23/03/2023 strategic-culture.org  13min 🇬🇧 #225988

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Why Vladimir Putin Cannot Be Arrested by International Criminal Court

Tatiana Obrenovic

One should remember how many illegal invasions, brutal unprovoked aggressions, orchestrated colour revolutions and wars have the USA and NATO started and waged in the last century for years and decades to get a "bigger picture". 

All of you must have heard that an arrest warrant was issued a couple of days ago for Vladimir Vladimirovich Putin by the International Criminal Court. If it ain't so funny, we would cry our hearts out for the farcical potential of it and its underlying flawed logic. But first things first.

The 20th February 2023 is the 20th anniversary of the U.S. invasion of Iraq. One has to wonder what standards this (quasi) court is governed by? There is a rather long list of the U.S. brutal atrocities committed in Iraq in the military intervention commenced without the consent of the UN Security Council. One has to start with  Abu Ghraib and on to the numerous murders of civilians to the use of white phosphorus and regrettably, the list goes on...

Let us go back to the very beginning: its origin and its work so far and it turning into pure political ploy along the way. Namely, international criminal law recognizes only one international criminal court, which is exactly this one which issued the aforesaid arrest warrant whereas all the other legislature bodies have been tribunals. What does that mean?

These are  extraordinary, ad hoc courts i.e. legislation bodies formed for certain cases, which as a rule have been established for certain cases with the judges who were chosen after the crimes had been committed. The basic problem with such legislation institutions were their legitimacy because they were formed for some cases but not for a multitude of others. Another problem was their retroactivity. As a rule, these were established only after the criminal acts had happened. Thus one cannot be granted so-called the right to the natural judge because the person who gets to be chosen for the position of a judge has already established some attitudes and formed some opinions about the criminal acts which happened. You cannot form unbiased views, objectivity and disinterestedness, which one would get from a judge who is to be selected in advance for an indefinite number of cases and an indefinite number of people and does not know whom he or she will be trying..

International Criminal Court was formed with that idea in mind to right all wrongs and remedy all the errors of the international criminal legislation once and for all and replace all the tribunals in such a manner as follows: it would be founded in advance, the judges would be chosen in advance, and they would invariably try all the legal cases, it would not be selective in its work, and it would not be retroactive. Regrettably, it has for the past twenty years of its work since 2002 during the year of its becoming operative, proven that the basic rationale for its establishment and its intents and purposes has failed to perform.

For instance, in 2003 it was supposed to at least carry out an investigation about the U.S. aggression in Iraq, but the ICC did not do any such investigation. Neither has it instigated any legal proceedings. On the contrary, at this point as per the special military operation in Ukraine, the court found it incumbent upon them to start these legal proceedings and in cooperation with a high number of countries within the EU to work with them. What does that tell us?

It goes to say that the politics of indicting people in the international criminal prosecution bodies is done in the same way as it used to be in the international tribunals. It means that some cases are handpicked to be processed, some are simply leapfrogged and completely forgotten. And these cases which get to be handpicked for trials tend to be of course the political ones. If you take the legal criteria into consideration and shove them aside, the only thing that remains are political criteria. In 2003 when the aggression on Iraq happened, nothing that occurred during that war never found it reasonable to investigate it by anybody let alone to issue an indictment. That is not the only such case. Ever since 2003 there has been a number of similar cases which should have been subjected to the International Criminal Court's jurisdictions and expertise at least to initiate the proceedings for the judge/s to possibly find that there was no crime committed whatsoever. It did not even that in most cases other than those with the hidden political agenda.

In the case of the NATO aggression on the SR Yugoslavia (Serbia and Montenegro) the competent court was the ICC Hague Tribunal for the Former Yugoslavia, but given that the selectivity in its work has long been noted as one of their basic flaws, which render such courts illegitimate; it is also dubious how legal these are particularly, in the case of SR Yugoslavia. The prosecution led by Carla Del Ponte instigated the legal proceedings for alleged war crimes of NATO pact during the aggression and they drew conclusions that there were no legal grounds to instigate and perform the proceedings which was a shameful decision per se. Each citizen of SR Yugoslavia who lived there at the time witnessed a high number of NATO war crimes.

To get back to the U.S. invasion on Iraq in 2003, let us remember that 5th February when  Colin Powell flailed his arm up in the air stirring a plain looking test tube in the UN Security Council to try and use that as proof that Saddam Hussein and Iraq possessed the weapons of mass destruction. The U.S. invasion on Iraq started on the 20th March in a matter of two weeks the very same year. Even  the Guardian, in memory of the 20th anniversary, recalls the statement by Georges Benjamin Clemenceau that 'the war is a series of disasters which ends in victory' but the Guardian goes on to say that in case of Iraq, that 'invasion began with a victory but ended in a series of disasters'. A lot of war crimes and brutal atrocities committed by the U.S. in Iraq and a few other countries from Europe joined them too. Strangely, Germany for the first time in recent history refused to join the U.S. and UK in their invasion against Iraq and to stand underneath the flags of war of Bush Jr. A surprising triumvirate was created in this way with Jacques René Chirac the then President of France, Gerhard Schröder, the then President of Germany and Vladimir Putin the then and the present President of Russia, all three of them as if acting in unison under the same political slogan. Even now the Germans again keep repeating on this 20th anniversary that that war began with lies. With this newly issued arrest warrant against Vladimir Vladimirovich Putin, they claim that if the Russian President travels to another country, he should be arrested by that country. But things are surely much more complex than that.

In law, there are far more rules and far more principles which legal experts should take into consideration. Criminal liability of an individual who performs an international criminal act is one of them. However, these are not the only principles, rules and regulations in which international order is enshrined. If we take into account two or more sovereign states/countries, there is a principle of a sovereign equality of states to abide by.

One principle in the Roman law is Par in parem non habet imperium (which means "equals have no sovereignty over each other" in Latin). Another principle of law is: Nemo dat quod non - habet which means 'No one can transfer a better title than what he himself possesses' That means that those countries which formed the International Criminal Court and signed the Rome Statute so far cannot transfer therein more rights and titles than they had already had at the moment when they joined the Statute. If we go back to the moment before the establishment of the ICC, can the two countries, which are in the process of signing an agreement to regulate their mutual relations, impose any obligations onto the third country? Surely not. The third country did not enter into the very same agreement with them.

That goes to prove that they are equal in between themselves but they do not have any authority above the third country. The Rome Statute can't have been added to with more rights and titles the countries already have/had, which would like to have renounced the possibility for impunity of the holders of the highest positions they have in international law. Exactly so that one affirms the principle of sovereign equality of states in doing so: the president of a country, prime minister, minister of foreign affairs etc hold impunity against criminal prosecution before the criminal authorities of another country. No matter how many countries establish or then join the international criminal court simply cannot transfer more rights (titles) than they already have themselves. They cannot take legal action against the civil servant of the third country i.e. the president of the third country, their prime minister and so on.

For those of you who would like to read more on this, you should read the judgment of the International Criminal Court in the case of the arrest warrant issued for the case Congo vs Belgium 2002 for the Minister of Foreign Affairs of Congo because Belgium tried to issue an arrest warrant for him and to try him for the war crimes and crimes against humanity he allegedly committed in his own country. Congo put the two and two together and took legal action against Belgium before the International Court of Justice and won the case. The International Court of Justice made it absolutely clear with this resolution that Belgium had no authority whatsoever given that their minister of foreign affairs hold diplomatic impunity from criminal prosecution in any country. Moreover, the International Court of Justice issued a mandatory order to Belgium to revoke their arrest warrant. That goes to say that they affirmed the principle of sovereign equality in international relations in that the institute of (diplomatic) impunity, which is its extension and one formula to enable it and in doing so it upholds and reaffirms the relations between countries. If the countries are unable to impose the burden of criminal prosecution for the president of another country, prime minister etc, they cannot even transfer such authority to the International Criminal Court. Then they cannot do so to the third country either.

This arrest warrant by the International Criminal Court is not only illegal but it is contrary to the very rules enshrined by the international Criminal Court itself. All the more so because at the time it was formed, a high number of serious legal professionals participated in it and not only amateurs and neither those who were planning to abuse its principles and its functions or authority. You can read more here and particularly interesting The Rome Statute Article 98 paragraph 1 - all is clear:

Rome Statute Article 98

Cooperation with respect to waiver of immunity and consent to surrender

  1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
  2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

The decision who is to be arrested cannot be carried out if it is to do about any third country and the third country stands for any country which is not a signatory to the Rome Statute. This principle is enshrined in the Rome Statute exactly with the goal to observe and empower the immunity principle in the international criminal law because the International Criminal Court does not benefit from the situation if the arrest warrants get into a conflict with the third country/countries - non signatories. That would be completely unfounded because in that case it would appear that this court had been formed to cause conflicts of this nature in the first place. The non-signatories to the Rome Statute are some most powerful countries in the world such as Russia, China and not even funnily enough, the USA. Moreover, at the time when the International Criminal Court was established in 2002, the USA regardless of having been aware of the Article 98 they passed the so called American Servicemen Protection Act, which translates the law on protection of the U.S. civil servants and government officials, which is colloquially referred to as the Law on the Invasion of the Hague. For a simple reason, the ICC head office is in the Hague, the Netherlands. The U.S. Congress gave the power to the U.S. President to use any due power and force to protect any U.S. civil servant or government official, who would be accused or charged by the ICC and any country decides to dare extradite him/her to the ICC seat in the Hague. In that case even the U.S. President has an official duty to liberate that person from the place of arrest or detention of the ICC and in so doing to resort to any due power and force.

But Russia is not a signatory to the Roman Statute and mercifully countries cannot impose it to any other non signatories for all the aforesaid reasons. This is called the  principle of sovereign equality of states in international law. If any country or a state would have more or less rights and titles than any other would negate the UN Chart based on the non-interference with the internal affairs. One simply cannot determine the internal affairs of the third country by way of your own acts or laws.

Those who desperately decided to issue this arrest warrant at hand simply are confusing the issues here and the legal institutes such as the legal institute of impunity and the legal institute of liability and the competence/jurisdiction. They seem to think that if there is no impunity, there is invariably no competence/jurisdiction. Nobody is perfect and the government officials are legally liable but to the legislature in their own countries/ states. To cut this long story short, our highly esteemed Vladimir Putin is legally liable to the legislation in Russia only. He accepts the competence/ jurisdiction of his own legislature in his own state/country.

Even the ICC itself has presupposed such an issue emerging and thus they do not have any authorities scattered around the world to carry out the persecutions around the world and gather the accused individuals and deliver them to the Hague. They completely rely on the cooperation of the states signatories. But even if the signatories due to the nature of their mutual relations cannot accuse or charge their respective government officials, the ICC cannot interfere nor impose anything different nor are they under any of obligation to perform upon such warrant or order.

Let me illustrate all this with a very good example: in 2015 at the official meeting of the  African Union: the organization of African countries in South Africa  Al Bashir Omar was there, the President of Sudan, against whom at the time there was an arrest warrant issued by the ICC but South Africa refused categorically by referring to the principle of impunity of the Sudanese President to deprive him of his freedom but he spent three days 'in merriment and joy' in South Africa while participating at the official summit. He got back. When the ICC insisted on this arrest warrant to be performed on fully but South Africa initiated the process of their own withdrawing from the Rome Statute. They were ready and poised to confront the insanity of the ICC because if that would get them into a serious conflict with Sudan their neighbouring country. All in all, the legal systems in both Sudan and South Africa are much older historically, legally and politically than the ICC.

One should just remember how many illegal invasions, brutal unprovoked aggressions, orchestrated coloured revolutions and wars have the USA and NATO started and waged in the last century for years and decades on end, to get a 'bigger picture'.