‘Kangaroo Court’: What is the International Criminal Court That Just Issued 'Warrant' for Putin?
21:17 GMT 17.03.2023 (Updated: 04:48 GMT 18.03.2023)
© AP Photo / Peter Dejong
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The Kremlin has laughed off an attempt by the International Criminal Court (ICC) to issue an "arrest warrant" for Russian President Vladimir Putin and another Russian official for the purported "unlawful transfer" of Ukrainian children from the conflict zone over the past year.
Based in the Dutch city of the Hague, the ICC purported to charge Putin and Maria Alekseyevna Lvova-Belova, Putin’s commissioner for children’s rights in the Russian Federation, with “unlawful deportation of population and that of unlawful transfer of population” over reports that Ukrainian children were taken from parts of western Russia that had previously seceded from Ukraine and joined the Russian Federation.
Moscow has said it was transferring people away from the front lines, where Ukrainian missile attacks have killed and wounded civilians since the earliest days of the conflict. "We do our best to keep young citizens in families, and in cases of the absence or death of parents and relatives, to transfer orphans to guardianship. We are ensuring the protection of their lives and well-being," the Russian embassy in Washington, DC, said recently.
"The decisions of the International Criminal Court have no significance for our country, including from a legal point of view," said Russian Foreign Ministry spokeswoman Maria Zakharova. "Russia is not a party to the ICC's Rome Statute and bears no obligations under it. Russia is not engaged in cooperation with this body, and any possible [orders] for arrests coming from the court will be legally null and void for us.”
So what is this court, anyway?
Origins of the Court
Several attempts were made over the course of the 20th century to establish an international tribunal for prosecuting such heinous international crimes as war crimes, crimes against humanity, and genocide. However, at each juncture, world politics intervened to make such a venture unrealistic.
In the meanwhile, ad hoc courts were created to prosecute the perpetrators of specific atrocities, including the Holocaust, Japan’s wars of conquest across East Asia, and the Rwandan genocide.
What became the ICC gradually took shape during the 1990s, with the United Nations General Assembly tasking the International Law Commission (ILC), a body of legal experts appointed by the UNGA, to draft a framework for such a court. By June 1998, several drafts had been poured over by UN-appointed working bodies and a diplomatic conference was called in Rome, Italy, the following month.
The 1998 Rome Statute
The Rome Statute was adopted at the conference by 120 nations who voted for it. Another 21 abstained, and seven countries voted against it: China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. However, the nations that signed it then had to get it ratified by their own governments, and the treaty entered force in 2002 after 60 nations had done so.
The statute founding the ICC created four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression, none of which have a statute of limitations. According to the treaty, the ICC is only empowered to investigate international crimes when states are “unable’ or “unwilling” to do so themselves.
Further, it only has jurisdiction if the crimes are committed in the territory of a state that is party to the treaty or committed by a state that is party to the treaty, or if the United Nations Security Council votes to give it jurisdiction, or if a state that is not party to the treaty appeals to the ICC to give it jurisdiction.
How Many Nations Are or Aren’t Party to the Rome Statute?
As of March 2023, the number of nations who are party to the treaty is 123. Several nations have also rescinded their signatures over the years, including the Philippines, Burundi, Israel, the United States, Sudan, and Russia. South Africa rescinded its signature at one point, but then re-signed the treaty later on.
Another 41 nations have neither signed nor acceded to the Rome Statute, and many are actively critical of it, including China and India.
Wait, Didn’t Trump Sanction the ICC?
Yes, in June 2020, the administration of then-US President Donald Trump announced it would sanction ICC officials with visa restrictions on them and their families, and would launch a counter-investigation into the ICC for alleged corruption. The precipitating factor was the court announcing it intended to investigate war crimes in the US’ 20-year-long occupation war in Afghanistan.
Trump’s secretary of state, Mike Pompeo, derided the ICC as a “kangaroo court,” an English-language term of slander for courts of law that are seen as “jumping over” the widely accepted standards of jurisprudence to deliver pre-decided convictions and sentences.
Washington's ‘Hague Invasion Act’
The US has always had a stormy relationship with the ICC. As mentioned above, it signed the 1998 Rome Statute in 2000 but has made clear it has no intent of ratifying it and that it believes it has no legal obligations as a result of its signature.
In 2002, then-US President George W. Bush signed the American Service-Members Protection Act (ASMA), known informally as the “Hague Invasion Act” because it authorizes the president to use "all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”
The 2002 law also prohibits US military aid to countries that are party to the ICC, although a number of caveats exist, including for NATO members, major non-NATO allies, the Chinese autonomous region of Taiwan, and countries that have entered into “Article 98 agreements” not to hand over US nationals to the ICC.
After Bush, then-US President Barack Obama moved closer to the ICC, but made no move to accede to its jurisdiction, and Trump was much more hostile to the court in keeping with his general distrust of international institutions with power over US sovereignty. Under US President Joe Biden, who took office in 2021, the US has dropped the Trump-era sanctions but remains in a standoffish position vis-à-vis the ICC.
