Is the ICC Still Relevant? Not So, Says Brazil’s Lula da Silva–and He Is Not Alone

JUSTICE, 18 Dec 2023

Uriel Araujo | BRICS Information Portal - TRANSCEND Media Service

14 Dec 2023 – On 4 Dec, Luis Inácio Lula da Silva, the President of Brazil (which has taken G20 presidency) said, after meeting with German Chancellor Olaf Scholz in Berlin, that he will invite Russian President Vladimir Putin to the G20 Summit that will take place in Brazil. Previously, Lula da Silva had stated Putin should not worry about being arrested, should he visit Brazil, despite the county’s membership in the International Criminal Court (ICC). The Brazilian leader later withdrew this promise but has maintained the invitation, thereby prompting a political controversy about the court in the Latin American country. On March 17, the Hague-based court issued a controversial arrest warrant for both Maria Alekseyevna Lvova-Belova, Presidential Commissioner for Children’s Rights (of Russia) and for Putin, a ruling that has been praised by US President Joe Biden, among others.

Whenever people hear about the “International Crime  Court”, they often assume it is some essential part of the fabric of international law. The court’s name, however, should not be taken at face value. It is true that about 124 countries are ratified state parties to the Rome Statute, the treaty that established the ICC. It is also true, though, that 30 others have not yet ratified it, some of which have no intention of doing so. China, Russia, the US, India, Pakistan, Indonesia, and Turkey are not states parties – no Great Power in fact is a party to the ICC, unless one considers France, the UK and Germany as such. South Africa and the Philippines have already given formal notice of their intention to withdraw from the Statute, and so have Gambia and Burundi. Many other countries are considering doing so – which is not surprising at all.

Consider this: having been formed in 2002, with the exception of the Putin/Lvova-Belova warrant and the investigation on Rodrigo Duterte (former President of the Philippines), all other cases thus far launched by the court have been against Africans, including prominent regional leaders such as Muammar Gaddafi of Libya. It is no wonder then that over the last years the African Union has often accused the ICC of being biased against the continent. William Schabas (professor of international law at Middlesex University) summarized it: “Why prosecute post-election violence in Kenya… but not murder and torture of prisoners in Iraq or illegal settlements in the West Bank? Tony Blair, the former British prime minister and George W. Bush, the former American president… were never indicted by the ICC… in spite of the ample evidence available to justify legal proceedings against the two.”

(Image by Ricardo Stuckert/Presidência da República)

In September, Brazil’s aforementioned President Lula da Silva had already questioned the value of a Hague-based court that does not include the US, Russia, or China. In his reasoning, the ICC cannot be that relevant, considering the fact that major powers do not submit themselves to its jurisdiction. Similarly, Flavio Dino, then the Brazilian Minister of Justice, described the court as “unbalanced”, saying that “it makes no sense to have a court that is only to judge some and not others”, even adding that his country’s Ministry of Foreign Affairs could debate Brazil’s participation in the Statute.

As shown, Lula da Silva is not the only who has doubts about the ICC and the controversies pertaining to the court have been around for a long time, way before its arrest warrant for Putin. Take the United States for instance. The US and the ICC have a peculiar record, to say the least. Back in 2002, President George W. Bush famously signed into law the so-called “Hague Invasion Act”, which in fact authorized the use of military force to liberate any American citizen being held by the ICC. More recently, it was described as a “kangaroo court” by former US Secretary of State Mike Pompeo when President Donal Trump authorized sanctions against an ICC investigation into US war crimes in Afghanistan. Washington went so far as to threaten to arrest the court’s judges over the same issue.

However, in 2022, S.Res.546, a bipartisan, unanimous resolution by the US Senate (agreed to without amendment) came into being to support the ICC, which is quite remarkable, considering all the aforementioned record. It would seem the US is quite ready to applaud the Hague court, as long as it only persecutes its geopolitical rivals and never points its finger to any American war criminal – in this case Washington will literally threaten the court and its judges with arrest and invasion.

The ICC is predominantly funded by European states. The United Kingdom, France, Germany, Italy, Australia, Spain (and also Japan) have long been among the court’s top 10 contributors. Moreover, it also receives contributions from private donors, such as large corporations. All of that throws some doubts on its credibility and impartiality as an international organ often accused (justifiably so) of having a pro-Western bias.

I wrote before about the dangerous trend of employing international lawfare as a geopolitical tool – as seen in Germany, where local courts have been invoking “universal jurisdiction” (over some crimes) to convict Syrian authorities accused of having committed torture in Syria. This development was applauded by many, including Wolfgang Kaleck, founder of the European Center for Constitutional and Human Rights (ECCHR), who described it as a step towards bigger  things.

One could very well ask how big it can get. We know that torture and sexual abuse were and have been common place in CIA-operated bases overseas as well as in places such as Guantánamo Bay (Cuba), and Abu Ghraib (Iraq). We also know Biden admittedly authorized the infamous August 29 drone strike in Kabul that killed civilians only. His predecessor Donald Trump in turn ordered the illegal assassination of Iranian General Qassem Soleimani, who was on a peace mission. Even so, it is hard to imagine a top CIA official (or Biden and Trump themselves for that matter) being investigated by a German court – or by the ICC.

From a perspective informed by legal realism and political realism, one could reason that the very way a country’s judicial systems’ “universal jurisdiction” can be exercised is limited by certain conditions regarding political, economic, and military power. The same limitations apply to the ICC. To sum it up, it is about geopolitics as much as it is about international law. The ICC today is a reflection of the inequalities between countries in today’s architecture of international law.

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Uriel Araujo is a researcher with a focus on international and ethnic conflicts.

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