The International Criminal Court – Who Runs the Show?

Last month marked the 20th anniversary of the invasion of Iraq, arguably the most significant catastrophe of the so-called ‘War on Terror’, which resulted in the deaths and displacement of many Iraqi citizens under the guise of fighting ‘terror’. From the beginning and throughout its duration, it was evident that such an invasion was wholly unjust and based on faulty intelligence. Despite the significant loss of civilian life and the lingering adverse effects of the invasion, no one, including George W. Bush and Tony Blair, has ever been sanctioned by the International Criminal Court (ICC) for their roles.

Meanwhile, last month also saw the president of Russia, Vladimir Putin, issued with an arrest warrant by the ICC for potential war crimes.

Consequently, it begs the question, why did the ICC act so swiftly to indict Putin but fail to charge both Bush and Blair for their roles in the invasion of Iraq?

While the US and UK sought to topple the dictator, Saddam Hussein, it proved that it would not be easy as the UN Charter forbids regime change. Indeed, if it was permitted, powerful nations could travel about the world attacking the less powerful – or, more specifically, governments perceived to be antagonistic to their own aspirations. As a result, the only way out of this predicament was for the Bush-Blair alliance to conceive a threat. This was accomplished by the deliberate manipulation of inaccurate intelligence about the presence of weapons of mass destruction (WMD) in Iraq and the fraudulent allegation that Hussein was capable of deploying such WMD “within 45 minutes”. Furthermore, by the time of the invasion, no UN Security Council authorisation was given. In the end, Hussein’s regime was deposed, but no such WMD was ever found, and many Iraqi citizens lost their lives due to something which proved to be nothing more than a fabrication. Moreover, the lingering instability as a result of the invasion inevitably contributed to the rise of the so-called Islamic State in Iraq, which then mutated into ISIS. However, despite all the criticisms and evidence against them and their motives, neither Bush nor Blair was ever sanctioned by the ICC for their roles in such a catastrophic invasion and its outcome.

The Rome Statute of the ICC was formed in 1998 to investigate and prosecute individuals who commit international crimes. War crimes, crimes against humanity, genocide, and the crime of aggression were all agreed upon as prosecutable transgressions. However, only the first three have ever been implemented. While the act of aggression cannot be prosecuted, subsequent war crimes can. Consequently, launching an attack, such as the invasion of Iraq, knowing that the outcome is likely to inflict incidental death or injury to civilians or the natural environment (Article 8) will make the perpetrator accountable to prosecution. This also includes what is euphemistically known as collateral damage via cluster bombs and depleted uranium by US and UK forces in Iraq which killed and impacted many civilians. However, even amidst all of this, no action has ever been taken by the ICC against those responsible for the invasion of Iraq.

Whilst the US is not a party to the Rome Statute of the ICC and hence does not recognise its jurisdiction, neither is Russia, who withdrew its signature from the statute in 2016, a day after it had published a report condemning Russia’s 2014 annexation of Crimea and calling it an “occupation” (although Moscow never ratified the treaty and thus remained outside of its jurisdiction). This raises the question – how authoritative is the ICC if two of the world’s three great powers (the other being China) are not even party to it? Nevertheless, the ICC still publicly indicted Putin, but it has steered clear of indicting Bush or Blair. Moreover, the ICC did say that it would look into US war crimes in Afghanistan; however, after US threats and sanctions, it pivoted and suspended an investigation. Again, this shows how impotent the court is when dealing with great powers, particularly the US.

The ICC is yet to live up to expectations. Trials for war crimes and crimes against humanity have only been completed in a handful of cases. As of 2020, 22 years after its establishment, the ICC opened more than two dozen cases, and three were in pre-trial or trial processes. However, just a few war crimes and crimes against humanity prosecutions have been completed, with four people convicted and four others acquitted. On the other hand, the ICC has carried out most of its indictments against African, primarily black Arabs, and leaders of poor and weak nations. Consequently, this has led to accusations of Eurocentric bias and even racism. Meanwhile, numerous legal consortiums, academics, journalists, and organisations called on the ICC to take action against Bush and Blair on the basis of war crimes for their roles in the invasion of Iraq. Yet, nothing happened. Both Bush and Blair continued their daily lives without being held accountable.

Ultimately, the ICC’s failure to indict George W. Bush and Tony Blair questions its authority. However, even amidst this, Vladimir Putin was still publicly indicted. Whether or not such an indictment has a bearing (as Russia does not recognise the ICC’s jurisdiction), it still symbolises Putin as a war criminal from their perspective. Meanwhile, the failure to indict both George W. Bush and Tony Blair, even in a symbolic sense, was in the least a dire mistake that  overlooked the atrocities of the so-called War on Terror. Consequently, it is essential that the ICC learns from its mistakes, works hard to correct them, and overall improves its effectiveness in holding those guilty of perpetuating injustices to account. Without this, the ICC will have limited credibility.