Given the slow and selective investigations into alleged war crimes in Palestine and Afghanistan, the International Criminal Court’s swift warrant to try Russian President Vladimir Putin for alleged crimes in Ukraine is raising questions about his being a a partisan institution. Based in The Hague, the ICC is an independent and permanent war crimes court. It succeeded the UN ad hoc tribunals that dealt with the Rwandan genocide in the 1990s and war crimes in the 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 filed a declaration at the ICC regarding alleged crimes committed by the Israeli armed forces since 13 June 2014 in the occupied Palestinian territory, including East Jerusalem. The allegations include disproportionate attacks and voluntary killings of civilians during the 2014 Gaza offensive when Israeli armored forces swept into the heavily urbanized enclave. Despite continued Israeli attacks and, more recently, a rapid increase in the number of attacks, the ICC investigation has not progressed with any meaningful action. Importantly, the ICC also decided to investigate whether Hamas, the de facto government in Gaza, and other Palestinian armed factions had deliberately attacked civilians with rockets fired into Israel, as well as Palestinians who tortured and killed by the Palestinian security services. .
Similarly, a preliminary investigation into crimes committed in Afghanistan was ongoing for more than a decade before a full investigation was authorized, including crimes committed by all parties to the conflict. This investigation was the first time the ICC investigated 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 a pre-trial chamber citing the “political climate” and “the need for the Court to use its resources to prioritize actions that have a better chance of success.”
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On appeal by ICC prosecutors and victims’ representatives, the ICC’s appeals chambers authorized a formal investigation in Afghanistan on March 5, 2020. In response, 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, then US Secretary of State Mike Pompeo announced restrictions on the issuance of visas to certain unnamed individuals “involved in the ICC’s efforts to investigate US personnel.” This followed a series of other actions taken by the US government against ICC officials involved in this investigation.
British lawyer Karim Ahmad Khan KC succeeded Bensouda as ICC prosecutor in 2021. He “de-prioritized” the investigation of US war crimes while prioritizing the investigation of those allegedly committed by the Taliban and parties another.
Now compare this to 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 authorization to open an investigation into the Situation in Ukraine, based on the Office’s earlier conclusions from his preliminary examination. On 2 March 2022, one day after the formal referral by ICC member states, the prosecutor announced that he had proceeded to open an investigation into the situation in Ukraine. Moving with lightning speed, on March 17 – ten days ago – the ICC issued arrest warrants for Vladimir Putin and another Russian national citing “reasonable grounds to believe that all the suspects are responsible for the war crime of illegal deportation of the population (children) and illegal transfer of the population (children) from the occupied areas of Ukraine to the Russian Federation, to the detriment of Ukrainian children.”
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According to Kyiv, thousands of children have been taken from Ukraine to Russia since the start of the war on February 24, 2022, and many of them are allegedly placed in institutions and foster homes. Russia, on the other hand, accused the UN of “further retreating from an impartial position in relation to the events in Ukraine”, and said strangely, “There is no significant shelling by the Armed Forces of Ukraine. No anyone wants to see the civilians. who were killed, who were wounded, who are not there. They are simply obscured from the realm of intelligence and, therefore, from consciousness.” In June 2022, the Ukrainian army allegedly carried out an intensive shelling of several towns in Donbass (Donetsk, Gorlovka, Makeyevka, Stakhanov) in the middle of the day, causing many 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 who are involved in armed conflicts so that no war crimes go. without penalty. The ICC’s selective approach to certain victims and apparent unwillingness to investigate certain powerful and selective crimes undermines its credibility and its objectives in the fight against impunity and the establishment of the rule of law.
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The views expressed in this article are those of the author and do not necessarily reflect the editorial policy of Middle East Monitor.