Russia Cut Ties with International Criminal Court

a. Facts
A version of this article appears in print on November 17, 2016, on Page A6 of the New York edition with the
headline: Russia Cuts Ties With International Criminal Court. Order Reprints| Today's Paper

https://www.nytimes.com/2016/11/17/world/europe/russia-withdraws-from-international-criminal-court-calling-it-one-
sided.html

MOSCOW — President Vladimir V. Putin of Russia instructed his government

on Wednesday to withdraw from the treaty that created the International
Criminal Court, while his government assailed the tribunal as “ineffective and
one-sided.”

The action was largely symbolic, because Russia — like the United States —
has not ratified the treaty and is not under the court’s jurisdiction. But it was
another setback for the fairly young court, which handles cases of war crimes
and crimes against humanity and is an emblem of the international order that
is being shaken by populist revolts across the West.

“Essentially, this is just a gratuitous slap in the face, not a body blow,”
said Kate Cronin-Furman, a human rights lawyer and political scientist at the
Harvard Kennedy School, who predicted that the election of Donald J. Trump
as president of the United States would lead to more harm for the court.

Burundi, Gambia and South Africa moved recently to withdraw from the
court, calling it biased because all the people it had convicted so far had been
Africans or because, in the case of South Africa, it disagreed with the court’s
mandate to prosecute any individual, including a head of state.

Zeid Ra’ad al-Hussein, the United Nations high commissioner for human
rights, tried on Wednesday to rally support for the court. “A new trend of
isolationist and unprincipled leadership is building up across the world,” he
said in an address to the General Assembly of the court’s member countries in
The Hague. “Renewed attacks on the court may well be in the offing.”

Mr. al-Hussein has sharply criticized the divisive and racist rhetoric of several
European right-wing politicians. Last month, he said that Mr. Trump
would “without any doubt” be a threat to global stability if the president-elect
stood by his campaign pledges to bar Muslims from entering the United
States, to deport millions of undocumented immigrants and to endorse the
use of torture.

“In a world that seems increasingly adrift, the turmoil yet to face humanity
may be far greater than any challenge we have yet experienced,” Mr. al-
Hussein said on Wednesday. “We face a choice. We can safeguard our
societies by standing firm on the principles of justice which anchor this
institution. Or we can cast away the moorings of law laid down to save the
world from horror.”
In announcing Russia’s withdrawal from the treaty, the Russian Foreign
Ministry said the court had failed to live up to expectations that it would serve
as an impartial and authoritative arbiter of international law.

This week, the court’s top prosecutor called Russia’s annexation of Crimea an
“ongoing state of occupation,” a judgment affirmed by a United Nations
human rights committee, which reiterated the world body’s commitment to
Ukraine’s sovereignty over the Black Sea peninsula.

The ministry cited the court’s approach toward Russia’s brief war with
Georgia in 2008. The court has said it would investigate possible war
crimes in Georgia — which is a member of the court — by all parties,
including Russian armed forces.

An even sharper rebuke to the Russian government came on Monday, when

the court’s chief prosecutor, Fatou Bensouda, said in a report that “the
situation within the territory of Crimea and Sevastopol factually amounts to
an ongoing state of occupation.”

Russia has insisted that its capture of Crimea was warranted by the legitimate
popular vote of the Crimean people in a referendum.

The prosecutor’s report also said that the information available points
to Russia’s direct military involvement in the armed conflict in eastern
Ukraine, something that the Russian authorities have denied repeatedly.

“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 report said.

Russia might also be concerned about calls by Western officials,

including Secretary of State John Kerry, to have the court look into the
bombing campaign in Syria.

The court is the world’s first international tribunal with permanent

jurisdiction to prosecute war crimes, genocide, crimes against humanity and
the crime of aggression. It was founded in 1998, when 120 countries adopted
the Rome Statute, and began operations in 2002. The court has headquarters
in The Hague.

Mr. Putin directed Russia to sign the Rome Statute in 2000, but Parliament
did not ratify it. The United States never ratified the Rome Statute, though
the Obama administration has cooperated with the court’s proceedings.

Ms. Bensouda, the chief prosecutor, said this week that she was considering
an investigation into allegations of war crimes, torture and related treatment
 by American military forces and intelligence agencies in Afghanistan, raising
the prospect of a confrontation with the Trump administration.

“Given that the I.C.C. is a relatively young institution, and the norms
surrounding it are not firmly entrenched, the loss of American leadership on
accountability for mass atrocities could be profoundly damaging,” said Ms.
Cronin-Furman, the human rights lawyer.

Vladimir Frolov, a scholar of international relations, called Russia’s move a

“symbolic gesture” prompted by Ms. Bensouda’s report on Crimea.

“At the time when Russia signed the Rome Statute in 2000, it wanted to be a
part of the modern world,” he said. “Now it doesn’t.” He added that he
believed that many of Russia’s actions in Syria could “potentially be subject to
an investigation by this court.”

WHY RUSSIA JUST WITHDREW FROM THE ICC BY ROBBIE GRAMER

| NOVEMBER 16, 2016, 10:18 AM

http://foreignpolicy.com/2016/11/16/why-russia-just-withdrew-from-icc-putin-treaty-ukraine-
law/

The International Criminal Court has had a rough year, and Russia just made things worse. On
Wednesday, Moscow announced it was cutting ties with the international tribunal, withdrawing
its signature from the founding treaty.

“The court did not live up to the hopes associated with it and did not become truly
independent,” Russia’s foreign ministry explained, after President Vladimir Putin issued
a decree announcing his country’s intentions to “no longer be a party” to the ICC’s founding
treaty, the Rome Statute.

The timing is no coincidence. On Monday, the ICC’s lead prosecutor, Fatou Bensouda, issued a
report saying for the first time that the conflict in Ukraine amounts to an armed conflict between
Russia and Ukraine. “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,” the report said. It goes on to say that Russia’s annexation of Ukrainian
peninsula Crimea “factually amounts to an on-going state of occupation.” Putin clearly wasn’t
too thrilled about that, as it throws cold water on his official narrative Russia has no troops in
Ukraine and Crimea voluntarily joined Russia in a free and fair referendum — a narrative pretty
much everyone in the West and Kiev says is false.

Russia first signed the Rome Statute in 2000 but never ratified the treaty for the Netherlands-
based international court that investigates war crimes, genocide, and crimes against humanity
when national courts fall short.

Withdrawing from the ICC’s treaty has become en vogue lately. In the past two months,
Burundi, Gambia, and South Africa all withdrew from the Rome Statute, citing alleged bias
against African countries. The ICC currently has 10 ongoing investigations, of which nine are in
Africa and one in Georgia. Uganda, Kenya, and Namibia have also signaled they are considering
pulling out of the ICC.

“The ICC withdrawals risk becoming a bargaining chip by countries looking to make the world
safer for abusive dictators,” said Elizabeth Evenson of Human Rights Watch. “Opting out or
crippling the ICC’s ability to try sitting officials will only curtail justice for victims of the worst
crimes,” she added.

Putin also could’ve had Syria in mind when he issued his decree; Russia has been accused of war
crimes and ‘barbarism’ for its heavy-handed military intervention in Syria. And it just launched
a new offensive in the war-torn country this week, which could have opened up to new ICC
scrutiny.

The ICC doesn’t play favorites, however. As Foreign Policy first reported on Oct. 31, the court is
also poised to investigate the United States for war crimes in Afghanistan. The United States
first signed the ICC treaty under President Bill Clinton, but his successor George W. Bush
revoked the signature over concerns that ICC prosecutions could turn political and unfairly
target Americans.

Russia Withdraws Support For International Criminal Court

November 16, 2016

https://www.npr.org/sections/thetwo-way/2016/11/16/502296321/russia-withdraws-support-for-international-criminal-
court

Russia is withdrawing its support for the International Criminal Court after the court
released a report accusing Russia of war crimes when it seized Crimea from Ukraine in
2014.

The move follows last month's announcements by three African nations — Burundi,
Gambia and South Africa — that they intend to withdraw from The Hague-based court,
alleging it is biased.
A statement on the Russian Ministry of Foreign Affairs' website announced "the intention
not to become a party to the Rome Statute of the International Criminal Court." Unlike
the three African countries, Russia signed the treaty establishing the court but never
formally ratified the accord, so the withdrawal of its signature is largely symbolic.
The ICC report alleges that the annexation of the Crimean Peninsula "amounts to an
international armed conflict between Ukraine and the Russian Federation."

"This international armed conflict began at the latest on 26 February [2014] 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 report
continues.

According to Amnesty International, more than 9,000 people have died in eastern Ukraine
since early 2014.
Among the events listed in the ICC investigation is the shooting down of a commercial
jetliner in July 2014. The Malaysia Airlines plane carrying 298 people over eastern
Ukraine was shot down by a Russian missile that had been transferred into rebel-held
eastern Ukraine, and the launcher for which was returned to Russia after the shooting, a
Dutch-led team of international investigators concluded earlier this year.
Kremlin spokesman Dmitry Peskov told Interfax-Ukraine that he disagrees with the ICC's
characterization of what happened in Crimea as an armed conflict.
"Certainly, this wording absolutely contradicts the reality, it contradicts our position,
and, what counts most, it contradicts the position expressed in a referendum by the
citizens of Crimea, when they decided to become part of the Russian Federation," he
told the news agency.

Peskov was referring to a 2014 referendum in which the Kremlin said the majority of
Crimeans voted to join Russia. As The Two-Way has reported, the U.N. General Assembly
rejected the results of the referendum, saying it had "no validity."
The U.S. and Europe have responded to Russia's annexation of Crimea with economic
sanctions making it more difficult for Western banks and companies to do business with
Russia.
The same ICC report at issue in Russia's decision to withdraw also notes the court's
investigation into alleged abuses by both the U.S. and the Taliban in Afghanistan.

The report alleges that "members of US armed forces appear to have subjected at least
61 detained persons to torture, cruel treatment, outrages upon personal dignity"
between 2003 and 2014, and that "members of the CIA appear to have subjected at least
27 detained persons to torture, cruel treatment, outrages upon personal dignity and/or
rape," between 2002 and 2008.

State Department spokeswoman Elizabeth Trudeau said the U.S. doesn't believe an ICC
investigation is "warranted or appropriate," according to The Associated Press.

The U.S. is not a member of the ICC.

Russia withdraws signature from international criminal

court statute
Wednesday 16 November 2016

Tribunal has not lived up to hopes of international community, Moscow says,

day after ICC report on Crimea annexation
https://www.theguardian.com/world/2016/nov/16/russia-withdraws-
signature-from-international-criminal-court-statute

Russia has said it is formally withdrawing its signature from the founding
statute of the international criminal court, a day after the court published a
report classifying the Russian annexation of Crimea as an occupation.
The repudiation of the tribunal, though symbolic, is a fresh blow to efforts to
establish a global legal order for pursuing genocide, war crimes and crimes
against humanity.

In recent months, three African countries who were all full members of the
ICC – South Africa, Burundi and Gambia – have signalled their intention to
pull out, following complaints that ICC prosecutions focused excessively on
the African continent.

The Russian foreign ministry made the announcement on Wednesday on the

orders of the president, Vladimir Putin, saying the tribunal had failed to live
up to hopes of the international community and denouncing its work as “one-
sided and inefficient”.

Russia signed the Rome statute in 2000 and cooperated with the court, but
had not ratified the treaty and thus remained outside the ICC’s jurisdiction.
This means that the latest move, though highly symbolic, will not change
much in practice.

“This is a symbolic gesture of rejection, and says a lot about Russia’s attitude
towards international justice and institutions,” said Tanya Lokshina of Human
Rights Watch (HRW). “On a practical level it will not make much difference,
but it is a statement of direction: it shows that Russia no longer has any
intention of ratifying the treaty in future or of cooperating with the court.”

In January, the Russian foreign ministry said it would reconsider its attitude
to the court after rulings on the 2008 war between Russia and Georgia.

At the time, the foreign ministry spokeswoman, Maria Zakharova, said:

“Russia stood at the origins of the ICC’s founding, voted for its establishment
and has always cooperated with the agency. Russia hoped that the ICC will
become an important factor in consolidating the rule of law and stability in
international relations.

“Unfortunately, to our mind, this did not happen. In this regard, and in the
light of the latest decision, the Russian federation will be forced to
fundamentally review its attitude towards the ICC.”

On Tuesday, the court, which is based in The Hague, published a report that
recognised the annexation of Crimea as a military conflict between Russia
and Ukraine, and classified it as an occupation.
“According to information received, the situation in the Crimea and
Sevastopol is equivalent to the international armed conflict between Ukraine
and the Russian federation,” a preliminary report from the ICC prosecutor
Fatou Bensouda stated.

“The Russian federation employed members of its armed forces to gain control
over parts of the territory of Ukraine without the consent of the government of
Ukraine.”

Russia has insisted that Crimea voluntarily joined Russia after a referendum,
but international observers say the referendum was hastily organised, did not
meet international standards, and was conducted as Russian troops swept
through the peninsula. Having initially denied vehemently that Russian troops
were involved in the takeover, Putin later admitted it.

Russia may also be concerned about ICC jurisdiction in Syria, where its forces
have been repeatedly accused of carrying out war crimes in recent months.
HRW and other organisations have called for the ICC to investigate events in
Syria.

The ICC has struggled to obtain widespread international acceptance. The US,
India and China as well as most Middle Eastern states have declined to ratify
the Rome statute which established the court.

About 120 countries, mainly smaller states, have ratified the treaty. The UK is
a member of the ICC. The resurgence of nationalist politics, apparent in Brexit
and Donald Trump’s presidential election victory, suggests the tide may be
turning against international legal institutions.

A spokesperson for the ICC said on Wednesday: “Membership of the Rome

Statute is a voluntary and sovereign decision which is the prerogative of all
States. Russia signed the Rome Statute in 2000 but did not ratify it and is not
a State party. The ICC is respectful of each States’ sovereignty.

“The support of the international community is necessary for the ICC to fulfil
its independent and impartial mandate to help end impunity for the
perpetrators of genocide, crimes against humanity and war crimes, provide
justice to the victims of such crimes and contribute to the prevention of future
atrocities.”

Speaking on Wednesday at the annual assembly in The Hague of states parties

signed up to the Rome Statute, Fatou Bensouda, the court’s chief prosecutor,
said she deplored recent withdrawals from the Rome Statute. “Any act that
may undermine the global movement towards greater accountability for
atrocity crimes and a ruled-based international order in this new century is
surely – when objectively viewed – regrettable,” she said.

The ICC’s president, Judge Silvia Fernández de Gurmendi, who is an

Argentinian, said: “The court has continued to do the work for which it was
created and has made significant achievements in addressing crimes of
concern to the international community as a whole such as the use of child
soldiers, sexual violence in conflict, attacks on civilians and the destruction of
cultural property.

International criminal justice, she added, is “a long-term project” and should

remain a top priority “in order to bring perpetrators of crimes to justice and
protect victims across the world equally”.

Mark Ellis, director of the International Bar Association, said:“Russia’s

decision to ‘withdraw’ its signature from the Rome Statute will have little or no
impact on the court. Contrary to the government’s statement, Russia has never
engaged with the court in any meaningful way and, in fact, has violated the
prohibited crimes provisions of the Statute through its military actions in both
Georgia and Ukraine. The more serious threat to the [ICC] is the withdrawal of
African countries. Unless this alarming tide can be reversed, the court’s own
legitimacy will be in peril.”

Why Russia withdraws from the International Criminal Court

Nov 24, 2016Michael Newcity
http://www.russia-direct.org/opinion/why-russia-withdraws-international-criminal-court

Headlines around the world on Nov. 16 announced that Russia was withdrawing from
the International Criminal Court (ICC). “Russia Cuts Ties With International Criminal
Court, Calling It ‘One-Sided,” declared the New York Times headline, while Al Jazeera’s
website ran its story under the headline “Russia pulls out from International Criminal
Court” and CNN’s banner stated “Russia quits International Criminal Court, Philippines
may follow.”
Russia’s announcement — coming on the heels of recent announcements by several
African countries that they were withdrawing from the ICC and a threat by President
Rodrigo Duterte of the Philippines that his country might withdraw as well — was cast
as a major existential threat to the ICC. A deeper look at the Russian action, however,
reveals that its significance is not nearly as great as these headlines imply.
The current controversy was set in motion by the release of a statement from the
Russian Foreign Ministry announcing that Russian President Vladimir Putin had signed
a decree to the effect that Russia did not intend to become a party of the 1998 Rome
Statute of the International Criminal Court, the international treaty that establishes and
defines the work and powers of the ICC. This move came two days after the ICC
prosecutor had issued a report on the status of her ongoing investigations, including
those into Russia’s annexation of Crimea and fomenting of conflict in eastern Ukraine in
2014, that was critical of those actions.
While the African countries involved (Gambia, South Africa, Burundi, with perhaps more
to come) and the Philippines are actually parties to the International Criminal Court,
Russia is not. Though Russia signed the Rome Statute of the International Criminal
Court on Sept. 13, 2000 — the first step to becoming a state-party of the ICC — Russia
never ratified the treaty to become a full-fledged member.
Consequently, the recent Russian action merely withdraws Russia’s signature from a
treaty to which it is now no longer a party. In this respect, Russia has joined Israel,
Sudan (before it separated into two states), and the United States as nations that
initially signed the Rome Statute but subsequently withdrew their signatures, indicating
that they no longer intend to ratify the treaty.

Also read: "What's at stake if Russia turns its back on the Council of
Europe"

The irony is that while Russia’s announcement will not revoke Russian status as a
participant in the ICC (it wasn’t a participant to begin with), it also will not rob the ICC of
its jurisdiction over Russian actions in Georgia and Ukraine. So, in a practical, concrete
sense, the Russian action was merely a gesture.
The ICC – an overview

In October 1946 — soon after verdicts were returned against the major Nazi war
criminals at Nuremberg — an international congress in Paris called for the adoption of
an international criminal code defining crimes against humanity and the establishment
of an international criminal court to enforce it.
The idea of an international criminal court (ICC), which had first surfaced after World
War I, was largely abandoned during the Cold War, but was revived in 1989. Proposals
for a permanent ICC gained momentum with the establishment of UN-sponsored ad hoc
tribunals for the Former Yugoslavia (1993) and Rwanda (1994). In 1994, a draft statute
for the ICC was prepared and presented for consideration to the General Assembly of
the United Nations.
Representatives from 160 nations participated in a UN-sponsored conference on the
establishment of the ICC in Rome in 1998. At the conclusion of that conference the
participating states voted overwhelmingly to approve the Rome Statute of the
International Criminal Court, which established the ICC and defined the crimes within
the jurisdiction of the ICC.
Under Article 126, the Rome Statute entered into force after 60 nations had ratified it,
which occurred on July 1, 2002. To date, 124 nations have signed and ratified the Rome
Statute, participating fully in the work of the ICC. Another 31 nations have signed, but
not ratified, the Rome Statute.

Also read: "Three ways Russian foreign policy could change

international law"

According to Article 5 of the Rome Statute, the ICC has jurisdiction that is limited to the
four “most serious crimes of concern to the international community as a whole.” The list
of the crimes includes genocide, crimes against humanity, war crimes, and the acts of
aggression.
The ICC, which is located in The Hague, consists of 18 judges, who are elected by the
nations that are members of the ICC. In addition, the ICC includes an Office of the
Prosecutor, which is an independent and separate organ of the ICC responsible for
initiating and conducting investigations and prosecuting alleged violations of the Rome
Statute. The Prosecutor is also elected by the member states.
ICC investigations of Russia

One of the major responsibilities of the ICC Office of the Prosecutor is the conduct of
preliminary investigations to determine whether a particular situation meets the criteria
specified in the Rome Statute to undertake a formal investigation and, potentially,
prosecution.
Such preliminary investigations may be commenced based on information provided to
the prosecutor by individuals, groups, nations, and intergovernmental or non-
governmental organizations. Cases may also be referred to the ICC by nations that are
parties to the Rome Statute, the UN Security Council, as well as by other states that
have accepted the jurisdiction of the ICC.
On Nov. 14, 2016, the ICC Prosecutor, Fatou Bensouda of Gambia, issued an annual
Report on Preliminary Examination Activities. According to this report, in the period from
Nov. 1, 2015 through Sept. 30, 2016, the Office of the Prosecutor “received 477
communications relating to [possible prosecutions] of which 356 were manifestly outside
the Court's jurisdiction; 28 warranted further analysis; 72 were linked to a situation
already under analysis; and 21 were linked to an investigation or prosecution.”
THE 2016 REPORT ON PRELIMINARY INVESTIGATIONS INCLUDED EXTENDED
DISCUSSIONS OF NINE DIFFERENT SITUATIONS. ONLY ONE OF THOSE —
ALLEGATIONS FROM UKRAINE — IMPLICATES RUSSIA
The 2016 report on preliminary investigations included extended discussions of nine different situations.
Only one of those — allegations from Ukraine — implicates Russia. While Ukraine is not a member state
of the ICC — it signed the Rome Statute in January 2000, but has not ratified it — it was able to formally
accept the jurisdiction of the ICC for purposes of this investigation. Accordingly, the ICC has jurisdiction
over crimes (as defined in the Rome Statute) committed in Ukraine after Nov. 21, 2013, the effective
date of Ukraine’s acceptance of jurisdiction.
The ICC’s preliminary investigation into the situation in Ukraine began on April 25, 2014.
As of the November 2016 report by the prosecutor, the following preliminary list of
alleged crimes has been compiled. It includes harassment of the Crimean Tatar
population; the killing and abduction of at least 10 people in Crimea; the ill-treatment of
individuals who had been detained or abducted in Crimea.
The list also contains the detention of opponents of Russian assimilation of Crimea;
killings as a result of armed hostilities in Eastern Ukraine; destruction of civilian objects
in Eastern Ukraine; the capture, detention, ill-treatment, torture, and disappearance of
people in Eastern Ukraine; and, finally, sexual and gender-based crimes in Eastern
Ukraine.

Also read: "Will Moscow's recent foreign policy moves bury natural
law?"

The Office of the Prosecutor has created a database of over 800 incidents allegedly
occurring in Ukraine since Feb. 20, 2014. The Office of the Prosecutor stated that it will
continue to investigate to determine whether the situation in Ukraine falls within the
jurisdiction of the ICC.
In addition to the preliminary investigation into the situation in Ukraine, the Office of the
Prosecutor has also been conducting an investigation into the situation in Georgia in
2008 to determine if war crimes and crimes against humanity were committed then in
and around South Ossetia. The crimes that are the subject of this investigation all
occurred within the internationally recognized territory of Georgia, which is a party to the
Rome Statute.
This investigation has been underway since August 2008. The preliminary investigation
has been completed and in January 2016 a Pre-Trial Chamber of the ICC held that
there was a “reasonable basis to believe that crimes within the jurisdiction of the Court”
were committed on the territory of Georgia in South Ossetia in 2008. The list of crimes
includes murder, deportation of population, persecution, destruction of the property of
ethnic Georgians by South Ossetian forces, and intentional attacks on peacekeepers,
both by South Ossetian forces against Georgian peacekeepers and by Georgian forces
against Russian peacekeepers. This investigation is ongoing.
The Nov. 16 statement by the Russian Foreign Ministry specifically referred to the
investigation into the 2008 events in Georgia, suggesting that it was biased in favor of
Georgian interests, and concluding that “[w]e can hardly trust the ICC in such a
situation.”
OTHER THAN AS AN ACT OF CRITICISM AGAINST THE ICC, RUSSIA’S RECENT
ACTION REGARDING THE INTERNATIONAL CRIMINAL COURT ACCOMPLISHES
NOTHING
Nevertheless, other than as an act of criticism against the ICC, Russia’s recent action regarding the
International Criminal Court accomplishes nothing. Russia was not a member of the ICC, so it does not
constitute a withdrawal from the Court. Moreover, because the actions being investigated occurred in
Ukraine and Georgia — countries that have accepted the jurisdiction of the ICC — the investigations will
move ahead (albeit, presumably, with little or no Russian cooperation).

b. Parties

c. Contention of the parties

d. International Law or Policy applicable

e. Application