Russia and the International Criminal Court: Barriers and Opportunities

The International Criminal Court is the most important institute of contemporary international criminal law. For the first time in history, the international community managed to create a permanent universal court for the most serious crimes. However, 71 member-states of the United Nations, including the United States, Russia and China, still have not acceded to the Court. In the U.S., there has been a substantial academic and policy debate about the utility of ratifying the Rome Statute, Russia hedged off the Court in silence. Therefore, it is important to investigate the reasons why Russia has not ratified the Statute, and give a policy recommendation whether it should or not.

The International Criminal Court is the most important institute of contemporary international criminal law. For the first time in history, the international community managed to create a permanent universal court for the most serious crimes. However, 71 member-states of the United Nations, including the United States, Russia and China, still have not acceded to the Court. In the U.S., there has been a substantial academic and policy debate about the utility of ratifying the Rome Statute, Russia hedged off the Court in silence. Therefore, it is important to investigate the reasons why Russia has not ratified the Statute, and give a policy recommendation whether it should or not.

Political Issues

The political barrier to ratifying the Rome Statute has both foreign and domestic dimensions. The biggest concern for great powers is a criminalization of aggression, which is going to be included in the Rome Statute in 2017 [1]. Although the concept of crimes against peace was introduced at the Nuremberg trial in 1945 [2] , the United States and the Soviet Union waged a number of interventions (Vietnam, Afghanistan, Panama) in the next four decades without facing legal consequences, or being affected by them (e.g. Nicaragua v. United States, ICJ, 1986) The problem with the crime of aggression was its definition, which was not firmly anchored in the international criminal law until 2010, when the ICC Review Conference in Kampala finally accepted it:

“Crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations [3].

Accordingly, conducting military interventions, waging local conflicts, or supporting insurgency inside a foreign country may hold heads of states criminally responsible. This is especially relevant for the United States, Russia and China. Each of these great powers conducts active foreign policy and projects its power on its neighbors and beyond, and none of them would like to see its political leaders and military commanders tried in The Hague.

Russian foreign policy became much more active in the former Soviet Union area. Russian interventions in internal conflicts in Georgia, Ukraine and Moldova created a set of tiny unrecognized republics (Abkhazia, South Ossetia, Transnistria, Donetsk and Lugansk People’s Republics) and seriously destabilized its neighbors. Ukrainian and Georgian leaders condemned these interventions as a violation of international law (1, 2). Georgia filed appropriate complaints to the International Court of Justice and the International Criminal Court (See Georgia v. Russian Federation, 2011 [4] ), and Ukraine is currently preparing similar lawsuits. However, the Russian side asserts that it acted in support of self-determination of oppressed ethnic minorities. Furthermore, just after the so-called reunification of Crimea with Russia, Vladimir Putin referred to the UN Charter and the right of nations for self-determination, in order to justify the annexation.

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Practically speaking, President Putin views Russia’s political and military advantage over its neighbors as a crucial instrument for preventing encirclement by unfriendly regimes and NATO military bases. As a hardline political realist, he believes that protecting his state’s security and regional influence is an absolute priority, which cannot be disputed by the ICC regulations. Moreover, President Putin, Foreign Minister Lavrov, Defense Minister Shoygu generals might fear that the ICC may become the European Union’s instrument for toppling unwanted foreign leaders, without organizing costly “colored revolutions.” Furthermore, lessons learned from NATO intervention into Bosnia and Kosovo, and the International Criminal Tribunal for the former Yugoslavia, suggest that international tribunals function on vae victis principle. After bringing Yugoslavia to a breaking point by bombings, NATO simply punished the losing side for daring to oppose the hegemon Domestic politics in Russia is another trouble. During the two Chechen wars, both western journalists and Russian opposition media accused the Russian army and government of genocide and war crimes. This experience prompted Mr. Putin that preserving his country’s territorial integrity stands beyond some vague ethical standards, and, when a “sovereign democracy” is dealing with terrorists and rebels, no outside power may interfere.

However, there are several arguments to contest the “anti-Hague” position. First, if Russia ratifies the Rome Statute today, the ICC will not have a right to prosecute Russian citizens ex post facto (Article 11 of Rome Statute).

Second, there is no secessionist movement. Several dozens of insurgents, scattered around the Caucasus Mountains, are rather terrorists than regular combatants. Usually, they do not carry arms openly and do not wear fixed distinctive signs. . Therefore, if captured, they have no right to be treated as the prisoners of war under Common Article 3 of the Geneva Conventions [5].

Third, Russian state leaders are not likely to be internationally prosecuted for crimes against peace in the near future. Although the Kampala Conference adopted the definition of aggression in 2010, it will not be used in the ICC practice at least until 2017 [6].

Fourth, if Russia’s neighbors and adversaries become parties to the ICC, it will not matter if Moscow recognizes the Court’s jurisdiction or not, as they still will be able to refer crime situationsto the Court. Georgia has been a party since 2003, and Ukraine recognized the ICC jurisdiction in February 2015.

Finally, the Russian legislation already has appropriate provisions to prosecute individuals for planning and conduct of an aggressive war (Penal Code, Article 353), use of prohibited warfare methods (Article 356), and genocide (Article 357). Therefore, the Rome Statute will not establish any new crime definitions within Russian criminal legislation, it will only complement the existing ones.

LEGAL ISSUES

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Most of the legal obstacles to Russia’s accession to the ICC pertain to the collisions between the Rome Statute and the Constitution of the Russian Federation. It is noteworthy that the Rome Statute is a hard treaty, which prohibits any reservation (Article 120). For this reason, the collisions may be resolved either by amending the Constitution, or by interpreting Russian legislation in a way consistent with the Rome Statute and international law. Worthy of note, Russia recognizes general principles of international law as an integral part of the Russian legal system (Article 15(4) of the Constitution), which makes a second way of collision resolution easier.

First, Article 118 of the Constitution prohibits any extraordinary courts, not established by the Federal Law “On Judicial System of the Russian Federation” [7]. Being not incorporated into Russian judicial system, the ICC may indeed be considered as “extraordinary.” However, if Russia ratifies the Rome Statute, the ICC decisions will be enforceable under Article 6(3) of the same Federal Law [8].

Second, Article 61(1) prohibits an exile or extradition of Russian citizens. Article 63(2) permits a surrender of a person indicted for a certain crime, based on the federal law or international treaty. The Rome Statute uses the term “surrender” instead of “extradition,” (Article 89 of the Statute). Therefore, the procedure may be interpreted as consistent with the Russian legislation.

Third, Articles 91 and 98 provide immunity for the President and the Federal Assembly members. If Russia ratifies the Rome Statute, these privileges will not be valid, as long as the Statute applies “equally to all persons without any distinction based on official capacity.” (Article 27 of the Statue). However, individual responsibility of commanders and government officials has become an established legal principle. It was introduced by the Nuremberg trial [9], reiterated by the Article IV of the Genocide Convention (1948), ratified by the USSR in 1954, rooted through the Yugoslavia [10] and Rwanda [11] tribunals, and finally came to the Rome Statute.. Thus, President the members of the Federal Assembly are personally accountable under the norms of international law without any reservation.

Fourth, Article 47(2) guarantees the defendant’s right for a jury trial, while the Rome Statute does not. Instead, it provides for a trial by a Chamber of three judges. One might think that a Russian citizens tried by the ICC will be derogated from his/her right for a jury trial. However, such a discrepancy does not constitute any collision. A jury trial was established within a national legal system in order to prevent judicial mistakes, and is not supposed to apply to an international court. Moreover, the Rome Statute provides that the judges should be chosen from the persons of the highest moral and professional standards (Article 36(3)(a)), which is fair enough to expect a fair and impartial judgment.

Fifth, Article 50(1) provides that nobody should be subject to double jeopardy. The ICC is supposed to complement to national criminal jurisdictions, not substitute it. However, Article 17 of the Rome Statute provides grounds for the ICC to try an individual again, if the state is unable or unwilling to genuinely prosecute. The reason is, a so-called sham trial has been a common practice in troubled autocratic countries, which usually cover their criminals. However, Russia does not know any examples when a notorious war criminal would be released. Most serious war crimes of the Chechen War have been investigated, and the criminals, such as Colonel Budanov and Captain Ulman, convicted. Thus, double jeopardy is not likely to become a problem.

BENEFITS FOR RUSSIA

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Alexey Ilin:
Alignment with the ICC: a Case to Enforce
Helsinki Decisions

Some of Russia’s objections to ratifying the Rome Statute are illusive, while others are manageable by appropriate amendments to the national legislature. At the same time, Russia could reap certain benefits from joining the ICC.

First, Russia may be interested in vesting the ICC with an anti-terrorist mandate. Professor Ron Sievert (2006: pp. 108-110) proposed to use the ICC as a universal trial for terrorists [12]. The necessity for a universal trial comes from the difficulty to prosecute the members of a multinational terrorist organization in separate jurisdictions. For example, in the aftermath of the Boston Marathon bombing, it became clear that certain terrorists may be potentially claimed by both Russia and the United States. Therefore, the ICC could be the right Court to pronounce one and final judgement.

Unfortunately, international law does not have a universally accepted definition of terrorism. The 1999 International Convention for the Suppression of the Financing of Terrorism and the United Nations Security Council Resolution 1566 contained such definitions, but they were not universally adopted by all the UN members. Nevertheless, in the near future, the Court or the United Nations may adopt a universal definition, based on the aforementioned Convention and Resolution, if the parties reach consensus [13]. Currently, the Court may interpret terrorism as a crime against humanity, and prosecute terrorists for the acts of murder, extermination and torture (Article 7 of the Statute).

Second Russia may improve its international reputation by ratifying the Rome Statute. Russia has consistently argued for consolidation of the international law norms and principles in contemporary international relations. Each of the Russian Foreign Policy Concepts (2000; 2008; 2013) reflects that position. Moreover, Russia has actively participated in the International Law Commission and the Rome Conference, which drafted the ICC Statute [14]. Therefore, it is illogical for the Kremlin to abandon the international rule-making process instead of heading it. Re-engagement with international legal institutions may prevent Russia’s diplomatic isolation, which resulted from the Crimea annexation and the Donbass war. Alternatively, Russia risks falling into one ditch with the world’s bitterest autocracies, such as Sudan, Zimbabwe, and North Korea.

Third, ratification of the Rome Statute will facilitate normalization of Russia’s relations with neighboring countries. As the Russian government and military leaders become personally bound by the ICC non-aggression norms, Moscow will not be perceived it as a threat by its neighbors anymore. Furthermore, Russia’s accession to the ICC will encourage these countries to do the same. In 2015, only Georgia, Moldova, Tajikistan and the Baltic states were parties to the ICC. If Russia leads the way, the Former Soviet Union area will regard no more as a blind spot for international criminal law.

CONCLUSION AND POLICY RECOMMENDATIONS

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Most of the barriers to the ratification of the Rome Statute by the Russian Federation are artificially constructed and do not exist in the real political-legal environment, while others may be resolved by amending the national legislation. The challenges may be turned into advantages, such as the international prosecution of terrorists and improvement of Russia’s international image. For these reasons, we conclude that Russia should become a party to the International Criminal Court in the next three years. This time span is sufficient to harmonize the national legislation with the Rome Statute and conduct a reform of the national judicial system. We also advise the Russian government to follow four policy recommendations.

First, it is important to reconvene the working group on the legal consequences of the Rome Statute ratification. This group should elaborate and propose concrete amendments to the Russian Constitution, federal laws and the Penal Code.

Second, the working group should ask the Russian Constitutional Court for an advisory opinion on the concepts of “surrender” and “complementarity,” and their admissibility to the Russian legislation.

Third, Russia should resolve “frozen conflicts” and territorial disputes with its neighbors. In particular, Russia and its foreign counterparts need to determine the legal status of Transnistria, Crimea, Abkhazia and South Ossetia. After ratification of the Rome Statute, Russia should refrain from supporting any secessionist movements, because such a policy may be interpreted as a crime against peace.

Finally, Russia needs to promote the elaboration of an official definition of terrorism through the UN system. This definition will assist Russia, the Court and the entire international community in their struggle against international terrorist organizations.

1. Amendments to the Rome Statute of the International Criminal Court: Adoption of Amendments to the Crime of Aggression. (2010, June 11). Kampala, C.N.651.2010.TREATIES-8.

2. International Military Tribunal (Nuremberg). Judgement of 1 October 1946, pp. 24-25 Retrieved from http://crimeofaggression.info/documents/6/1946_Nuremberg_Judgement.pdf

3. Amendments to the Rome Statute of the International Criminal Court: Adoption of Amendments to the Crime of Aggression. (2010, June 11). Kampala, C.N.651.2010.TREATIES-8.

4. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). (2011, April). International Court of Justice. Retrieved from http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=4d&case=140&code=GR&p3=4

5. Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Articles 3 and 4. https://www.icrc.org/ihl/INTRO/375?OpenDocument.

6. Amendments to the Rome Statute of the International Criminal Court: Adoption of Amendments to the Crime of Aggression. (2010, June 11).

7. Федеральный конституционный закон от 31.12.1996 N 1-ФКЗ (ред. от 05.02.2014) “О судебной системе Российской Федерации” (31 декабря 1996 г.), http://www.consultant.ru/document/cons_doc_LAW_158706/.

8. Там же, ст. 6(3).

9. “Crimes against International Law are committed by men, not by abstract entities.” See International Military Tribunal (Nuremberg). Judgement of 1 October 1946, p. 55. Retrieved from http://crimeofaggression.info/documents/6/1946_Nuremberg_Judgement.pdf

10. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (International Tribunal for the Former Yugoslavia). Adopted by Security Council resolution 827 (1993) of 25 May 1993, amended by Security Council resolutions 1166 (1998) of 13 May 1998, 1329 (2000) of 30 November 2000, 1411 (2002) of 17 May 2002 and 1431 (2002) of 14 August 2002. Article 7. Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalTribunalForTheFormerYugoslavia.aspx

11. Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994. Adopted by Security Council resolution 955 (1994) of 8 November 1994 amended by Security Council resolutions 1165 (1998) of 30 April 1998 , 1329 (2000) of 30 November 2000, 1411 (2002) of 17 May 2002 and 1431 (2002) of 14 August 2002. Article 6. Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatuteInternationalCriminalTribunalForRwanda.aspx

12. Sievert, R. (2006). A New perspective on the international criminal court: why the right should embrace the ICC and how America can use it. University of Pittsburgh Law Review, 68 (77), 77-129.

13. See Terrorism at UN.org, http://www.un.org/News/dh/infocus/terrorism/sg%20high-level%20panel%20report-terrorism.htm

14. Глотова С.В. Россия и международный уголовный суд: некоторые вопросы имплементации Римского Статута // Вестник Российского университета дружбы народов. Серия Юридические науки. 2007. №3. с. 72-78.