The relationship between Russia and the ICC and the US precedent: Do ‘great’ states act alike?

Introduction

On 16^th November 2016 several media outlets announced Russia’s intention to withdraw from the Rome Statute establishing the International Criminal Court (ICC, the Court). Since Russia is not a party to this treaty, the withdrawal they referred to might rather be defined as an attempt to remove the Russian representative’s signature from the ICC Statute. Still, from an international law standpoint, what consequences can arise? A precedent regarding another Permanent Member of the UN Security Council (SC), the US, which has ‘unsigned’ the Statute, could be relevant.[1] This post aims at examining the US precedent and will conclude that all considerations made years ago about it can, mutatis mutandis, be applicable to Russia today. It will be also argued that taking into account the unique object and purpose of the ICC Statute, states’ practice to ‘unsign’ it might not free them from the obligation not to defeat the object and purpose of the Statute.

Russia and the ICC

Russia signed the ICC Statute in 2000, but never ratified it. Some have viewed the withdrawal of the signature as a new signal of a growing aversion of states towards the ICC.[2] Not only have South Africa, Burundi and Gambia stated their intention to withdraw from the ICC Statute earlier this year, but the Philippines has also declared it might do the same. Others have linked such an event to another moment of friction between Russia and the ICC, namely the decision by the Court authorizing an investigation into war crimes and crimes against humanity allegedly committed during the 2008 Russia-Georgia conflict in South Ossetia. Even more importantly, on 14^th November 2016 the ICC Prosecutor, Fatou Bensouda, released her 2016 Report on Preliminary Examination Activities, which states as follows.

The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation. This international armed conflict began at the latest on 26 February when the Russian Federation deployed members of its armed forces to gain control over parts of the Ukrainian territory without the consent of the Ukrainian Government. The law of international armed conflict would continue to apply after 18 March 2014 to the extent that the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation. A determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.[3]

Coming just two days after the Office of Ms Bensouda released this report, the Russian decision to ‘unsign’ the Rome Statute therefore acquires significant political importance.

 

The US precedent

At the 1998 UN Diplomatic conference in Rome, the US asked for an unrecorded vote and voted against the adoption of the ICC Statute.[4] Subsequently, on 31 December 2000, President Clinton decided to sign it. It was, however never ratified by the US Congress. On the contrary, in 2002 the US Under Secretary of State for Arms Control and International Security, Bolton, notified the UN Secretary General of President Bush’s intention to ‘unsign’ the Statute. At the time, the US Administration relied on article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which, in its relevant parts, reads as follows.

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) It has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; (…)

In other words, Bolton’s letter was meant to make the US intention not to become a party to the ICC Statute clear. However, since then, the ICC has been treating the US as a signatory state. In 2010, for example, the US participated in the Kampala Review Conference as an ‘observer state’ and the ICC has reserved this status only to those states that have signed the Statute.[5] Many commentators furthermore argued that, while it was possible for a state to free itself from any obligations arising from a treaty to which it was not a party, according to the VCLT there was not such a thing as the possibility for a state to ‘unsign’ a treaty.

Thus, it seems here unreasonable to depart from such conclusions when it comes to Russia: although in the future they might declare themselves to have ‘unsigned’ the Statute, the signature will still be there. Yet, it might not produce any obligation to cooperate with the Court anymore. But what are the object and purpose of the Rome Statute? Can any state really claim to be free from any obligation to refrain from acts that would defeat such object and purpose?

The object and purpose of the ICC Statute

In April 2016, in its Decision on Defence Applications for Judgments of Acquittal in the case of Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber (V) recalled that ‘[i]n the specific context of the Rome Statute, the Appeals Chamber has held that the purposes of a treaty “may be gathered from its preamble and general tenor of the treaty.” Therefore, the preamble to the Rome Statute must be consulted for the object and purpose of the Statute.’[6]

Thus, it seems here important to recall that in the Preamble, States Parties to the ICC have affirmed ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.’[7] One of the purposes of the ICC Statute, according to paragraph 5 of the Preamble, is in fact to ‘put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.’

Unlike other states,[8] since the US and Russia are two of the UN SC Permanent Members, it is unlikely that they will ever adopt any resolutions requiring them to cooperate with the Court (for instance, in those cases involving their nationals) on the basis of a SC Resolution adopted under Chapter VII of the UN Charter. Indeed, in relation to those cases that have so far been referred to by the UN Security Council, the Court has made clear that no obligation vis-à-vis the Court arise for States not Parties that are not expressly mentioned in the relevant Resolution. This, of course, would regard also those States that have signed the Statute but for a reason or another but have never ratified it. Thus, once they notify their intention not to become a State Party, US and Russia might be considered free from any obligations to cooperate with the Court,[9]including, for instance, the obligation to surrender their nationals who are accused of having committed one of the ‘most serious crimes of concern to the international community as a whole’ to which the Preamble refers and that, therefore, constitute the object of the treaty.

However, States Parties to the ICC do have a duty to cooperate with the Court, so that if Russian nationals happen to be on their territory, they might be arrested and surrendered to the Court.[10] This might turn out to be particularly relevant in the situation relating to Georgia, as well as with respect to Ukraine, should the Prosecutor decide to open an investigation and be authorized in this sense by the Court. Although Ukraine is not a party to the Statute, on 17 April 2014 and on 8 September 2015 it made two declarations under article 12(3) ICC Statute and, therefore, became equal to any State Party when it comes to its obligations to cooperate with the Court in respect of crimes committed during the periods covered by the two declarations read in conjunction (i.e., since 21 November 2013 on the stipulated territory).

Moreover, looking at the Preamble, and therefore at the object and purpose of the Statute, it is difficult to claim that Russia (as well as the US or any other State not Party) could consider itself free to leave unpunished those among its nationals or, alternatively, who find themselves in Russian territory, allegedly responsible for the commission of at least some of the ‘most serious crimes of concern to the international community as a whole’. This seems to find confirmation in the obligation to prevent Genocide (under article I Convention on the Prevention and Punishment of the Crime of Genocide) and punish those responsible for the commission of the acts provided for by article III of the same Convention, which took place within their territory; to punish war crimes, including those committed by states’ own nationals, and crimes against humanity.[11]

Conclusion

Russia’s recent initiative to ‘unsign’ the ICC Statute might have a strong political significance. When it comes to its legal implications, this might be a Russian attempt to free itself from any obligations to cooperate with the Court in the future, especially with regard to the situation in Georgia and, possibly, in Ukraine. However, first, looking at the US precedent, it appears that the ICC may keep considering Russia a signatory state; second, States Parties will still have their own obligation to cooperate with the Court which may result in the arrest and surrender Russian nationals if abroad; third, even if Russia might be free not to cooperate with the Court, this will not be equal to a right to act and defeat the object and purpose of the Rome Statute. On the contrary, Russia might well be considered obliged to punish those having committed genocide, war crimes and/or crimes against humanity in any case.

[1] Along with the US, Israel and Sudan have also notified to the UN Secretary General their willingness not to become a Party to the Statute. Yet, Israel has been treated as an ‘observer state’ within the meaning of Rule 1 of the ICC ASP Rules of Procedure (see infra fn 5). Since 2005 the UN SC has triggered the ICC jurisdiction on crimes committed in Sudan, which therefore cannot provide a relevant precedent for the purposes of this post.

[2] BBC, ‘Russia withdraws from International Criminal Court treaty’ (16 November 2016) <http://www.bbc.co.uk/news/world-europe-38005282> (accessed 18 November 2016).

[3]The Office of the Prosecutor of the ICC, Report on Preliminary Examination Activities 2016 (14 November 2016) at 158 [emphasis added].

[4]William A. Schabas, ‘United States Hostility to the International Criminal Court: It’s All About the Security Council’ 15 (2003) EJIL 701, 708.

[5] See, Rule 1 of the ICC Draft Rule of Procedure of the Review Conferences (May 2010), or Rule 1 of the Rules of Procedure of the Assembly of States Parties.

[6]Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on Defence Applications for Judgments of Acquittal, 5 April 2016, at 438.

[7]ICC Statute, Preamble, paragraph 4 [emphasis added].

[8]See UN Doc. S/RES/1593 (2005) and S/RES/1970 (2011).

[9]See articles 86, 87, 89, and 93 ICC Statute.

[10]Ibid.

[11] Nicholas Michel and Katherine Del Mar, ‘Transitional Justice’ in A. Clapham and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (OUP 2014) 864-865.