The International Criminal Court may set its sights on Ukraine.
The ICC’s registrar has just accepted a request from the government of Ukraine that grants the ICC jurisdiction to investigate alleged crimes committed on its territory between November 21, 2013 and February 22 2014. Ukraine is not a member of the International Criminal Court, but according to the ICC’s bylaws, a government can invite the court to investigate alleged crimes on an ad hoc basis. This is what happened today.
So does this mean that those responsible for the deaths of hundreds of protestors may wind up in The Hague? Not quite. It is now up to the prosecutor to decide whether or not this situation warrants the attention of her office. To that end, prosecutor Fatou Bensouda must consider whether the information available to her “establishes reasonable basis to open an investigation.” If not, the prosecutor can simply decline to take the case. If so, she has to convince a judge to issue warrants or summonses to the accused. This process can take a long time.
The prosecutor — theoretically, at least — should be driven exclusively by evidence and law, and definitely not politics. If the evidence leads to an investigation, and if that investigation leads to arrest warrants, then so be it. The geopolitics of the consequences of an investigation are not really the prosecutor’s concern.
But the politics of this are interesting! There are currently eight situations before the court: Darfur, Uganda, Libya, Mali, CAR, DRC, Cote D’Ivoire, and Kenya. Notice a pattern? So do the court’s detractors, which accuse it of being a European-based court that only goes after Africans. For the prosecutor, this is sort of a golden opportunity to open a case outside of Africa and prove the critics wrong.
On the other hand, the geopolitics of this particularly situation are sort of fraught. The court’s core political and financial support comes from Western Europe, which probably would not mind seeing the ICC take on this case. Russia and the USA are not members of the court — though under the Obama administration, the USA has cooperated with the court and supported its work. Russia has been fairly indifferent to the ICC.
The fact that the Ukrainian government requested the ICC investigation suggests that they believe the investigation could lead to the arrest or indictment of pro-Russian (or even Russian) leaders. The thing is, the ICC has no police force. It relies on governments to arrest and extradite suspects. If the ICC hands down warrants, one would imagine that the suspects would flee to Russia. And if that happens, the ICC would be in the very unenviable position of having a member of the UN Security Council harboring fugitives.
Such a scenario is not implausible. It would also be a disaster for the ICC, which relies on the very same Security Council to help compel countries like Sudan and Libya to turn over suspects and cooperate with the court. One would imagine that Russia’s relationship with the ICC would go from indifferent to hostile. That would undermine the court’s work around the world.