International criminal court& challenges to end war crimes | By Adv Changezi Sandhu


International criminal court& challenges to end war crimes

UNDER the Geneva Convention, certain rules of war have been framed to protect human beings from heinous crimes. Geneva Convention along with other additional protocols prohibits murder, torture, mutilation, hostage, unfair trial, cruelty, humiliation and degradation. Special protection is given to the rights of children, women, patients, old people and prisoners during war time and post war. International Criminal Court was established in 2002 for the purpose of prosecution of war crimes against humanity, genocide and crime of aggression.

Under articles 8(2)(a)(vii) and (8)(2)(b)(viii) of the Rome Statute, the Russian President has been accused of being responsible for war crimes of illegal abduction and deportation of children from Ukraine to the Russian Federation since 24 February 2022 when Russia invaded Ukraine. First time in the history of the International Criminal Court, ICC has issued an arrest warrant against one of the state heads of five permanent members of the United Nations Security Council. The ICC also issued an arrest warrant for the Russian Commissioner for Children’s Rights, Ms Maria Lvova-Belova. The allegations have been denied by Moscow and called the warrants “outrageous”.

On the other hand, Ukrainian President Volodymyr Zelenskiy appreciated the move of ICC termed the arrest warrants as “historic accountability”. Kremlin spokesman Dmitry Peskov condemned the move of ICC by calling the arrest warrants as “outrageous and unacceptable”. By raising questions on the jurisdiction of ICC with special reference to Russia, he also said that any decision of ICC would be “null and void” because of the absence of Russia as a member of ICC. Another official of Russian Ministry of Foreign Affairs spokeswoman Maria Zakharova shared her legal concern on the recent move of ICC on her Telegram channel in these words, “The decisions of the International Criminal Court have no meaning for our country, including from a legal point of view”. She further explained her point of view by stating that “Russia is not a party to the Rome Statute of the International Criminal Court and bears no obligations under it.”

In fact, the International Criminal Justice System has been facing numerous challenges since its inception which are administrative, legal and financial in nature. Territorial Jurisdiction is one of the most important problems being faced by ICC as only 139 states signed the Rome Statute and only 118 ratified the document. Firstly, no doubt, ICC cannot take action to arrest any official within the territory of a state that is not a party to the Rome Statute of ICC. Similarly, ICC cannot order the Russian government for execution of the recently issued arrest warrants to arrest any accused within its territory and extradite them to the respective body for further trial. So, global powers should make efforts to make all members of UNO to the party of Rome Statute of ICC for fair implementation of international laws.

Secondly, there is not a well-defined mechanism of a force that is supposed to execute orders of ICC fairly. The department of Police is considered as a backbone in a criminal justice system for implementation of court orders. However, ICC does not have its own police department with powers to raid around the world, or in member countries. So, the judicial department that is supposed to protect rights of marginalized segments of global society lacks a basic administrative mechanism regarding force. And considering law and enforcement agencies of a country to arrest their heads of states or top officials under execution of order of ICC will be pure speculation and illusion.

Thirdly, implementation of the Rome Statute of ICC in the countries which are parties to the Rome Statute is also another major challenge. Even signatories do not pay much attention to the execution of orders of ICC. There is no strict mechanism to punish those countries which do not fulfill their obligations under the statute. For instance, former Sudanese President Omar al-Bashir was held responsible of genocide during Sudan’s Darfur conflict by ICC. More than 400,000 deaths were estimated by UNO during his reign. He is alleged as a mastermind of genocide, crimes against humanity and war crimes during Darfur conflict. In the pre-trial phase of the case, ICC issued an arrest warrant for Omar al-Bashir in 2009. Bashir was on visit to attend an African Summit, and South Africa was legally bound to arrest Bashir and extradite him. However, the government refused to arrest him under some legal concerns over diplomatic immunity. South Africa also threatened ICC to withdraw if any action is taken over the violation.

Fourthly, impartiality is the basic essence of the judiciary. Lessening the tendency of meritocracy is another dilemma when it comes to analyzing moves of ICC. For instance, ICC will never take up any case regarding violation of human rights committed by the USA or UK. ICC was helpless and inundated with the allegations of war crimes committed by American troops in Iraq. Did the ICC ever take action against the UK OR USA while committing gross violation of human rights in any signatory country? Did the ICC ever condemn or take action against immunity agreements of the USA with signatory and non-signatory countries to give legal shelter of non-prosecution to violation of human rights of her citizens and troops? If not, then of course, Russia will allege the arrest warrants of the Russian President and Commissioner as a politically-motivated prosecution under the western policy to isolate Russia.

ICC should keep its impartiality upper-handed. It ought to be the role model with its merit-based steps without any discrimination so that non-signatory countries could join ICC to make it more effective. Global institutions which represent the global community for collective benefits should not be hijacked by global powers. Global leaders irrespective of any political bloc should play their role to take decisions in making ICC worldly accepted so that war crimes could be investigated fairly and stopped all around the world. It is the time to separate politics from the international criminal justice system. Let’s make the world war crime-free with an effective international criminal justice system!

—The writer is a Lahore based civil and criminal lawyer & working on the criminal justice system, International law & human rights.

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