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The ICC  A Global Political Pawn : The Case of Ukraine and Africa Law and Justice

African Institute For Strategic and Security Study

Dawit W Giorgis 

The idea of law evolved from the compilation of regulations and rules promulgated  by the government. It defines the duties of citizens and prescribes punishment for violations. Justice is an idea of morality, fairness, equality and security. Law is the  part of the justice system that focuses on prevention and investigation through  punishment. The law itself can be unjust if the makers of the law are illegitimate or  wrong because they do not give the kind of justice that humanity and morality  demand. Law is the instrument to get justice and both are usually flawed. The  enforcement of both domestic and international laws do not necessarily mean that  justice has been rendered. There are many factors that make it so. When even good  laws are manipulated like in the cases we will be discussing, International law becomes a Global Political Pawn. International society has high expectations from  the International Criminal Court (ICC) in terms of addressing genocide and crimes against humanity and war crimes. 

Credos like ‘ending impunity’ and ‘delivering justice’ would never be found  credible in a domestic criminal law system, since all criminal law can do is  strive after reducing impunity and contributing to feelings that justice is  served, in close cooperation with other enforcement and support systems that  aid these causes too. With the added complications that the transnational  space brings, such strange and utopian promises should have no place in  international criminal law.1 

Politics both domestic and international, have in many cases made justice arbitrary or merely serve the interest of a particular group or groups of nations despite  humanity’s quest for the search for fairness and neutrality. The ordinary people of  the word strive, vote, struggle and die for a fair decision-making process that is  apolitical and devoid of manipulation for self-interest. But these best wishes of  people ignore the social context and diversity in which law functions. It fails to  account that: 

….law is based on and is an outcome of political choice…..It overlooks that  law reflects the outcome of a political struggle and thus is the product of  power, and as such may embody and reinforce structural inequalities, power  relations and interests. Moreover, it ignores the constitutive or performative  power of law: that by including and excluding what is recognized as legal, relevant and convincing, law produces reality, symbolic orders and power, which constitutes in and of itself political force.2

Justice means many things to different people. It is deeply controversial,  philosophical and embodies different perspectives of ethics, equality, fairness,  values, religion. How and by whom justice is defined is deeply contested.  . “ …And this fundamental disagreement cannot be resolved by merely using the  language of law and treating it as an objective notion. It instead requires an  acknowledgement of the inherent political nature of seeking ‘justice’ for those  affected by atrocities. This therefore requires a more complex understanding of law  and politics than legalism tends to portray.” 3 


On the 24th of February, Russia invaded Ukraine. On the 25th of February, a day after  the invasion, the ICC Prosecutor General, Karim Khan “expressed his concern over  the Russian invasion of Ukraine and said his court may investigate possible war crimes in the country. He further stated: “I have been closely following recent developments  in and around Ukraine with increasing concern.”4 

On the 28th of Feb (four days after the invasion) the ICC Prosecutor announced: 

“ Today I wish to announce that I have decided to proceed with opening an  investigation into the situation in Ukraine, as rapidly as possible,” A preliminary examination can only be initiated if there is sufficient evidence of crimes to open an  investigation. He therefore added that he could go to “ ICC judges to approve the  inquiry, but it would be faster if an ICC member state referred the case to his office,  “which would allow us to actively and immediately proceed with the office’s  independent and objective. investigations.” This is contrary to his earlier statement  that he has: “decided with opening an investigation”, an indication of the rush to bring  the case again in the fastest period ever.  

Prosecutor Karim Khan also declared that the investigation will look at alleged  crimes committed before the Russian invasion, but added that “given the expansion  of the conflict in recent days, it is my intention that this investigation will also  encompass any new alleged crimes falling within the jurisdiction of my office that are  committed by any party to the conflict on any part of the territory of Ukraine” 6 

“I have already tasked my team to explore all evidence preservation opportunities.  The next step is to proceed with the process of seeking and obtaining authorization from the Pre-Trial Chamber of the Court to open an investigation. An alternative  route set out in the Statute that could further expedite matters would be for an ICC  State Party to refer the situation to my Office, which would allow us to actively and  immediately proceed with the Office’s independent and objective investigations.”7 All  the above actions of the Prosecutor general may look good, well done extremely  and expedient and portray him as a man of passion for justice who sincerely  believed “justice delayed is justice denied?” If judicial processes can be so easily avoided, and overridden, and if it were possible to look into other possible openings  in the procedure that could make the machinery of justice work faster, why was it not  possible to show a fraction of these concerns in the case of Ethiopia where the  Prosecutor to date did not even express that he was aware of crimes against humanity going on Ethiopia particularly Ethiopia. IN the case of Ethiopia it was not  even about procedures it is just none of the members of the ICC accepted that there was genocide and crimes against humanity going on in Ethiopia as I write this. The  war in the North did happen and many many needlessly sacrificed their lives and  some particularly Amharas, were selectively killed displaced and subjugated to the  excesses of human brutality.  

The established ICC procedure: “Preliminary examinations:  

The Office of the Prosecutor must determine whether there is sufficient evidence of  crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are  genuine national proceedings, and whether opening an investigation would serve the  interests of justice and of the victims. If the requirements are not met for initiating an  investigation, or if the situation or crimes are not under the ICC’s jurisdiction, the  ICC’s Prosecutor cannot investigate 8 

On April 13 the Prosecutor general visited Ukraine, the town of Butcha near Kiyev  and declared that Butcha is a crime scene where AFP reporters saw 20 bodies lying in the streets after Russian forces withdrew in late March. Since then the ICC  prosecutor stated that he has visited Ukraine three times ( CNN interview, Sept 9)

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