Russia to leave ICC: What's next for the Court?

A recent spate of departures may prompt a change in approach for the International Criminal Court.

On Wednesday, Russia issued a formal decree withdrawing from the ICC. The court has “failed to … become a truly independent and respected body of international justice,” the Russian foreign ministry said. Russia is the latest of four countries to announce its intent to leave the international tribunal. Over the past month, Burundi, South Africa, and the Gambia have all withdrawn their support.

The court was established in 2002 to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. But the recent departures may signal a shift in attitude on behalf of the court’s members, from cooperation with the activities of the ICC to a sense that they are being targeted. They have also raised the question of how the court will continue to prosecute cases, if countries investigated by the court choose to leave.

“Until now, countries have joined the Court but none have left,” writes Alex Whiting, a professor at Harvard Law School who formerly worked in the Office of the Prosecutor at the International Criminal Court, in an email to The Christian Science Monitor. “These withdrawals might make it easier for states to leave the Court in the future if there is a risk that they will fall under investigation, and that would in turn seriously undermine the legitimacy of the Court.”

One factor driving the decisions to leave, South Africa and others suggested, was a perception that the ICC was targeting African states. The court was once seen as a tool to help countries prevent and prosecute rights abuses where the local judicial system was weak or corrupt: Six of the nine cases brought by the ICC were referred to them by African governments. Now, some African nations say they are less positive about its efforts, and have even suggested that the court is racist.

Earlier this year, the tribunal opened its first case outside Africa: an investigation of the Russia-Georgia war of 2008. Russia was unhappy with the war crimes probe, but only decided to withdraw on Wednesday, shortly after a UN report condemned Russia’s “temporary occupation of Crimea.” 

Withdrawing from the Court would not necessarily protect Russia from an investigation of its actions in Crimea, said David Bosco, associate professor at Indiana University and author of a book about the ICC, “Rough Justice.” He told The Washington Post that, because Ukraine is a member, the case could still go forward.

This has led others to suggest that perhaps the move is a preemptive measure intended to shield Russia from a case involving its actions in Syria, where both Russia and the West have faced human rights criticism. Syria is not party to the Rome Statute, which established the ICC.

Professor Whiting notes that a substantial majority of countries still support the ICC. And losing countries like Russia, which signed – but never ratified – the Rome Statute, will have a limited impact on the functioning of the court.

At the same time, he explains, “It contributes to a general tone of hostility around the world to the principle of accountability and international institutions.”

“The existence of the court is not at stake,” Luis Moreno Ocampo, the ICC’s first prosecutor, told The Christian Science Monitor’s Peter Ford in October, following South Africa’s withdrawal. "But its relevance is a different matter."

That seems to be a shift from even a few years ago. In 2014, Naseem Kourosh expressed optimism about the trajectory of the ICC.

“The movement for global criminal justice is gaining momentum, and the ICC is at its center,” she wrote in the Georgetown Journal of International Affairs.

What will the ICC do in the face of these departures? Chief prosecutor Fatou Bensouda said her office would continue to “forge ahead” on its cases. UN human rights chief Zeid Ra’ad Al Hussein suggested that getting more countries to support the ICC might eventually win back those who have left.

Whiting suggests that a change in approach may help.

“The Court may have to do smaller cases, or cases that are innovative, like the prosecution of Ahmad Al-Mahdi in Mali for the destruction of religious and cultural property in Mali,” he writes 

By continuing to make judgments, the court can prove that it works and, he hopes, inculcate a sense of accountability on human rights issues among the ICC’s members. That’s important to ordinary people, some suggest.

“Though the powerful may fear the court, victims everywhere plead for its involvement,” Prince Hussein emphasized.

Material from the Associated Press contributed to this report.