Editorial | Biden’s moral dilemma in prosecuting Putin

RUSSIA’S VLADIMIR Putin, as Joe Biden claims, may indeed be a war criminal who is permitting genocide in Ukraine, which his country invaded.

“...We have to gather all the evidence and have a war crimes trial,” Mr Biden said.

Despite the support Mr Biden has received from the West, many countries will probably find America’s posture a bit rich, given its normal posture towards the International Criminal Court (ICC). Washington refuses to hold itself accountable to the ICC.

At the same time, Mr Biden’s stridency on the matter also renews questions about Jamaica’s position on the court, whose treaty Kingston is still to ratify.

Established by the Rome Statute of 1998, the ICC, which has been in operation since 2002, was intended to be a standing global bastion against impunity. It would investigate and prosecute claims of genocide, crimes against humanity, war crimes and crimes of aggression – especially in circumstances where domestic courts were either unwilling or incapable of taking on such cases.

Previously, matters of the kind, behaviour that was especially abhorrent to the international community, were prosecuted before special courts, such as the one in Nuremberg that tried Germany’s Nazi leaders after World War 2; or the International Criminal Court, for the former Yugoslavia, that heard the cases against the alleged war criminals of the Balkan wars of the 1990s; and the International Criminal Tribunal, for Rwanda, which prosecuted the perpetrators of the 1994 genocide against that country’s Tutsi ethnic group.

Notably, Jamaican Patrick Robinson served as a judge, and later president, of the court for the Balkan wars. Dennis Byron, the St Kitts-Nevis-born former president of the Caribbean Court of Justice (CCJ), did the same with respect to the Rwandan tribunal. Further, it was a 1989 speech at the UN General assembly by the then Trinidad and Tobago prime minister, A.N.R Robinson, that replanted the idea of a permanent international criminal court. Here, though, is where America’s position might become, if not legally, then morally sticky.

Russia is not a member of the ICC. While it signed the Rome Statute, it never ratified the treaty. In 2016, the Russians ended any move towards accession to the court after the ICC ruled Moscow’s annexation of Crimea to be an “ongoing occupation”. On the other hand, while Ukraine has not ratified the Rome Statute (it claimed constitutional roadblocks), it had twice, even before the current situation, invoked certain clauses in the treaty that allowed the ICC specific jurisdiction in its territory.

In contrast, the United States of America, though initially welcoming of the idea of the ICC, turned, at best, lukewarm, and more often hostile towards the institution, especially at any suggestion that its nationals might fall under its jurisdiction. So, while Bill Clinton’s administration signed the treaty, the document was never approved by Congress and, therefore, never ratified. No subsequent administration, including Mr Biden, has made any serious attempt to get congressional acceptance of the Rome Statute.

Further, in 2017, during the Trump administration, the State Department cancelled the US entry visa of the ICC chief prosecutor, Fatou Bensouda, in retaliation for the Gambian’s announcement that she was opening investigations of alleged war crimes by America and coalition forces in Afghanistan. The Americans said that they would themselves investigate claims of misconduct and crimes by their troops. Washington has adopted a similar posture whenever the prospect of the court investigating Israel’s military for its actions against Palestinians has arisen.

Against this backdrop, the United States may not be the politically ideal proponent of the case for Mr Putin being dragged before the ICC judges in The Hague.

But the court also faces other issues of perception. Many people suggest that its deployment has not been even-handed, and that the Western powers and their leaders are insulated from the court. Some claim, too, that the ICC delivers victors’ justice. Indeed, it is primarily African leaders – the first 22 cases and 32 individuals – usually after they have been defeated in civil wars or removed from power after long periods, who have found themselves before the court.

Put another way, a lingering view is that it is either black Africans or non-Western leaders who are the primary targets for the ICC. Mr Biden, as he presses his cases against Mr Putin, can help to change these perceptions of the court by going out to bring the United States of America within its remit. Other Western leaders can also help by removing the ramparts that usually go up around their citizens and institutions with the first hint of ICC drawing near.

In the meantime, we last asked the Jamaican Government about its position on the ICC in September 2018. There was no response. Perhaps Prime Minister Andrew Holness or Foreign Minister Kamina Johnson Smith will now say whether Jamaica intends to ratify the Rome Statute, and, if yes, when, and why has the Government delayed doing so. Jamaica signed the treaty in 2002. That is two decades ago.