The International Criminal Court is an essential tool to give justice to the victims of war crimes. However, it can also be a deterrent to contain the military escalation of diplomatic crises. Especially if the superpowers would recognize its jurisdiction by Andrea Monti – Adjunct Professor of Digital Law in the degree course in Digital Marketing at the University of Chieti-Pescara – Initially pubished in Italian by Formiche.net
Machtpolitik and the impotence of International Courts
Article 41 of the UN Charter confers to the UN Security Council the power to establish international tribunals to investigate and sanction genocide and war crimes. However, like the other activities of the Security Council, the establishment of these courts is subject to the geopolitical interests of the individual components. It prevents the actual effectiveness of a vital instrument to respect international legality.
In addition to the ad hoc tribunals of the UN, there is also the International Criminal Court which is not a UN body since it was established by the Treaty of Rome . However, neither Russia nor USA – the two actors in the Ukrainian crisis – acknowledge the jurisdiction of the Court. None of them is among the nations that have signed and ratified the Treaty of Rome. Once again, another essential instrument for the respect of international legality is ineffective concerning those countries which, having the status of a superpower, should ‘lead by example’ and self-limit their power by submitting to the rule of Law.
The geopolitical role of the Rule of Law and the International Criminal Court
This conclusion is not as naive as it might seem because it delineates the boundary between (geo)politics and Law and highlights the underutilization of the latter as a tool for managing international relations.
The submission of superpowers to the authority of an independent criminal court would be an element of deterrence. It would discourage public narratives built upon the appearance of legality behind which to hide decisions on raw power and not on Law.
A containment system including superpowers based on treaties and international agreements against illegitimate aggression would make it more challenging to implement “leaps forward” if not at the cost of placing oneself clearly and unequivocally on the wrong side. In case of escalation, it would also allow the use of international legality as an instrument of clear demarcation between the parties involved – or in conflict.
It is not a question, in other words, of vainly claiming an abstract primacy of Law in the name of principles detached from the concrete and often brutal needs of politics. On the contrary, it is a matter of recognizing that Law is and has a (geo)political function and therefore should be used for prevention and deterrence.
Law, politics and “state of emergency
The lack of foresight in recognizing the geopolitical role of Law – lawfare – is evident in moments of crisis, where the technical use of norms is systematically set aside ‘in the name of emergency’.
We have seen it happens during the pandemic. Now it happens again in strategic assessments to manage the Ukrainian crisis. Thus, the emergency —or the emergency of avoiding the emergency— zeroes the possibility to follow legality principles to achieve objectives on whose substance there can be no discussion.
This grossier use of community and national Law has a boomerang effect on the ideological positioning of the Western alliance. It risks weakening the widespread support for the choices of the executives.
If democracy, liberty, and the Rule of Law are the pillars of liberal systems, these pillars should be reinforced to support political decisions in moments of crisis. As it has been noted,
on the one hand, … governments are entitled to have a free hand in determining their political agenda, but, on the other, … must be subject to scrutiny to ensure that freedom is not abused. … By asserting the ineluctability of the rule of law over police, judicial, and military powers to protect citizens from attacks on national security, the abuse of those powers can be controlled.
Legal shortcuts in the name of the emergency —especially when there is still room to resort to Law and rights— backfires. Firstly, it allows the adversary to stigmatize the inconsistency of those who declare themselves servants of the Law to be free, but in reality, they evade it. Moreover, it affects the internal political debate, reducing the Parliament’s effectiveness and the executive’s action.
The International Criminal Court as a geopolitical instrument
Indeed, it will not happen, but it would be a sign of extraordinary farsightedness and pragmatism to include in the negotiations for overcoming the Ukrainian crisis also the adhesion to the Treaty of Rome of the belligerent countries and their supporters who are not yet part of it.
As mentioned, such a choice would increase diplomatic options in managing future conflicts. Moreover, in terms of pure realpolitik, it would offer the possibility of identifying (or constructing) a way of separating the destinies of a State from those of an executive (or of its components).
It is useful, in this regard, to read the analysis of the phenomenon of the “scapegoat” that Prof. Maurizio Catino:
To say that a president should think about how to avoid being blamed for events resulting from his actions is to say that the president must always think about what will happen when (not if) things go wrong. Politicians are motivated more by a desire to avoid blame for unpopular actions than by a desire to claim credit for popular ones. Consistent with Kahneman and Tversky’s  prospect theory, this stems from voters’ “negativity bias,” i.e., their tendency to be more sensitive to actual or potential losses than gains. Incentives to avoid blame lead politicians to adopt a variety of policy strategies, including: limiting the agenda, i.e., not considering potentially costly choices; “passing the buck,” forcing others to make politically costly decisions; and “jumping on the bandwagon” of the winner, supporting more popular policy alternatives. Politicians would thus make different decisions than they would if they were primarily interested in pursuing good policy or maximizing opportunities to claim the credit. Adding to the strategies of deflecting blame is creating a scapegoat, either internal or external to one’s organizational context, to thereby deflecting blame to others.
These considerations relate to individual behaviour but are reasonably applicable to complex structures and thus to states. What is needed —hence usefulness of the ICC— is the tool to implement them.
The international courts in charge of judging genocides and war crimes operate very limitedly because of the mutual vetoes opposed by the superpowers and their failure to ratify the Treaty of Rome on the International Criminal Court.
These choices reflect the will to implement strategic and tactical options without formal limitations and without the risk of having to suffer —or have their operators suffer— sanctions from the international community. In this way, however, the founding principles of Western democracies are reduced to a simulacrum.
Considering Law as a useless frill even when international crises have not yet degenerated into a multilateral armed conflict is a short-sighted choice that, in a liberal democracy, reduces the options available to decision-makers and favours the adversary propaganda.
Extending the accession to the Treaty of Rome can be an essential tool to (try to) avoid escalation and (help to) manage the de-escalation of conflicts, allowing an intermediate intervention before the transition to open conflict.