At the dawn of the 21st century, a trend in political development (and beyond) has been observed towards the reduction of national sovereignty and transfer of several control functions to supranational structures, in the context of the march of globalization.

The refraction of this trend in International Law is, obviously, the International Criminal Court (ICC). It was founded “at the pinnacle of triumph” of the unipolar world in 1998, and represents an example of a global governance body in which states’ sovereign rights are minimized.

The ICC was established based on the Rome Statute – the international treaty that took effect in 2002. The court does not belong to the UN system and has nothing to do with the International Court of Justice, which is a United Nations statutory body, though both of them have their seats in The Hague.

The ICC and Africa Africa significantly contributed to the universal recognition of this international establishment. Representatives of 49 African states participated in the diplomatic conference in Rome to adopt the Rome Statute in July 1998. As of 2023, the treaty was joined by 123 states, 33 of which belong to the African continent (comprising the largest geographical group of the member states).

According to the ICC’s website, 20 years into the launch of the ICC and with thousands of lawsuits filed from all over the world, the Court has ‘probed’ 31 cases, with all of those prosecuted being Africans. Seventeen situations are being ‘investigated’, 10 of which refer to African countries. Three cases are under ‘preliminary examination’ with two involving African states.

It is against this background that relationships between the ICC and Africa began to sour: the ICC embarked on what many experts considered “selective and often unjustified acts of persecution on the African continent.” On February 1, 2017, the African Union issued a resolution, based on a decision taken the day before, encouraging member nations to withdraw from the ICC.

The motion was passed after a discussion on the matter at the annual AU summit meeting in Addis Ababa, Ethiopia. The reason for the movement to withdraw is that many African governments believe the ICC has unfairly targeted African leaders, undermining the sovereignty of African states. According to the resolution, the AU would discuss ICC reform with the United Nations Security Council. For several years, the AU has raised concerns over the ICC’s procedures.

The AU sought procedural amendments to the Rome Statute as early as 2010. Researchers widely believe that the ICC implements the concept of “universal jurisdiction” in Africa, serving as an unconstrained force for external intervention. Many African states’ representatives have argued that the ICC is a “threat to the sovereignty, peace, and stability of African states” and a “colonial institution disguised as international justice.”

Double standards

Does the ICC only prosecute the Global South, or does it administer justice in all the countries across the globe? (Spoiler: first and only ICC’s attempt to investigate into US’ war crimes ended in nothing.)

The US doesn’t recognize ICC’s jurisdiction as it isn’t a member of the ICC Statute. It signed the treaty back in 2000 but already in 2002 revoked its signature fearing possible prosecution of the US nationals. Moreover, in 2002 ‘American Service-Members’ Protection Act’ was passed in the US aimed at
shielding US officials against criminal prosecution by the ICC.

The Act gives the US President power 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” which does not rule out even use of military force. That is why the bill was a.k.a. ‘Hague Invasion Act.’

The year 2018 witnessed an unprecedented standoff between the ICC and the US administration, regarding a possible investigation into war crimes committed by the US military and CIA in Afghanistan. US officials, however, threatened the court with retaliation should it proceed against any American.

“We will not cooperate with the ICC. We will provide no assistance to the ICC. We certainly will not join the ICC. We will let the ICC die on its own. In secular terms we don’t recognize any higher authority than the US constitution,” then White House National Security Advisor John Bolton said.

“The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.

“We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system,” he added.
“We will do the same for any company or state that assists an ICC investigation of Americans,” he said.

These statements were fully implemented.
Needless to say that the ICC bowed to the US pressure and shifted the focus of the investigation from the US military to Al-Qaeda and ISIS. After all, the ICC judges are only human. Who of them would want to spend the rest of their lives under the US sanctions?

No wonder the reputation of the ICC suffered consequences of that scandal, rightfully raising questions about the court’s credibility. If it was established to implement the principle of inevitability of responsibility then why does it make exceptions for anyone?

There’s no other authority in the entire globe that has undermined the ICC’s reputation more than the US. Nonetheless, it was found useful by the US as an instrument of coercion against independent states which, from the US perspective, pursue ‘wrong’ policies. No wonder Joe Biden of the US hailed the
issuance of an ‘order’ for President Putin by the ICC.

Mockery of justice

The story of the ICC’s so-called “arrest warrant” for Russian President Vladimir Putin is instructive for the entire international community. Because this is a story about a political show and opportunistic justice in the interests of the “Golden Billion.”

Apart from the fact that the charges laid by the court are trumped-up, for Russia as well as other non-State parties, the ICC Statute creates no obligations without Russia’s consent (as per article 34 of the Vienna Convention on the Law of Treaties, 1969). With the ICC not being part of the UN system, in Russia the court’s decisions, including “warrants,” are considered legally null and void.

Besides, under international law heads of states and governments as well as ministers of foreign affairs enjoy absolute immunity from the criminal jurisdiction of other states (while other officials enjoy functional immunity – i.e. in respect of acts performed in the course of their duties).

Interestingly, the process of the approval of the so-called “warrant” itself was accompanied by internal machinations. As follows from the ICC press release, the ICC prosecutor submitted an application for arrest warrants to Pre-Trial Chamber II on February 22, 2023. While on February 21, a PTC judge from the Democratic Republic of the Congo was hastily replaced with a representative of Costa Rica.

Moreover, it was reported by the media that exactly the day before the prosecutor applied to the PTC for the arrest warrants Prosecutor Karim Khan’s brother, Imran Ahmad Khan, was released from prison, where he was serving a sentence for sexually assaulting a minor. Essentially, ICC’s illegitimacy stems from its openly selective justice and lack of impartiality expected from an international court: for instance, facts of war crimes committed by Ukraine military are well-known and documented, yet the ICC prosecutors pretend not to notice them.

For now, only the black-and-white perception of the situation in Ukraine imposed by the mainstream media saves the ICC from rightful criticism of independent politicians and scholars. Yet the logic applied by the court and its obvious disregard to international law threaten all nations with usurpation of the authority by the ICC to punish and pardon at its sole discretion, regardless of their membership in the Rome Statute and the opinion of the UNSC.

From colonialism to neo-colonialism That is what has brought numerous experts around the globe to understanding that the ICC in its current form is nothing more than a tool for meddling in sovereign governments’ domestic affairs and a “neo-colonialist instrument in the ands of the West”.

Since the adoption of the Declaration on Granting of Independence to Colonial Countries and Peoples in 1960, about 100 countries have become UN members. However, historical experience has demonstrated that the breakdown of colonial empires and the formal declaration of political sovereignty does not immediately result in complete independence, nor does external exploitation cease.

With the reduction of the power functions of the national state and the narrowing of the borders of sovereignty, the transfer of many decision-making rights and control from the national to the supranational level, the increasing transparency of borders, and the freedom of movement of people and capital, the previous format of coloniality is eroding, while retaining its dual essence–exploitation and lack of freedom.

The collective West is imposing a neo-colonial model based on the newest information technologies and mass media upon the rest of the world in a strive to preserve its fading hegemony.

Mikhail Kosarev is the spokesperson for the Russian Embassy in South Africa. 

Sikho Matiwane is an entrepreneur, diplomatic commentator and columnist.