mongolia Ukhnaagiin Khurelsukh. Credit : Kremlin.ru.
