‘The Fight Against Impunity: An Unsteady Balance of Law and Politics’
Richard Wright
3rd Year LL.B Student at Trinity College Dublin
(Currently studying European and International Law and KU Leuven)
“Moscow sent a barrage of missile and drone attacks throughout Ukraine following the decision by the Prosecutor of the International Criminal Court to issue an arrest warrant for Vladimir Putin. Evidently, for every legal decision made in the fight against impunity, there are real-world consequences. This article highlights the political risks involved with legal intervention in ongoing armed conflict, while also defending legal intervention by reference to the Rome Statute and the theoretical basis for international criminal law. Nonetheless, despite the unsteady balance of legal and political considerations during war, the two do not operate entirely independent of each other and thus rely on one another in furtherance of their respective objectives.
1. Introduction
In the hours following the decision by the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) to issue an arrest warrant for Russian president Vladmir Putin, Moscow launched dozens of attacks throughout Ukraine,[1] a bleak reminder that international accountability mechanisms, regardless of how much we imagine them to be, are not entirely divorced from politics. Decisions made by the OTP have real world consequences. The inevitable question being, should the Prosecutor consider those consequences when it decides to investigate or prosecute situations? This article will consider this question with regard to the risks and justifications for legal intervention in ongoing armed conflict with inherent political ramifications. International Criminal Law (ICL) has ushered in an era where Clausewitz’s famous line – ‘War is […] a continuation of political intercourse, carried on with other means,’[2] – is somewhat of a misnomer since it is abundantly clear that Putin’s war is a crime, rather than mere politics. So, although not divorced, in the years since the beginning of individual responsibility for violations of the laws of armed conflict, a level of separation has thankfully buffered between the two. Therefore, it will be argued that the OTP should not consider political factors in its selection process. Be that as it may, this article will conclude by reconciling law and politics in a manner reflective of the practicalities of their interaction in the international accountability process.
2. Political Realities: The Risk of Legal Intervention in Ongoing Armed Conflict
Previous ICL initiatives, such as the Nuremberg and Tokyo International Military Tribunals, or the ad hoc Tribunals for the Former Yugoslavia and Rwanda, were limited to specific territories and crimes and designed to respond to atrocities that were already committed. The ICC is a novel approach in that it has the capacity to intervene in ongoing international conflicts, and potentially prevent further crimes. The justification for such intervention is usually of a consequentialist character. The first being deterrence, in that the fear of punishment will ‘[bring] about development for the respect for the rule of law […] and thereby deterring the commission of crimes.’[3] Expressive retribution similarly aims to allow for the internalisation of norms that will deter would-be atrocity perpetrators, and rather than ‘a desire for revenge, [it is] an expression of the international community’s condemnation of the crimes, which, by way of imposition of a proportionate sentence, also acknowledges the harm to the victims and promotes the restoration of peace and reconciliation.’[4]
That being said, there is evidence that the internalisation of international humanitarian law (IHL) norms does not deter combatants from committing crimes.[5] Moreover, ICC intervention in ongoing armed conflict, in a prosecutorial role, can act as a spoiler to peace negotiations, or the possibility of peace negotiations, because belligerents become ‘personally’ involved. They themselves may be held accountable for their actions in a post-conflict situation and thus are motivated to keep fighting.[6] As highlighted in the introduction, the decisions by the OTP can result in a retaliation by the perpetrator. So rather than deterring future crimes, it could potentially serve the continuity of these crimes by ensuring the conflict is not brought to a close. Similarly, intervention by the ICC could create a false expectation amongst civilians that the ICL will prevent further suffering, in the sense that by intervening it will put an end to the conflict, or at least deter the perpetrator from committing further crimes.[7] Unfortunately, this is rarely the case as legal intervention is about accountability and ending impunity, rather than ending the conflict -- naturally creating a moral hazard when ICL intervenes in conflicts.[8]
3. In Defence of Legal Intervention: Politics by Other Means and Sacred Violence
Considering the above risks, it seems that the OTP should be considerate of political realities when it is deciding which situations to target. Indeed, Article 53(2)(c) of the Rome Statute provides the OTP with a level of discretion: the Prosecutor, taking account of all circumstances, can decide not to investigate or prosecute based on the interests of justice. On the other hand, the ICC is a legal institution and arguably should only take into account factual and legal circumstances under this heading, not political ones.[9] That is not to say that peace considerations are entirely absent from the process: Article 16 of the Rome Statute allows the United Nations Security Council (UNSC) to intervene and defer an investigation or prosecution. This formal separation of the law and politics reflects international law as it is the UNSC that is mandated to maintain and restore peace, rather than the ICC.[10] Thus, arguably, having regard to Article 16, for the OTP to consider political factors such as peace and security would be ultra vires, as the object and purpose of the Statute is to end impunity for international crimes and although the Preamble of the Rome Statute references peace considerations, they are dependent on former.
This statutory separation of ICL and politics under Article 16 is an important consideration for a number of reasons. Most compellingly, ICL should be kept away from the capriciousness of political power so as to ensure that the sacred nature of sovereignty under international law is no barrier to ending impunity and finding justice for victims. The development of individual responsibility for grave breaches of IHL since the Second World War has upended the nature of the international legal framework, whereas historically heads of State enjoyed immunity, the punishment aspect of ICL trials has projected a ‘no-impunity-norm.’[11] Putin’s arrest warrant is clear evidence of this. At least in principle, no longer are the most powerful beyond the reach of justice. The immunity genocidal leaders once enjoyed for political violence is now in the ‘domain of ordinary thuggery’ and ‘[w]hat was once called Kriegsraison we now label war crime. Massacres and invasions in the name of raison d’état are now called crimes against humanity and aggression. In place of sacred violence, we now say “torture” and “genocide”.’[12] Moreover, the trials themselves are a form of norm projection that airs to the world that ‘heinous crimes [are not] merely politics by other means’ and ‘communicate the inherent criminality of political violence against the innocent.’[13] Moreover, by pursuing cases without consideration of the political popularity of a specified situation, it maintains the ICC’s reputation as an entirely independent entity and ensures that human rights are beyond the whims of political power.[14]
In sum, the natural development of ICL has been to strip indivudal people of the legitimacy to commit atrocities and refusing to entertain the politics of war as perpetrators would historically hide under the protection of outdated international legal norms. This development places the protection of civilians and persons hors de combat well within the reach of objective legal parameters, such that where certain elements are met, a crime is triggered regardless of political popularity. As will be discussed below, enforcing these norms requires a link to politics, but the point made here does not rely on enforcement of norms. Rather, the general criminalisation of jus ad bellum and grave breaches of jus in bello is sufficient as it contributes to the development of favourable social conditions that allow for the a total delegitimisation of illegal warfare.[15] For example, Luban notes that the anti-slavery movement in 18th and 19th centuries transformed moral norms and today it is unthinkable for State to engage in such practices.[16]
4. Alas, the Inseparability of Law and Politics
A key difference between domestic criminal law and ICL is that whereas the former is concerned with individual situations, the latter is concerned with ‘unimaginable atrocities’ that have an impact on the human population as a whole[17] – this is the very foundation of ICL jus puniendi. The desire to end impunity stems from an understanding that atrocities going unpunished foster conflicts and threaten the peace and security of the world.[18] Another key difference is that within domestic systems, the accountability mechanism has the monopoly on violence and can use the State apparatus to enforce the penalty imposed by its judicial arm. The ICC, on the other hand, is entirely dependent on third parties to enforce its decisions. Naturally, this fuses law and politics to a certain degree. The State’s coercive power therefore becomes crucial for the furtherance of the ICC’s determination to end impunity, as without it decisions cannot be implemented. For example, the presence of the International Criminal Tribunal for the Former Yugoslavia initially did not prevent Balkan paramilitary groups from committing atrocities because coinciding political practice was to engage in negotiations and rely on neutral peacekeepers. It was only when those political entities (NATO and the United Nations) decided to use both direct and indirect coercive force against the perpetrator that impunity ended and indicted individuals were surrendered.[19] Of course, the reality is much different in the context of Ukraine as ICC allies cannot use direct military force against Russia with its endless nuclear threats, and its status as a permanent member of the UNSC. In such a case, the presence of sanctions and indirect military aid is the only support States can, at this point, lend to the ICC and perhaps the future ad hoc tribunal that supports the OTP’s work.
5. Conclusion
All that being said, considering the consequences that intervention, legal or political, can have on civilians it is crucial that their voices are heard in any decision to intervene. In Ukraine, it is abundantly clear that there is support for continuing the fight against Russia.[20] Moreover, Ukrainian Nobel peace laureate Oleksandra Matviichuk said that she believes ICL investigations into Russian war crimes will have a “cooling effect” on combatants, such that they will understand that Putin’s regime has an end date and they may be held to account for their crimes.[21] Of course, there is no way to prove whether this will manifest and, as mentioned above, there is evidence that knowledge of IHL rules does not translate to compliance. On the other hand, Russian soldiers in Ukraine are said to be highly demoralised and are often confused as to what they are fighting for.[22] Under such conditions, it is reasonable to believe that they would be more likely to weigh the cost and benefits of committing atrocities, compared with highly motivated and hate-or-vengeance-filled soldiers.
The aim of this article has been to highlight the conflict between legal intervention (such as international justice mechanisms) and political intervention (such as peace negotiations) in ongoing armed conflict. This aim was not to suggest that justice is more favourable than peace, or vice versa, but merely to highlight their interplay in international justice. The ultimate goal of ICL is to end impunity for international crime, and as a result, to deter crimes with the imposition of a no-impunity norm; whereas the ultimate goal of political intervention is to bring an end to the conflict. Evidently, both interventions serve the same purpose – alleviating the suffering caused by war – but through different methods and aims. As such, to answer the question posed in the introduction, while it is submitted that OTP should not consider political factors when targeting situations, that is the role of the UNSC and regional political organisations, it is important that legal and political actors remain in close contact.
[1] Al Jazeera, ‘Russian attacks continue after ICC arrest warrant for Putin’ (Al Jazeera, 18 March 2023) <https://www.aljazeera.com/news/2023/3/18/russian-attacks-continue-after-icc-arrest-warrant-for-putin> accessed 19 March 2023.
[2] Carl Von Clausewitz, On War (Princeton University Press, 1976) 87.
[3] Prosecutor v Momir Nikolić (Sentencing Judgement) ICTY-02-60/1-S (2 December 2003) para 89.
[4] Prosecutor v Al Mahdi (Judgement and Sentence) ICC-01/12—01/15 (27 September 2016) para 67.
[5] International Committee for the Red Cross, ‘Country report Bosnia-Herzegovina’ (November 1999) <https://www.icrc.org/en/doc/assets/files/other/bosnia.pdf> accessed 28 March 2023. The report found that even where combatants were highly aware and supportive of the Geneva Conventions, it did not prevent atrocities because “nationalist passion and hatred” trumped any IHL considerations.
[6] Julia Reilly, ‘The Prosecution Paradox: How the International Criminal Court Affects Civil War Peace Negotiations’ (University of Nebraska Political Science Department -- Theses, Dissertations, and Student Scholarship 2019) page 63 <https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1053&context=poliscitheses> accessed 23 March 2023.
[7] Benjamin Schiff, ‘The ICC's Potential for Doing Bad When Pursuing Good’ [2012] 26(1) Ethics & International Affairs 73.
[8] ibid.
[9] Diego Acosta Arcrazo, Russel Buchan and Rene Ureña, ‘Beyond Justice, Beyond Peace? Colombia, the Interests of Justice and the Limits of International Criminal Law’ [2015] 291 Criminal Law Forum 292.
[10] ibid; Article 39 UN Charter.
[11] David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (OUP 2010).
[12] David Luban, ‘After the Honeymoon: Reflections on the Current State of International Criminal Justice’ [2013] 11(3) Journal of International Criminal Justice 505.
[13] ibid.
[14] Rocío Lorca ‘Impunity thick and thin: The International Criminal Court in the search for equality’ [2022] 35(2) Leiden Journal of International Law 421-431
[15] David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal (n 11).
[16] ibid.
[17] Athanasios Chouliaras, ‘The Legitimacy and Effectiveness of International Criminal Tribunals: A Criminal Policy Perspective’ in Nobuo Hayashi and Cecilia M. Bailliet (eds) The Legitimacy of International Criminal Tribunals’ (Cambridge University Press 2017) pp. 116-138.
[18] ibid.
[19] Kenneth A. Rodman, ‘Why the ICC Should Operate Within Peace Processes’ [2012] 26(1) Ethics & International Affairs 59, 62.
[20] RJ Reinhart, ‘Ukrainians Support Fighting Until Victory’ (Gallup, 18 October 2022) <https://news.gallup.com/poll/403133/ukrainians-support-fighting-until-victory.aspx> accessed 23 March 2023.
[21] Jennifer Rankin, ‘Ukrainian Nobel peace laureate calls for special tribunal to try Putin’ (The Guardian, 27 February 2023) <https://www.theguardian.com/world/2023/feb/27/ukrainian-nobel-peace-laureate-oleksandra-matviichuk-calls-for-special-tribunal-to-try-vladimir-putin> accessed 3 March 2023.
[22] Siobhán O'Grady and Anastacia Galouchka, ‘The letters left behind by demoralized Russian soldiers as they fled’ (The Washington Post, 15 September 2022) <https://www.washingtonpost.com/world/2022/09/15/letters-left-behind-by-demoralized-russian-soldiers-they-fled/> accessed 23 March 2023.