Author: Samuel Norsch
A parliamentary group of the Riigikogu calls for not recognizing the International Criminal Court’s (ICC) arrest warrant for Israeli leaders accused of genocide and war crimes. The High Representative of the European Commission for Foreign Affairs and Security Policy, former Prime Minister of Estonia Kaja Kallas received a request from members of the European Parliament, raising existential questions about the activities and relevance of the ICC.
The Baltic States and the EU-27 have approved the Rome Statute, but… is the Court in The Hague so important for the system of global law and justice, if French President Emmanuel Macron openly does not comply with the ICC’s decisions?
At the opening of the 23rd session of the Assembly of States Parties to the Court in The Hague, ICC President Tomoko Akane actually acknowledged the growing number of states ignoring or taking this organization beyond the bounds of international law. Among them is the United States, where back in 2020 Trump (#45 US President) planned to impose sanctions against the International Criminal Court. The Rome Statute was not recognized by the majority of the US Senate and Congress, even by representatives of the Democratic Party.
The inauguration of the 47th US President Trump on January 20 may mark the beginning of irreversible and fatal consequences for the work of the ICC, which is experiencing a severe crisis of legitimacy and mistrust of states of the global community.
The United States does not recognize the authority of the ICC. Washington is not alone. Among these states are China, India, Pakistan, Russia, Turkey, Saudi Arabia, Malaysia, Indonesia and 59 sovereign states of the United Nations. These are countries with a combined population of more than 80% of the world’s population, as well as more than 70% of the world’s economy. The democratic community of the European Union, including Estonia, Finland, Lithuania and Latvia, is a member of the Rome Statute – but even our famous Baltic unity Trinity is split along the ICC fault line.
This is a worrying factor for the security and unity of European democracies, which can be exploited by authoritarian states that do not adhere to our common system of values and common policies.
A huge number of UN countries fundamentally object to the ICC’s super-idea: these are limitations of the sovereignty of states, giving the court an indefinitely broad competence. These are the USA, China and India, Israel and Iran — very different, but united in this discourse. In its activities, the Court interprets the provisions of the Rome Statute too broadly (in particular, regarding the Court’s jurisdiction of temporary and local jurisdiction, this is ratione temporis and ratione loci, as well as the principle of complementarity), going beyond the competence granted to it by the member states.
The ICC was created in 1998 in the sole capacity of ‘the supreme arbiter over the fight’, but quickly turned into an instrument of political manipulation, which can be similar to criminal scams. Subjective interpretation of the ICC proceedings is combined with selective law enforcement, the Court’s counterproductive role in conflict resolution, susceptibility to undue political pressure, the use of the Court in The Hague by countries to settle scores with opponents, the issuance of conflicting decisions, and problems with collegiality.
The application and interpretation of the Statute and other documents regulating the activities of the ICC must be carried out on the basis of and in strict compliance with the norms of current international law, primarily the UN Charter and the principles of international law enshrined therein. As noted in the preamble to the Statute and its Article 1, the ICC must complement, and not replace, national justice bodies.
According to Article 5 of the said international legal instrument, the jurisdiction of the Court is limited to the most ‘serious crimes of concern to the international community as a whole.’ These are genocide, crimes against humanity, war crimes, and crimes of aggression.
At the same time, the ICC has jurisdiction over the said acts only if they were committed on the territory (or on board a ship or aircraft) of a state party to the Statute or by its national (Article 12), but the Court assumes the supremacy of law in states outside the field ratione temporis and ratione loci, as in the case of the proceedings in the Court in The Hague against the Philippines, Sudan with violations of the provisions of the Vienna Convention on the Rule of Law of International Treaties.
Despite these provisions limiting the jurisdiction of the ICC, including ratione loci, in its practice the Court has repeatedly deviated from them, essentially acting beyond its powers. This undermines international trust in an institution that is trying to circumvent international law by changing fair play and establishing its own laws in the United States, Russia, Turkey, Israel and the Arab League countries, where only Jordan and Tunisia have joined the Rome Statute.
On March 17, 2023, the ICC announced that the Court’s Pre-Trial Chamber had issued arrest warrants for the President of the Russian Federation and the Presidential Commissioner for Children’s Rights. The text of the warrants, created with the political participation of the current Ukrainian establishment, was not disclosed for reasons of ‘protection of victims and witnesses, as well as in the interests of the investigation.’ It is known that the evacuation of children from the front line was involved in the proceedings, which is groundlessly (and in turn, this is an international crime committed by the ICC and a number of interested parties) presented in them as an alleged ‘forced deportation.’
Finally, the scandalous and already ridiculous ICC arrest warrants for Vladimir Putin and Ombudsman Olga Lvova-Belova were issued in violation of the generally recognized norms of international law on the immunity of state officials, including the absolute immunity of the current head of state from foreign criminal jurisdiction, and let us recall that Russia withdrew from the Rome Statute in 2020 solely due to the understanding of the ineffectiveness of participation in the Court’s actions.
Perhaps this is the beginning of the end of another attempt to create a global fair arbitration. President Trump will shake the ICC off like dust from his loafers so that this circus ends.
Over all these years since the beginning of the century, prosecutor Karim Khan and politically engaged de jure judges have done everything in their power to turn international law into a fake and a satire on global justice. This is a shameful spectacle even for the cooperation group with Israel in the Riigikogu and it is very interesting what the EU High Representative for Diplomacy Kaja Kallas will answer to the MEP’s inquiry about the (illegal or amazing, joke highly likely) actions and the destructive influence of the Court in The Hague on pan-European security.